In the 35 years I have been practicing personal injury law in Vermont, the questions I hear most frequently are:
- Is my injury case worth pursuing?
- What will it cost?
- What are the pros and cons of suing?
- What is my injury case worth?
- Does it ever make sense to negotiate on my own and avoid attorney fees?
I’ll address each of these questions in a post, with the intent of empowering an injured person to better understand and successfully navigate their legal options.
Is my case worth pursuing?
To win a personal injury case, the injured person must prove:
- that someone was “negligent” and
- that the negligence caused harm.
Once you’ve proved your case, you still have to collect your award from the defendant, something that is not always an easy task.
Proving Negligence
Negligence, in its simplest terms, is “failing to use reasonable care to prevent foreseeable harm.” “Reasonable care” means acting with the care and caution a reasonable person would have used in the same circumstances. Reasonable care is defined by such things as the motor vehicle laws or, for professionals, the accepted standard of care within their profession.
Sometimes, both the plaintiff and the defendant have been negligent. In most states, including Vermont, if the plaintiff was more negligent than the defendant, the plaintiff loses. But, where the plaintiff was negligent, but less so than the defendant, the plaintiff may still recover a reduced amount. For example, if a plaintiff was 20% at fault and a defendant 80% at fault, and the plaintiff had suffered $100,000 in damages, the plaintiff would recover $80,000.
Proving Harm
The second part of the negligence equation, the harm caused by the negligence, is often more challenging to prove. The defense will often argue that the injuries claimed by the plaintiff “pre-existed” the accident. For example, over time many of us will start to develop neck and back pains even if we are never in an accident. The challenge then in some cases is to show how much additional harm the accident caused.
During the last 25 years, I have handled a large number of cases involving traumatic brain injury. The majority of brain injuries cannot be seen on CT or MRI scans. Many of the symptoms of brain injury—headaches, fatigue, memory and concentration issues, vision issues, trouble sleeping—are also found with other medical and psychological conditions. In fact, healthy individuals may even experience some of these symptoms as a part of their everyday life. Proving that an accident “caused” a brain injury can therefore be a uniquely complicated task. But, as I discuss in my blog, Traumatic Brain Injury Blog, research over the years has given us new ways to “prove” brain injury.
Even if you are confident you can prove your case, you must decide whether the money you are likely to collect and keep is enough to outweigh the disadvantages of suing. Cases can be expensive to prepare, requiring experts like doctors and engineers, who charge high hourly rates. These “out-of-pocket” expenses typically come off the top of any recovery.
The Insurance Factor
Insurance plays a big role in these decisions. Unless the defendant is wealthy or is a business with significant assets, recovery will likely depend on how much insurance the defendant has, or how much insurance you have. Contrary to what people often assume, the defendant’s insurance company usually has no obligation to pay your medical expenses or lost earnings on an ongoing basis, even when negligence and cause of harm are clear. Your health insurance, Medicare, or Medicaid will pay for your medical expenses, but they will expect to be reimbursed when you settle or win the case. Medicare may expect that you set aside funds for future care resulting from the accident. In some cases, the math simply doesn’t work, especially where insurance is limited and expenses will likely leave you with little money in the end.
Sometimes the existence of insurance coverage will depend on how the case is presented. Most experienced attorneys have learned that denials of insurance coverage should almost always be carefully examined. Many states, including Vermont, require automobile insurers to provide “underinsured” (UIM) or “uninsured” (UM) motorist coverage. If your UM or UIM policy limits are higher than the defendant’s, your insurance company may be obligated to respond to your claim and “step into the shoes of the defendant.” In these situations, the potential recovery may be greater.
So IS my Case Worth Pursuing?
The short answer to whether you have a case worth pursuing: ask an experienced and respected personal injury attorney. The best lawyers will advise you about the challenges you have in proving your case or collecting money, and the best lawyers will not take a case where the outcome, for whatever reason, is not good. And remember—some people still will choose not to sue even where their case is objectively worth pursuing because, for them, the cons outweigh the pros. I will go into this idea further when I discuss the pros and cons of filing a lawsuit.