What is my Personal Injury Case Worth?

A personal injury lawyer is often asked early on what the value of a case is. I sometimes respond by asking the client what a car in our parking lot is worth.  A client naturally asks how old the car is, what shape the body is in, what the make and model are, what the mileage is, whether there are any mechanical problems, etc.  People are familiar with the buying and selling of cars and they instinctively know that you have to have the specs first.

The value of a personal injury claim is also determined by the specific facts of the case. Those facts have to be known before a valid value can be assigned to the claim.  Not all cases involving a leg fracture, for example, have the same value.

The value of a case will be influenced by, among other things:

  1. The severity of the injury;
  2. The total amount of the medical expense;
  3. The extent to which the injury impacts normal activities;
  4. The amount of any past and future wages lost as a result of the injury;
  5. The magnitude and duration of the pain the injury causes;
  6. The emotional consequences of the physical injury;
  7. The future impact of the injury.

An experienced lawyer will tell you at the outset that an accurate valuing of your claim can’t be made until there is a complete understanding of the full reality of the injury. That full reality is what a jury will be asked to value when it decides what in a particular case constitutes “full, fair and adequate compensation.”

By:  Peter G. Webb

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Loose Lips (and fingers) Sink Ships

Dear Client:

Please be forewarned that your opponent in a lawsuit will very interested in your social media postings.  You have to assume that the other side will be combing through whatever there is out there in your name to pick up what they can to undermine your case.  This includes postings on:  Facebook, MySpace, Instagram, LinkedIn, Twitter, Google+, Tumblr, Flickr, Pinterest, VK, YouTube, SnapChat, Foursquare, Yelp, WeChat, WhatsApp.

We all sometimes get carried away at our keyboards.  However, you cannot afford to if someone out there is filtering your postings to gather information to use against you in a pending legal dispute. Assume that if you post, they will see it.

FACTA COULD DARN NEAR KILL YA (A warning to businesses, retailers and restaurants)

The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) is intended to prevent a criminal from using a customer’s credit card information found on a discarded receipt.

Consequently, FACTA sensibly requires businesses to obliterate all but the last four digits of a customer’s credit card account number and to remove the card’s expiration date from receipts given to their customers.

So, what is the problem for businesses that accept credit cards?

Businesses rely on point of sale hardware (the machine the card is swiped through) and software to process credit card payments (a “POS” system). POS vendors, after 2004, probably sold systems that were FACTA compliant. However, a number of businesses own pre-2004 POS systems that haven’t been updated to make them compliant. It probably doesn’t even occur to these business operators to update a POS system unless it stops working properly. Therein rests a potentially very expensive surprise.

You must first understand that Congress intended the general public to enforce FACTA’s provisions. It did so by requiring a court to award minimum damages of up to $1,000, plus attorneys’ fees, if a customer can prove that the business knowingly failed to follow the law. In certain cases a customer can also recover punitive damages.

Lawyers who bring lawsuits under FACTA frequently attempt to do so as a class action, which, if successful, can result in your business suffering catastrophic damages.

The best way your business can protect itself against these claims is to make sure that the software that processes payments by credit cards complies with FACTA. It also makes sense to make an agreement with your POS vendor to advise you when there are new regulations. In addition, you should speak with your insurance agent, broker or consultant about acquiring insurance for losses that relate to Internet transactions.

By David K. Pinsonneault

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DIY’ers

Do it yourselfers. Ya gotta love’em. Self reliance is, after all, a fundamental American trait. Nevertheless, I have to shake my head when a proud but naïve soul brings in a mismanaged vestige of a once promising case, and wonders if we might offer a little advice. Usually, it’s like trying to revive a chronically under-watered and over-exposed house plant. The poor thing is just too far gone. A good outcome takes more than trusting that truth will prevail.

If you get experienced counsel in early on, your case will be developed and managed step by step by someone who knows how it is done, what’s important, and what not to do. You would probably hire your lawyer for a personal injury claim on a contingent fee basis, so the attorney’s fees will be percentage of the recovery ultimately achieved, whatever and whenever that might prove to be. Since it will cost you the same either way, you’d be well advised to get the lawyer in sooner rather than later.

Most of us would not try to repair our car’s transmission ourselves. It’s also not a good idea to try to handle your personal injury claim yourself.

By: Peter G. Webb

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Wrongful Death Cases

New Hampshire law, RSA 556:12 [http://www.gencourt.state.nh.us/rsa/html/LVI/556/556-12.htm] entitles the estate of someone whose death was wrongfully caused by another to receive monetary compensation from the responsible party. If there is no family, the estate’s recovery is limited to a maximum of $50,000.00. If the deceased left family, there is no maximum recovery for the estate. The compensation to which an estate is entitled is the sum of the value of:

  1. The mental and physical pain suffered by the deceased because of the injury.
  2. The financial expenses caused to the estate by the injury (medical bills and funeral expenses).
  3. The net lifetime earnings lost by the estate (earning capacity minus necessary living expenses).
  4. The years of life of which the deceased was probably deprived.

This law also provides that the surviving spouse and any minor children of the deceased their own right to recover for the loss of their loved one by the wrongful act of another. However, the statute limits a spouse’s recovery to a maximum of $150,000.00 and each minor child’s recovery to $50,000.00.

The estate and the surviving spouse have three years within which to settle or bring suit against the responsible party. Thereafter, the right to such a claim is lost. A minor child’s right to make such a claim would continue until the child’s 20th birthday.

By:  Peter G. Webb

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Cheapest Health Insurance Around?

When you buy liability insurance for your car in New Hampshire, your coverage will include “medical payments” insurance.  That coverage acts as a mini-health insurance policy.  It pays uncovered medical bills, regardless of who was at fault, for medical care required as a result of a crash in the insured car, a crash in someone else’s car, and for a pedestrian struck by a car.  It covers the insured driver, all passengers in the insured car, and any relative who lives in the insured’s household.

The cost of $1,000.00 of medical payments coverage in a policy I recently reviewed was $12.00.  If you can afford it, you should buy higher coverage.  Some of our clients have medical payments coverage of $5,000.00 or $25,000.00. Check with your insurance agent for price and availability, and consider the nature of any health insurance you already have. Then decide how much medical payments coverage you should buy.  It may prove to be the best investment you ever made.

By the way, if your health insurance pays a medical bill from such an incident, you will have to reimburse them out of any recovery you receive. You do not reimburse your car insurance for medical bills they pay under your medical payments coverage.

By:  Peter G. Webb

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Vehicle Damage

Someone crashed into your car. You need to have a working car. What are you going to do?

The first call should be to your car insurance.  You are their customer.  You should find the most cooperative reception there. The other guy may be at fault, but that insurance company may take a while to decide that. The best way to go is through your own collision coverage. If the other guy’s insurance accepts responsibility, they will repay your insurance company for the repair cost. If the repair cost is more than the value of the car, you will instead get paid the value of the car.  Yes, you have a deductible, which means that your insurance will pay you what you are due minus your deductible, but the other insurance company will pay you the deductible if and when they decide their driver was at fault. The important thing is to get you a working car as soon as possible.

Rental car?  Hopefully you had rental insurance. Again, working with your insurance company should be easier. Otherwise, if the other insurance company agrees that their driver was at fault, they will pay for the cost of a rental while your car is repaired, or for a few days after they pay you the total loss amount. However, how long a rental is provided is often a source of dispute.  The insurance companies are very strict about not paying for more days of rental than they consider necessary. By that they mean, not according to your convenience, but as soon as the promptly started repair is completed, or a day or three after they give you a check for the total loss.

In any event, as an aside, please be aware that a disabled vehicle parked at a towing facility is commonly sitting there at a rate of $30.00 a day or more. You can assume that the insurance company, whichever insurance company, will resist paying that bill except for a short time before repairs. To make matters worse, the towing company can hold your car until its bill is paid.

By:  Peter G. Webb  

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Subrogation

Subrogation is an unfamiliar word, but it is a concept which it is important to be aware of in a personal injury claim.  Simply put, it means that you have to reimburse your health insurance and Medicare for medical bills they pay, if you receive any money from a party legally responsible for your injury.  You might wonder why in the world you would have to repay for the benefits you paid for in the first place.  While it seems illogical, you have to do so because your health insurance policy has a provision that obligates you to do so. In the case of Medicare, it’s the law.

Although subrogation reduces compensation to the injured party, the rationale is presumably that it reduces the cost of insurance coverage and Medicare.

It has been said that the law is a reflection of the prevailing social values.  I don’t think I share this one.

By:  Peter G. Webb

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Lawyers as Rugby Players

Rugby is a sport for lawyers.  During the game, you hit and scratch and kick to win.  However, when the game is done, the two teams retire to enjoy themselves together.  That is a model for good lawyering.

Sure there are lawyers whose mother would not want to have a beer with them.  But, by and large, the most successful and cost-effective problem solving and advocacy occurs when there is mutual respect and dignity between the opposing lawyers.  Some clients are uncomfortable with that, and expect their lawyers to show unyielding antagonism for opposing counsel.  One thing that is certain to accomplish is a higher bill for legal services.  In some cases, that is necessary, but your case will likely suffer if every step of the process is complicated by excessive ill will and distrust.

After over 30 years of doing this, I am convinced that having a working relationship with my enemy, when it can be had, is in my client’s best interest.  Your lawyer should hate to lose, and must do everything within the governing ethical rules to serve your best interests.  However, while wide-eyed, no-holds-barred advocacy may sometimes be comforting to a client, the clearest professional judgment, the least unnecessary expense and the best outcome are more likely when there is a minimum of personal enmity between lawyers.

By:  Peter G. Webb

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Confessions of a Personal Injury Lawyer: It’s the Proof Not the Truth

It is not the jury’s job to decide what really happened.  The reality is that they decide what the evidence submitted to them proves.  For that reason, you can’t afford to take comfort in the fact that the truth is on your side.  A winning personal injury case has to be built piece by piece out of the evidence you are able to present to the jury, and there is a maze of rules of evidence, statutes, court rules, case law and logistical challenges through which your evidence must first pass before you can get it to the jury. A winning case is about having good facts, good clients, and then systematically and methodically proving it.

By:  Peter G. Webb

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