Have you been injured, and you are wondering how much to demand from the party who was at fault? Have you been handling the situation by yourself and been offered a settlement amount, but you are unsure if you should settle because you are unsure how much your case is worth? The questions you are asking yourself are questions that need to be asked. The answers to such questions are not always easy to answer, and your decision could affect you for the rest of your life. The last thing you want to do in a situation which demands these questions be answered is leave any money on the table. According to a survey conducted by nolo.com, individuals who hired an attorney got paid out three times more in injury cases than those individuals who represented themselves. The amounts were calculated after all attorney fees were deducted. The purpose of this article is to guide you through some of the considerations that a qualified legal professional at Hemming & Associates, P.C. will examine while assisting you in achieving your litigation goals.
THE DIFFERENT TYPES OF DAMAGES
“Damages” is a commonly used legal term to describe the amount of compensation that is owed to you in any particular claim which you have against another party. In order to determine the amount of damages which are owed, it is important to understand the different types of damages that may be available. By and large, damages are divided into three different categories: 1) Special Damages; 2) General Damages; and 3) Punitive Damages. The difference between each type will be addressed herein.
A. Special Damages
Special damages or “economic damages” are designed to compensate you for actual losses which can be measured and identified. Put another way, special damages are available to pay for your “out of pocket” expenses as a result of an injury. Examples of special damages include lost wages (past and future), lost business opportunities, compensation for medical expenses (past and future), and costs associated with repairing or replacing damaged property (e.g. a vehicle).
Special damages are calculated by adding together the total of your “out of pocket” expenses which can be identified and measured. Evidence of special damages needs to be provided to the opposition, the court, or both, in order to identify and measure the loss which has occurred. Examples of evidence which is regularly considered by the courts includes but is not limited to medical bills, pay stubs, and automobile repair invoices, etc..
Some jurisdictions have laws that reduce or remove the ability for a party to recover special damages. However, in California a party who is found to be at fault, no matter how small the percentage of fault, is liable to the victim for all of their special damages.
B. General Damages
Unlike special damages, general damages are damages which are not able to be measured or identified. They are designed to compensate a victim for the non-economic losses which have occurred. Examples of general damages are pain and suffering damages, and damages resulting from emotional distress. These types of damages are more difficult to estimate in a case because they lack the ability to be identified from direct evidence. As a result, they can be difficult to prove in a court of law. Accordingly, such a determination can also be difficult for one to calculate. Without the proper advice, you could be missing out on money that would otherwise be awarded to you. Some of the factors considered by the courts for such damages include but are not limited to: 1) the nature and extent of the injuries which have occurred; 2) the medical procedures and treatments which were required to treat your injuries; 3) the ability or inability for you to continue your employment; and 4) the extent to which your quality of life has been infringed upon.
It is also important to note that California has adopted the legal theory of comparative negligence which allows for a defendant to reduce the amount of general damages that a plaintiff can recover by the percentage that the plaintiff was at fault. For example, let’s pretend that you were involved in a slip and fall accident at a grocery store. Let’s also pretend that during the trial, a jury made a determination that you were 25% at fault, and the grocery store was 75% at fault. The law of comparative negligence would prevent the defendant from paying you 100% of the general damages which you have sustained. In such an instance, the grocery store may only be required to compensate you for 75% of the general damages which have resulted from the incident.
C. Punitive Damages
Punitive damages are designed to punish the defendant’s behavior. Such damages are different than general and special damages, because they are not compensating you for a loss, but rather exist to prevent individuals or companies from engaging in the behavior which has caused you harm. In awarding punitive damages, the courts will focus on the defendant’s behavior. That is, the court will determine whether the defendant acted intentionally, recklessly, or negligently. In California, an injured party can recover if the defendant acted with “malice, oppression, or fraud.” CA Civ. Code 3294. Typically, punitive damages are awarded when an individual or company intended to commit the action, or engaged in serious reckless behavior which resulted in a harm to you.
Pursuing a claim against another party who injured you can be extremely complicated and complex. Determining the types of damages that may be available to you is certainly important for getting the award that you deserve. After you have made such a determination, the next step is to make a demand of the opposition. The initial demand which is made can be extremely important to your case. That is, the opposition will receive your demand and decide the degree and priority in which they will consider your claim. As such, it is prudent to make a demand for an amount that is well planned and articulated. For example, if you have a minor bruise and are demanding $1,000,000.00 without providing any facts or arguments which support your position, the opposition may be offended, or otherwise refuse to take your case as seriously as it deserves. On the other hand, if your demand is submitted with the support of strong legal arguments, the opposition may well give you what you are looking for more quickly.
In many cases, filing a lawsuit is necessary in order to get the award which is owed to you. However, if you can avoid the need to file a lawsuit it could be to your benefit. First, avoiding a lawsuit could make a difference in the time which it takes for you to receive your award. Litigation can be very lengthy and could realistically take years before you get paid the full amount which is owed to you. Second, avoiding a lawsuit could also mean that you receive more money in your pocket. Litigation can be very expensive. The costs of litigation could reduce the amount of money that you end up with. However, it is also important to understand that the expense of litigation can work in your favor, since the opposition will be forced to spend time and resources on defending your action. This could encourage them to enter into a settlement agreement with you.
After you have determined an appropriate demand amount, and you have submitted your demand to the opposition, the case could go one of two ways. The opposition could make you an offer for settlement, or you could be forced to begin your preparation for trial. When an injury case goes to trial, the parties involved argue their case in front of a judge or a jury. The judge or the jury will make a determination if the defendant is liable for all, part, or none of the amounts that you are requesting. At any point prior to, or during the litigation process, you may be offered a settlement amount. If you are presented with a settlement, you will have a difficult decision to make. You will need to decide whether to accept the amount, or to proceed further with the litigation. There are several factors which you will need to contemplate if this situation should arise. Some of the factors include:
- The amount of the offer.
- If the offer is for an amount which you are able to live with, then this factor may weigh in favor of settlement.
- The strength of your case.
- This determination is based on applying the facts of your case to the law of the court. The ability to prove your case with evidentiary support is also an important consideration in determining your position.
- The ability of the other side to pay the amount sought.
- If you are considering proceeding further in the litigation in pursuit of an
amount which the other side is not able to pay, then you may consider accepting an amount that you know you can receive. For example, if the defendant has an insurance policy which insures the defendant’s actions, and you are being offered an amount for the full amount of coverage which they have, you may decide it is worth it to accept the coverage limits in place with the insurance company. If the defendant is destitute and has no way of earning money in the future, then if you proceed to trial and win, your judgment may only be worth the amount which you are able to receive (i.e. the amount of the insurance policy limits).
- If you are considering proceeding further in the litigation in pursuit of an
- Your desire to be paid immediately.
- As they say, time is money. You may find it prudent to be paid a lower amount today compared to a higher amount at some point in the future.
- The amount of the offer.
In summary, injuries can be devastating to you and your loved ones. They can result in medical bills, lost wages, physical pain and suffering, and can also take a serious emotional toll on everyone involved. If you were injured by someone, please do not hesitate to contact our office as soon as possible. Our attorneys are highly skilled, and are available to assist you in achieving the best results possible. Call us today!
Authored by Charles G. Hemming III
CA Bar #330660, TX Bar #24122081, AK Bar #2006058
Mr. Hemming’s practice is limited to the jurisdictions of California, Texas, and Alaska.
LEGAL DISCLAIMER: The information contained in this blog is presented for informational and marketing purposes only and is not to be understood as legal advice. You should consult an attorney for advice respecting your individual needs. Hemming & Associates, P.C. looks forward to speaking with you about your particular needs. Please note, however, that the mere act of contacting our firm does not create an attorney-client relationship. As a result, you should never send any confidential information to our office until a Representation Agreement has been signed by both you and Hemming & Associates, P.C.. Hemming & Associates, P.C. is a Michigan corporation with a satellite office located at 2522 Chambers Rd., Suite 100 Tustin, CA 92780