Factors Affecting Damages
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.
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.
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.
If you or a loved one is in need of legal assistance, call The Law Office of Novak Law Firm at (323) 424-4313 or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call right away to ensure that you do not waive your right to possible compensation.