I sometimes ask a client "What is a house worth?" or "What is a diamond worth?" and "Who is in the best position to answer those questions?"
The answers are obvious and simple - - "It depends;" "it depends;" and "It takes an expert" - - such as a real estate broker or gemologist to best evaluate such worth. The value of a house, for example, will depend upon, among other things, what other homes in the same neighborhood are selling for, its age, condition, unique qualities, potential problems and the willingness of the respective parties to consummate a deal.
In assessing the settlement value of a personal injury case, the same principles apply. The value of the case is a function of many circumstances: the strength of the liability; nature of the injuries; venue; trial judge; appellate ceilings and most of all the peculiar vulnerabilities and advantages that are unique to the individual case. The more experience an attorney has in trying, negotiating and settling major cases, the better he/she will be in determining the best settlement posture.
Some of the elements of the damages can be objectively determined. Projections of lost earnings are based upon employment history, inflation rates, fringe benefits and other statistical work-force data. Future medical costs are projected based upon the injured persons medical history, the nature of the injuries and evaluation by a reputable physiatrist.
Other elements of damages are more difficult to assess such as pain and suffering, loss of enjoyment of life, losses suffered by children, and losses to surviving spouses. Any of these elements, can be worth millions of dollars. Knowledge of the applicable laws and appellate limits are critical to determine these values.
And then there are the "jury factor" issues that affect the assessment of every case. Even if only collateral, the plaintiff's prior history of drug or alcohol abuse, family discord, social circumstances, work or disability history, and criminal activities may have a strong bearing on whether a jury would be predisposed to render a substantial financial award to such a person and will affect an insurance company's settlement position.
I have seen difficult cases won because the plaintiff and his family made very good impressions and cases lost because the defendant physician appeared unsympathetic and defensive. Factors such as these have to be considered in determining the settlement values of the case and can only be reliably assessed by an attorney who has been in the battlefield and seen how these issues play out before a jury.
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Sally and Denise
Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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