Personal Injury Cases: How Does A Lawyer Figure Out A Settlement Value?

A large part of our job is advising clients about settlement negotiations.  What should we ask for?  What is the value of the case?  Is this a good offer?  etc.

During those discussions, many injured persons ask how we know the answers to those questions.

It’s not a mathematical formula.  It’s not a simple calculation.  Instead, the settlement value of the case is based in large part what we think a jury would award in the case.

So first, we have to figure out what a jury would do.  (To fully understand this, you need to know how juries reach their verdicts.)  There isn’t a precise calculation that we can use to do this, but we can know a pretty good range of likely verdicts.  Sure, there are outliers.  Some verdicts may be higher than the likely range, and some may be lower.  But generally, we have a good idea of what the likely range of a case would be. 

Once we get that range, then we may need to adjust it for other factors that may increase or decrease the value of the claim.  For example, if you have liability questions — it’s a swearing match about what happened, then the case will be worth less than if all the witnesses supported your claim.  There may also be aggravating factors — Was the other driver drunk or texting at the time of the wreck? Did the company ignore a long history of problems that led to your injury? Is the other party simply unlikeable  (and how much the jury likes/dislikes you and the other party can have a huge affect on case value)?

This isn’t something you can figure out on your own.  You really need a lawyer’s experience to know the range and to know how that range might be affected by the particular factors in your case. 

But the value always goes back to the alternative — what would a jury do?

Personal Injury Claims: How Do Juries Decide Cases?

I’m resigned to the fact that most people learn about the legal system, and the legal system does a lousy job of explaining how juries come up with decisions in civil cases. 

The confusion comes in two forms.  First, in Texas, at least, juries don’t necessarily “decide” who should win or what amount should be awarded.  Instead, they answer a series of questions that are posed to them, and then the Judge takes those answers to come up with a judgment.  In fact, juries are specifically not supposed to know what their answers mean. 

Additionally, people have questions about what we get to ask juries to award them.  There are some defined areas that we get to ask for (outlined below), but we don’t just get to ask for those items   — we have to present sufficient evidence before the judge will even ask the jury about most of these areas.  I explain that a little below.

So what do those questions look like?

Generally, in a simple car wreck or personal injury case, the jury is asked three questions. (And below, the “plaintiff” is the party that was injured and filed the lawsuit. The “defendant” is the one being sued.)

Question One: Did the negligence of either of the parties listed below proximately cause the wreck (or occurrence) in question?

Answer “yes” or “no” for each.

Plaintiff: __________________

Defendant: ________________

The jury answers that question. If the jury answers “no” for the defendant, then the plaintiff loses, and the case is over. If the jury answers “yes” to both parties, then the jury is told to answer the second question. If the jury answers “no” for the plaintiff, but “yes” for the defendant, then the jury is told to skip question 2 and go to question 3.

Question Two: For each person that you find caused or contributed to the wreck, find the percentage of responsibility attributable to each:

Plaintiff ______________%

Defendant ______________%

Total 100%

This question is very important. If the jury finds that the plaintiff contributed to the wreck, then the damages (found in question 3) are reduced by that percent. For example, if the jury answers 10% for Plaintiff and 90% for Defendant, then the judge takes the total amount in answer 3 and reduces it by 10%, and that is the eventual award to the plaintiff. If the plaintiff’s percent is higher than 50%, then the entire claim is barred, and the plaintiff loses without recovering anything.

Question Three: What sum of money would compensate the Plaintiff for her injuries that resulted from the occurrence in question?

Medical care expenses incurred in the past ___________________________

Medical care expenses incurred in the future _______________________              

Pain and mental anguish in the past _______________________

Pain and mental anguish in the future _______________________

Loss of earning capacity in the past ____________________________

Loss of earning capacity in the future_______________________

Physical impairment in the past _______________________

Physical impairment in the future _______________________

Disfigurement in the past _______________________

Disfigurement in the future _______________________

These numbers are totaled to get the jury’s award.

But an injured victim doesn’t just get to ask for these damages; evidence has to be presented to justify the damages. For example, for medical care expenses in the past, the victim has to present evidence that the expenses were related to the wreck. Most people understand that.

But for medical expenses in the future, it gets a little more tricky. Clients often say something similar to, “well, I don’t know that I’ll need a surgery, but it’s a possibility.” To even get to submit the spot for medical care in the future, we must have some type of testimony from a doctor that it isn’t just possible, but that you’ll have that surgery (or other care) “more likely than not” and then what the cost of that care will likely be.

Similarly, for most future damages, a doctor must testify about how long a problem will last so a jury can have a reasonable basis to make its decision.

So those are the questions asked.

Assuming the judge upholds the findings, the amount in question three (after any reductions for plaintiff’s fault in question two) will be the amount of the verdict.

For more complicated cases, the questions can be modified, additional parties can be added, or additional questions are asked, but this basic structure is probably accurate for 95% of the car wreck or other personal injury claims filed in Texas.

I have a new uninsured motorist-underinsured motorist article

I recently wrote another article on uninsured and underinsured motorist claims. This time, the article was published in the Journal of Texas Insurance Law, the official publication of State Bar of Texas Insurance Law Section (of which, I’m a member). A copy of the article is here:   Texas Insurance Law Journal — article.

On a similar note, I received an article from a client about a lawsuit on an underinsured motorist claim I filed in Beaumont. You can read the article here. Before you become too impressed, I understand the paper runs similar articles about all the lawsuits filed in the county.

Traumatic Brain Injuries a Long-Term and Challenging Condition

Personal injury lawsuits involving traumatic brain injury typically have higher jury awards, as this kind of injury does not heal over time.
Just recently, the state of Alaska conducted an analysis of the number of traumatic brain injuries in that state. It seems the state has a significant record of being the region with the highest hospitalization rates for this kind of injury and that Natives are more likely to suffer brain injury than other Alaskans. This particular study triggered a widespread concern for ensuring that long-term treatment options were in place since traumatic brain injuries do not heal, and victims need to know how to cope with it.

Traumatic brain injuries are not just like other medical conditions, in that you are cured in a hospital and leave with a clean bill of health. That is not the case. Brain injuries are chronic and may haunt a person for the rest of their lives. It takes a lot of work over a long period of time to recover from a brain injury and be able to manage it.

Traumatic brain injuries typically result in higher damage awards in accident cases, largely because the person’s life has been dramatically altered, and in some cases catastrophically altered. Unable to care for themselves and perhaps even cope with daily living tasks, victims of traumatic brain injury have a long and frustrating challenge ahead of them. While they may successfully achieve partial recovery, the fact is that brain damage is permanent.

Head trauma does not just happen in a car accident. It may be the result of riding a snowmobile, ATV or motorcycle. It may come about as the result of a slip and fall, or it may be the result of an injury sustained playing sports. If the injury is the result of someone else’s negligence, that person needs to be held responsible for monetary damages.

Cases like this are tough, largely because they involve a great deal of medical detail. Plaintiffs are often upset and frustrated with their new reality and frightened at the prospect of not being able to care for themselves. For those who have sustained a brain injury, don’t wait to talk to a competent Austin personal injury lawyer. That one phone call will ensure you know your rights, how to proceed to court and what to expect in terms of compensation.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Traumatic Brain Injury Comes in Many Guises

Traumatic brain injury can come about as the result of a tornado. If the trauma is dealt with in the correct manner, the victim may have a chance at recovery.
Recovery from traumatic brain injury is often a long and exceedingly slow process, if it can be accomplished at all. Time is of the essence in cases like this, but in special cases, like this reported case, the damage is done and the victim is left to wait for medical help later.

The 14-year old boy who needed skull surgery to piece his skull back together was a victim of the EF-5 tornado that ripped through Joplin in May 2011. He had to wait for his surgery and in doing so lived for a while with two sections of his skull. He also needed to have four inches of his brain removed due to severe damage. Doctors were not certain how well he would do, as they estimated his mental acuity as being that of an 8-year-old child.

This child is at a point where surgeons can attempt to reattach the shattered pieces to protect his brain, which swelled after the initial injury. It’s one more step closer to the boy’s dream of being able to ride horses once more and play his favorite sport of soccer. This boy isn’t the only one that sustained severe head trauma as a result of that horrific storm. There are many other children facing similar surgeries.

Surgeries like this one are high risk. That is a virtual given before anything is attempted. But what other options might there be for kids like this one? They need medical help and they need to get on with their lives. If the medical assistance and surgeries go well, the child may have a good prognosis for the duration. If something goes wrong during surgery, such as a wrong medication, too much or too little anesthesia, improper monitoring, a slip of the surgeon’s knife or an operation conducted on the wrong patient, the patient is then the victim of medical malpractice or a wrongful death.

Don’t take the chance that your child may have been harmed or killed by a negligent doctor, nurse or hospital. If you have questions, doubts, fears and need answers, make your first point of contact an Austin personal injury lawyer. Your first meeting is free of charge and you can find out what you need to know by asking the Austin personal injury lawyer what medical malpractice is and how it relates to a wrongful death lawsuit.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Austin Ben White Car Wreck Is Another Deadly Wrong Way Crash

Another wrong way wreck for Austin.

Early this morning, Austin had its latest traffic fatality when a driver was driving the wrong way on Ben White Boulevard, resulting in a head-on collision with a Tombstone Pizza delivery truck.  A passenger in the wrong way vehicle was ejected from the vehicle and immediately killed.  The driver of the car was pinned in and suffered serious injuries.  The driver of the delivery truck was largely unharmed, though the cab of his truck did catch on fire.

This seems like it should never happen — a driver driving down the highway the wrong way.  But it’s much more common that people think.  Nationwide, people are killed or injured in wrong way wrecks on an almost weekly basis.  And Austin hasn’t escaped the problem.  I’ve been writing about wrong way wrecks in Austin for at least the last two years.  And last year, Austin had two wrong way car wreck fatalities within a couple of weeks of one another.

Most of these wrecks have several characteristics in common:

  • Most occur at night  (today’s occurred at 4:00 a.m.);
  • Most of the wrong way drivers are either impaired by alcohol or drugs or, to a lesser extent, are elderly drivers (alcohol is suspected in today’s wreck); and
  • Many occur on roadways with confusing entrance/exit designs.

These wrong way wrecks are particularly problematic for several reasons.  They often involve fatal or serious injuries.  Due to the nature of the wreck, most of these are head-on collisions, which bring a tremendous amount of force.

They are also hard to avoid.  When an innocent victim is traveling in the proper direction, they are usually at the mercy of the wrong way driver.  And statistics show that wrong way drivers are often impaired, making it hard for a person traveling the proper direction to really anticipate the wrong way driver’s next move.

Finally, these wrecks are going to become an increasing problem.  They often occur on highways that have confusing entrance and exit ramps.  As Austin grows, we have more and more large highway intersections that are potentially confusing and offer opportunities for wrong way drivers to enter roads the wrong way.

For more information on wrong way drivers, you can read some of my prior posts on the problem:

You can also read the Texas Transportation Institute’s worksheet: Wrong Way Driving on Freeways in Texas:  Problems, Issues & Countermeasures.

Central Texas Fire Losses: Avoiding Bad Builders And Contractors

I’ve represented a number of people in lawsuits against their builders.  Several years ago, one of my clients and I half-joked that we were going to write a book together about avoiding bad contractors. 

We never got around to writing the book, but I do want to share some of the tips.  Because while tragedies oftentimes bring out the best in people looking to help others, they also bring out the worst in people — those that want to take advantage of the situation.

Here are some of my tips.

1.  RESEARCH YOUR POTENTIAL BUILDER.  First, ask for recommendations from those you know and trust.  Once you get those recommendations, research the options.  Do the traditional research by asking for references & checking up on those references.  But also go that extra step and look online to see what reviews or complaints your builder might have out there.  Given the large investment you’re about to make, it may make sense to even pay a little for services such as Angie’s List.

2. MAKE SURE YOU UNDERSTAND THE CONTRACT.  Contracts are confusing, and the construction contract will likely be for more than $100,000.00.  That’s a lot of money.  Make sure you understand whether you’re entering into a flat fee contract or a cost-plus contract.  Make sure you understand the scope of the work that is included in the contract (as opposed to what might be upgrades or additional charges).  Make sure you understand the warranty that the builder may be offering.  A little work up-front can prevent huge problems later.

3. DON’T PAY THE CONTRACTOR TOO MUCH UP-FRONT.  We sometimes see cases where the profit in the job is in the earlier part of the construction so the builder, satisfied with those early profits, walks off the job.  You need to make sure that the negotiated payments provide an incentive for the contractor to stay on the job. 

4. MAKE SURE THE CONTRACTOR IS PAYING THE SUBCONTRACTORS.  Under Texas law, if the contractor doesn’t pay the subcontractors, the subcontractors can put a lien on your house.  You can minimize the risk of that happening by requiring the contractor to provide you lien releases from the subcontractors with each draw request.  Lien releases are formal documents from the subcontractors saying that they have been paid through various points of the project.

5. CONSIDER HIRING AN INSPECTOR TO COME INSPECT THE CONSTRUCTION PROCESS.  This is an extra cost, but it’s worth it to make sure the house is being built properly.  Again, it is worth paying someone to make sure that the framing is done right, that the windows and other penetrations to the home are flashed properly, etc because those types of defects can cause a lot of damage and be expensive to repair later on down the road.

These aren’t all the tips, certainly, but if you follow these instructions, I think it’s a little less likely that you’ll be taken advantage of or be the victim of shoddy workmanship.

Posted on: September 15, 2011 |

Lesson From The Bastrop (Central Texas) Fires: Make Sure You Have Enough Insurance

Yesterday’s Austin American Statesman featured the tragic story of Carmen and Javier Chaparro, recent victims of the Bastrop County fires.  The Chaparros seem like great people.  Javier is a professional musician, and Carmen is a teacher who works with special-needs kids.  But sadly, after the fire, the Chaparros discovered that they didn’t have enough insurance to cover the losses of Javier’s cherished $50,000 violin or other instruments and his recording equipment.

While that’s a hard lesson to learn, the Chaparros are in good company.  For years, we have represented people in insurance claims (including my just finishing up a large lawsuit against Safeco stemming from a fire at my client’s home), and I would estimate that at least 75% of those clients don’t have enough insurance to fully cover their losses in the event of a tragedy.

With homeowner’s insurance, you are buying two types of coverage.  The first coverage, dwelling coverage, covers the cost to repair or rebuild your home, depending on the extent of the damage.  The second coverage, contents coverage, covers the cost to replace the contents of your home — your personal belongings that are destroyed.  Most people have both of these coverages too low.

For dwelling coverage, the fact is that it’s just expensive to build in the Central Texas areas, and most people don’t have an idea of what it would cost to rebuild their home.  Insurance companies have formulas they use to estimate those costs, but often those estimates are wildly inaccurate. 

My family is a perfect example of that.  Five years ago we did a fairly extensive remodel of our home.  During that process, I talked to my insurance company about increasing the limits of our dwelling coverage.  The insurance agent came back with an estimate of what it would cost to completely rebuild our house should something happen.  But the estimated cost was less than what we had spent to do a partial renovation (and that included my wife and I doing much of the finish work — painting, installing flooring, installing trim work, etc).  I knew that there was no way we could rebuild the entire house for the amount suggested.  (And our house is small — approximately 1,500 square feet after our addition — the differences will only increase with larger houses.)  Fortunately, with the help of our builder and my dad (who is in the commercial construction industry) we were able to get an amount that would help us rebuild in the event of a disaster.

But most people don’t have that luck and luxury, and they end up with too little insurance.  Do what you can to make sure you’re not in that boat.  It’s worth paying a small amount to get an opinion from a builder or someone else to make sure that your insurance is enough to rebuild your home.

The same goes for contents.  Most people are underinsured on their contents coverage because they don’t really take the time to look at everything they own.  People own a lot of “stuff” these days, and replacing all that stuff is expensive.  When you’re renewing your insurance, take the time to really look at what you own, and be honest in what it might cost to replace it.  (Also, just in case you’re in something like this, document what you have.  Take five minutes to run through the house with a video camera, and then keep the tape or disc somewhere else, like an office or another family-member’s home, so you can access it if something happens to your home. That five minutes can save you hours and potentially tens of thousands of dollars at a later time.)

Also, let me add that it’s important to know what coverage you are buying.  Several years ago, the Texas Department of Insurance required homeowner’s insurance companies to write standard policies  (generally, 95% of the policies were called HO-B policies).  Because the policies were standard, a homeowner could shop around from insurance company to insurance company and know that they were comparing apples to apples.  But, in a huge disservice to homeowners, the insurance department decided to allow companies to write their own policies.  Now, when the average homeowner is calling around to different agents to get quotes, it’s almost impossible to know whether you’re getting quotes on the same types of policies.  Most often, you’re not.  Now, every policy is different.  That’s why it’ so important to sit down with your insurance agent and tell them about your circumstances, and get them to explain the policy to you.  I know it’s boring  (and I do it for a living), but it’s the only way to really make sure you’re protected.

Being underinsured isn’t limited to homeowner’s insurance.  I’ve repeatedly written that people need to protect themselves in the auto insurance context by buying uninsured/underinsured motorist coverage and personal injury protection coverage when they purchase auto insurance. (You can also read another post on the need for this coverage:  San Marcos DWI wreck shows need for uninsured/underinsured motorist coverage.) 

While much of our time is spent fighting insurance companies, we do recognize that it has a place.  Please learn from the Chaparros’ (and my clients’)  experience to make sure that you are properly covered by your insurance should you need it.

Posted on: September 14, 2011 | Tagged

Car Wrecks: Good Samaritan & Motorcyclist Killed On The Side Of The Road; Beware The Dangers Of The Side Of The Road

Tuesday morning, two drivers lost their lives in a tragic MoPac accident.  A motorcyclist rear-ended an SUV on MoPac near 2222.  The motorcycle stopped and the motorcyclist fell in the outside lane of traffic.  A good Samaritan stopped on the shoulder and went to help the motorcyclist.  Unfortunately, another vehicle came up and hit them, killing both.

This tragedy is a reminder about the dangers of parking on the side of the road or, in this case, being in the roadway.  The side of the roadway continues to be one of the most dangerous places on highways.  While people think they’re parked out of harm’s way, they are targets for oncoming traffic.  I’ve previously written about the dangers of parking on the side of the road, including providing some tips about what to do.

Helping someone in traffic is even more dangerous.  While helping, it’s critical that you protect yourself so you are seen by oncoming traffic.  For instance, in this wreck, instead of pulling over, the good Samaritan might have been better served by pulling up behind the motorcyclist and putting his car’s flashers on. 

I know these are emergency situations, and it’s hard to predict those risks.  But last night, at my son’s cub scout meeting, the topic was planning for emergencies.  If you think a little bit before hand about how you might respond to certain situations, including how you might help others, you’ll make safer & better decisions than trying to decide what to do in the heat of the moment.

So think about how you might react in such a situation if you need to provide help.  Don’t let this good Samaritan and motorcyclist’s deaths be in vain.

Posted on: September 7, 2011 | Tagged

Central Texas Fires: Making Insurance Claims

I’ve handled a number of homeowner’s insurance claims.   With the horriffic fires of the last two days, I wanted to at least make a post and provide a little information for those victims who are faced with making fire insurance claims.  Fortunately, the potential claims you’re facing are not quite as complicated as most homeowners’ insurance claims.

Most homeowners’ insurance claims will have two parts — real property claim and a contents/personal property claim.

The real property claim is for the damage to your actual structure —- the dwelling or home.  Generally, when you’re making a claim there are fights with the insurance company about the extent of repairs necessary from the event and the cost of those repairs.  Fortunately for you, most fire victims are able to avoid this fight.  Section 862.053 of the Texas Insurance Code provides that when there is a total loss by fire, then the full amount of the policy limits are due.  In most cases where there is extensive damage, there isn’t an argument about whether the home is a total loss, and thus, the insurance company is required to pay the full amount; there isn’t any quibbling about scope of repair, costs to make those repairs, etc.  The insurance company should just pay the full amount to you.

The personal property/contents claim is the claim for your furnishings and possessions.  That includes furniture, clothing, household items, etc.  Sadly, most people are underinsured when it comes to contents — they just don’t really have a good estimate about the value of the items in their houses.  As a result, when fires completely destroy a home, most homeowners will be owed the full amount of coverage provided by their policy.  You may have to jump through some hoops to get it — making an inventory of what you lost, estimating costs, etc.  But in most situations, you will not have any difficulty identifying enough losses to justify full payment.

To all the victims, good luck in going forward.  You are certainly in our thoughts and prayers as you try to rebuild your lives.

Posted on: September 6, 2011 |

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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