What is a broken arm worth? How about a bulging vetebral disc that causes nerve pain down the arm for six months until surgery fixes it? What if the surgery doesn’t work?
Unfortunately, there is no science to this. In fact, here’s the crazy way that our society figures out what a broken arm is worth: we drag twelve people away from their work and their families, make them sit in uncomfortable chairs in a courtroom, force them to listen to a bunch of witnesses tell their stories, then lock the twelve people in a room and don’t let them come out until they’ve decided how much that broken arm it worth. Letting a jury decide might seem strange, but it is a system designed to be fair to all parties involved. And I can’t think of a better way. Can you?
Because each trial will have a different jury, it is impossible to say with absolute certainty how much a personal injury claim will be “worth”.
Of course, over 95% of cases never go to a jury. We, as lawyers, decide how much those are worth by trying to figure out what a jury would say. We look at other “similar” cases in the past, see what juries awarded in those, and make our best estimate based on every detail we know about the situation, the medical records, any laws that apply, the personalities and histories of the people involved, the evidence regarding whose fault the accident was, the policy limits, and so forth. If you decide to pursue your case yourself, you will need to do the same.
But because, during a trial, the value is decided by twelve human beings, with all the flaws and prejudices that human beings have, there is a whole lot more to be taken into account than just the injury. How much the jury likes you will matter a whole lot. How much they like your witnesses will matter too. And how much they like the person who hit you. The judge has a tremendous amount of discretion, the judge’s rulings can affect a trial. How good your doctors are at teaching a jury matters a lot. What the police report says matters.
In fact, so very many things matter, that it’s really not possible to figure out what a case is worth until an extensive investigation has been done. But of course, there are guidelines. Here’s one: your case is probably worth less than you think, but more than the insurance adjuster is willing to pay.
Even though a book cannot tell you what your specific case is worth, we can educate you about the different kinds of “damages”. Damages is a vague term that helps us encompass all possible types of compensatory money an injury victim might receive from a claim.
In Oregon, there are two basic kinds of damages you can recover for a personal injury case:
1. Economic damages
2. Noneconomic damages
These used to be called “general damages” and “special damages”, and you will sometimes still hear lawyers use those terms. The proper terms are “economic” and “noneconomic” damages.
Economic damages refers to the compensation you can get for any money you have lost due to the collision. Examples include:
- Money to repair your car, or the full value of the car if it was totaled
- Money to pay for your medical bills
- Lost income if you were not able to work because of your injuries
- Money to pay for household services like cleaning and childcare if you were not able to do these things because of your injuries
- Money to compensate for future economic losses
Noneconomic damages are often called “pain and suffering”. Noneconomic damages cover such things as:
- Mental suffering
- Emotional distress
- Interference with normal activities
- Damage to a person’s reputation
- Aggravation to a previous injury
There are also punitive damages, which are meant to purely punish the wrongdoer. However, the State of Oregon takes 70% of any punitive damages. Then your lawyer will typically take 20%, leaving you with only 10%. This is then taxable to you might end up with only about 5% of punitive damages. In the right case, it can make sense to try to get punitive damages, but most injured people are better off seeking only economic and noneconomic damages, which are usually not taxable in personal injury cases, under Internal Revenue Code 104(a)(2).