Factors Affecting The Amount Of
Damages Awarded
Nature, Extent, and Duration of Injury
In a personal injury case, the most important factors which
determine the amount of damages awarded to the injured person
are the nature, extent, and duration of the injury or injuries.
A severe case involving skeletal, ligament, or nerve trauma is
more apt to qualify for greater compensation than a minor case
of whiplash or back strain, painful as the latter conditions
might be. Furthermore, severe injuries are strongly supported
by medical documentation such as x-rays and CAT scans, whereas
some soft tissue injuries involving only muscle are difficult
to detect by standard procedures. Other medical elements contributing
to the viability of one's personal injury case include the permanence
of the injury as well as the extent of treatment required, such
as surgical intervention and/or long-term rehabilitation. Clearly,
cases that can be supported by solid medical documentation have
the potential for greater monetary damages to be awarded.
Defendant Liability
In a personal injury case, the defendant's liability (or degree
to which he or she is at fault) must be determined. If an individual
is completely responsible for an injury suffered by another,
the compensatory damages awarded to the victim will be the full
amount requested. If, however, the victim is found to be partially
at fault in the incident, the amount of damages awarded may be
reduced. In some instances, there may be more than one viable
defendant and damages may be assessed in proportion to each defendant's
culpability.
Comparative and Contributory Negligence
Comparative and contributory negligence are defenses available
to mitigate the amount that a defendant may have to pay to a
plaintiff for damages. Each of these defenses is based on an
assessment of fault towards the plaintiff. Depending upon the
laws of the state where the case is venued one of three different
versions of these defenses may be applicable. Pure contributory
negligence is, by far, the most oppressive to the plaintiff.
In those states that allow this defense if a defendant can prove
that the plaintiff is one iota to blame for the accident, then
he or she recovers nothing. For instance, if the evidence shows
that a defendant was speeding and went through a stop sign and
that the plaintiff was only one percent at fault because he or
she didn't swerve or brake quickly enough, then the plaintiff
may be entitled to no recovery.
Less oppressive to the plaintiff and more
prevalent are the two different versions of comparative negligence.
The first version is what is commonly known as "pure" comparative negligence. In "pure" comparative
negligence, the award of damages to the plaintiff will be reduced
in direct proportion to the plaintiff's percentage of fault,
no matter what the ratio. For instance, if you are 30 percent
at fault for an accident, you could recover 70 percent of your
damages. If you are 70 percent at fault for an accident, you
could recover only 30 percent of your damages. All of the other
parties alleged to be at fault would then be responsible for
paying you 30% of your total damages, apportioned between them
in proportion to the amount of fault assigned to them.
The last of these defenses is also fairly
common amongst the states. It is known as "limited" comparative
negligence. With this version, in order to be able to receive
any damages the plaintiff must be no more than 50 percent at
fault for the injury. If the plaintiff is no more than 50 percent
liable, but is still partially at fault, then the award of
damages will be adjusted according to the plaintiff's percentage
of fault and the plaintiff's award will be reduced accordingly.
For example, suppose a jury awards you $100,000 in damages
as a result of a car accident, but it finds you 30 percent
at fault for your injuries because you did not properly use
a signal. After applying comparative negligence, you would
be entitled to $70,000 in damages - $100,000 minus 30 percent.
In the above example, the judge or jury determines the degree
of the each party's negligence and apportions to each party
a percentage of the total damages suffered, based on each party's
percentage of fault for causing your injury. If you were found
to be 51 percent liable, you would be unable to collect any
amount.
Credibility of the Parties
Another factor that may impact upon the value
of your claim in a personal injury case is something known
as "jury appeal." This
complex combination of personality elements is significant in
determining the likelihood of receiving the damages to which
you are entitled. Characteristics that can help you win over
a jury include being clear, detailed, and well-spoken in describing
the events surrounding your case. Juries are also more apt to
be convinced by statements that are supported by documented evidence
in combination with a truthful, anecdotal recounting of the accident.
The jury's perception of the defendant is also very important.
If the defendant is viewed as untruthful or reckless or attempts
to shirk responsibility for the accident, a jury is more likely
to be sympathetic to the plaintiff's side. A good attorney will
always try to find inaccuracies in the defendant's version of
events to diminish his or her credibility as much as possible
and increase the chances of a positive result.
Age of the Plaintiff
It is perhaps an unfortunate fact that the age of a plaintiff
can demonstrably affect the amount of damages awarded in a personal
injury case. The logic in the system lies in the understanding
that a younger person who suffers a severe injury is subject
to many more years of pain, suffering, and mental anguish than
an older victim. The monetary loss to a younger person who has
a greater number of wealth-building years ahead is also estimable.
Witness Testimony
The witnesses who testify on your behalf can greatly affect
the outcome of your case. Ideally, a witness should be able to
describe in detail the events of the accident to help establish
liability on the part of the defendant. Witnesses whose purpose
is to establish damages should be able to clearly describe the
victim's condition prior to the accident so as to fully delineate
the change in quality of life that the victim has undergone.
It is essential that the witness be viewed as reliable by the
jury. Since both the plaintiff and the defendant often rely on
expert witnesses to support their cases, the plaintiff must be
sure that the experts utilized on his or her behalf are very
well-versed and highly-regarded in their respective fields.
What You Need To Know:
Insurance companies' obligations are to their stockholders and
policy holders, not to the people injured by their insured's
negligence. Insurance companies' desire to maximize their own
profits provides them with every motivation to try to deny your
claim or pay you the very minimum amount that they can get away
with. The insurance companies also have enormous advantages:
they have immense wealth, armies of experienced adjusters and
lawyers and years of experience reducing and denying claims.
At the Law Office of Stephen A. Burroughs,
our only obligation is to you, our client. We will use our experience
and every resource available to protect your interests, and we
will work hard to help you receive the full value for your case.
We will advise you every step of the way to help you avoid any
mistakes that could cost you money. There is no charge for attorney's
fees until you recover money for your personal injuries, and
we will also help you resolve your property damage claims for
no fee whatsoever. For assistance, call today at 1-877-300-3773, contact
us or submit
an free online case evaluation.
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