One of the most frequently asked questions I receive from clients is: what’s my case worth? The short answer is it depends on a lot of factors that are not always clear at the outset of the case. Let’s start with first principles in injury law: personal injury law damages are meant to put the injured victim in the position they would have been in but for the accident. Several factors are considered by a judge/jury/insurance company in their attempts to restore the victim to the pre-accident status quo. Accordingly, I avoid offering clients case assessments until the relevant factors that are required to determine case value begin materializing. Any numbers thrown around before then mean very little and are highly speculative. What are the relevant factors?
The relevant factors are the permanency of the injuries, the degree of functional impairment caused by the injuries, income loss, and whether the client has done their homework (I’ll name these the “Assessment Factors”). When do the Assessment Factors become clearer? From experience, the Assessment Factors usually start materializing around the 2–3-year mark post-accident.
One of the main factors to consider when assessing a case is the severity of the injuries, how a client’s injuries have progressed over time and how the injuries have impacted their life (i.e., income, recreational pursuits and their ability to perform chores around the house). Have the injuries resolved, or have they worsened? Have they plateaued? Are the injuries permanent? Determining whether an injury is ‘permanent’ largely depends on whether symptoms have resolved within 2 years of an accident.
And by extension, what degree of functional impairment has the client suffered on account of their injuries? One of the cornerstones of personal injury damages is that courts look at the difference in pre-accident vs. post-accident levels of functioning and related functional impairment. So, it’s not necessarily the type of injury that matters most (though that is of course an important factor). It’s the underlying functional impairment that matters the most when compared to the client’s pre-accident abilities.
Another major factor to consider when assessing a case is the client’s wage loss. Has the client missed work due to their injuries? Have they had to switch career fields, and did they suffer a loss of income as a result? Have they suffered a loss of competitive advantage in the workplace because of their injuries (i.e., have they refused promotions on account of their injuries)?
Another important factor to consider when assessing a case is whether the client has done their part in maximizing case value (in order of importance) by:
1. Documenting their injuries by attending their family doctor’s office (or a walk-in clinic) regularly and reporting their accident-related injuries and functional impairments.
2. Attending treatment.
3. Being responsive with their injury lawyer and answering their lawyer’s questions in a timely manner.
As a rule, the thicker the client’s treatment file is, the stronger the case. Why? Because the presumption is that treatment corroborates injury and functional impairment. If a client is not going for treatment, are they really injured (a question that a jury or an insurance company might ask)? Seeking treatment is especially important for clients with subjective injuries that are not detectable by imaging technology (soft-tissue injuries and concussions). Proving the extent of their functional impairments requires taking treatment seriously and documenting their reports to medical professionals about how the injuries are impacting them.