Nature of injury
Degree of defendant’s liability
Comparative negligence
Plaintiff’s and Defendant’s credibility
Plaintiff’s age
Witness testimony
Nature of injury
The most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. A serious injury will net more proceeds than a minor one. If you are suffering from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage.
Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle, and while they can be painful, they are usually not permanent, life altering conditions. The ability to detect this condition through medical examination is limited, whereas bone and ligament damage is easily seen on a standard x-ray. Serious injuries that can be detected with a medical examination typically receive much higher damage awards. Medical documentation can provide concrete evidence to prove your damages, and therefore, you will usually receive more compensation for your injuries.
In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions that require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention. The bottom line is that the more severe, painful, or life altering an injury, the more you could except from a settlement.
Degree of defendant’s liability
If the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is 100% at fault. There will be no contention as to who was at fault in that case; the only issue at trial will normally be how much your damages are worth.
However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. If this is the case, you would want to hire an attorney who would vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Being able to prove the fault of the defendant will enable you to receive the maximum amount obtainable from a lawsuit.
Comparative negligence
If a plaintiff is found partially at fault for an accident, he or she has not lost the case altogether. In Florida, comparative negligence is used to calculate the degree of the plaintiff’s negligence and reduce the plaintiff’s claim reward accordingly. 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.
Here is an example: Suppose a jury awards you $80,000 in damages after you tripped and fell outside a supermarket. However, it finds you 50 percent at fault for causing your own injuries because you were reading a newspaper at the time. After applying comparative negligence, you would be entitled to $40,000 in damages $80,000 minus 50 percent.
Plaintiff’s and Defendant’s credibility
The credibility and perception of the defendant will affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren’t likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the “holes” in defendant’s version of the accident will damage the defendant’s credibility, resulting in higher damage awards in most cases.
Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you describe your injuries in detail, and in a convincing manner? Are you well spoken and well dressed? Can you accurately describe the events of the accident? Would you make a good witness on your own behalf?
The term used to describe these intangible factors is “jury appeal.” Remember that the jury members are listening to the testimony of both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.
Plaintiff’s age
Age plays a role in determining the value of a plaintiff’s claim, particularly where permanency of injury is alleged. A younger woman who loses her leg in an accident will receive a higher amount of damages than an older woman with the same injury. The logic behind this is that the younger woman will have more future pain, suffering, loss of enjoyment of life, loss of income and mental anguish ahead of her than an older woman.
Witness testimony
The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. Having credible witnesses who can clearly describe your condition before the accident to the jury is vital, and will assist them in understanding the change in your condition post-accident. Also, securing an expert witness to testify on your behalf can be a key point in winning your suit. In cases where there are “dueling experts,” the background and professional experience of your expert is critical to establishing his or her influence over the jury.
