Car accident lawyers in San Jose, like personal injury attorneys everywhere, make recommendations to settle a case or take it to trial based on their estimate of the verdict a jury would return if the case were to go to trial. Using that figure as a starting point, an experienced lawyer can calculate a “break-even point” that represents the settlement value of the case.
It makes sense to accept the best offer an insurance company will make if that offer equals or exceeds the break-even point. If the insurance company’s best offer does not come reasonably close to the break-even point, an auto accident lawyer will usually recommend taking the case to trial.
Calculating the Break-Even Point
The break-even point is the dollar amount the injury victim will probably receive if the case goes to trial, after taking into account comparative negligence, the risk of losing, and the expense of litigation. Calculating the break-even point requires the injury lawyer to ask four questions:
- What damages would a jury award at the conclusion of a trial?
- How would a jury assess the comparative negligence of the drivers?
- What are the odds of losing?
- How much will it cost to take the case to trial?
The first question represents the starting point in the settlement calculation. It is based on a personal injury lawyer’s experience in bringing similar cases to trial, as well as an awareness of what juries in the county where the accident occurred have awarded in other cases with similar facts.
The second question allows the attorney to calculate how much of the verdict will actually be awarded to the injury victim. In California, the court reduces the jury’s determination of damages in proportion to the jury’s assessment of how much the injury victim’s negligence contributed to the accident. San Jose personal injury lawyers use their knowledge and experience to decide how the jury would assess comparative negligence.
The third question is similar to the second, but it takes into account the possibility that a jury might award nothing. That doesn’t happen often in car accident cases, but there is a risk that it will happen in cases where the facts of the accident are substantially disputed.
The last question recognizes that it is more expensive to take a case to trial than to settle. Assume that a jury would award compensation of $60,000 and that it would determine the injury victim to be 20% at fault. The injury victim would receive a judgment for $48,000. The lawyer decides that there is no serious risk that the injury victim will lose the trial so no further deduction is made from the $48,000. If it will cost an extra $6,000 to bring the case to trial, the injury victim will receive compensation of $42,000. If the insurance company will not agree to pay more, it makes sense to accept a $42,000 settlement, because that is the what the injury victim will probably receive after a trial.
Examining each of those four questions in detail will help car accident victims understand how a lawyer decides what their case is worth.
What Damages Will the Jury Award?
By the time a case is ready to settle, a San Jose car accident lawyer will have gathered evidence needed to calculate the jury’s probable award of damages. Components of the award may include:
- The amount of lost wages to the date of trial
- The present value of any future wage loss that the injuries are likely to cause
- Medical expenses incurred to the date of trial, including pharmacy expenses, physical therapy, and related health care expenses
- Future medical expenses related to the injury
- The expense of coping with a permanent injury (wheelchair purchases, caretaker salaries, vocational training, etc.)
- Past and future pain, suffering, emotional distress, and loss of enjoyment of life
Past economic losses can usually be calculated by adding them up. To calculate future economic losses and expenses, car accident attorneys often enlist the help of physicians, economists, and vocational experts.
Calculating pain and suffering is more difficult. The assessment depends on the severity of the injury, the duration of pain or disability that the accident caused, and the impact of accident-related suffering on the victim’s life. Lawyers consider all of those facts and then determine what San Jose juries have awarded for pain and suffering under comparable circumstances.
How Will the Jury Assess Comparative Negligence?
A rear-end collision may involve no negligence on the part of the driver who was rear-ended, particularly when that driver was stopped at a red light or was waiting for traffic to move. In other kinds of accidents, a jury will often award at least some degree of fault to the injury victim for failing to anticipate the negligence of the other driver. Seasoned lawyers are able to estimate how the jury will assess comparative negligence based on jury verdicts in similar cases.
What Is the Risk of Losing?
In California, an injury victim can recover damages even if the victim was primarily responsible for the accident. An injury victim who strayed across a centerline and collided with a truck might be 90% responsible for the accident, but if the jury finds the truck driver to be 10% at fault for driving too close to the centerline, the injury victim can recover 10% of the his or her total damages.
However, a lawyer will need to consider the risk that the jury will place all the fault on the injury victim. If that happens, the victim will recover nothing. If winning the case will probably result in a finding that the victim was 90% at fault, the lawyer will calculate 10% of the damages as the likely value of winning the case. But if there is a 50/50 chance that the victim will be found 100% at fault, that value will be reduced by 50% to account for the odds of losing.
What Will a Trial Cost?
Some expenses, such as the cost of obtaining medical records, must be incurred whether or not the case goes to trial. However, every trial involves extra expenses. The greatest expense usually involves the fee charged by expert witnesses, including doctors, accident reconstruction engineers, economists, and other experts who are needed to prove fault or damages. Since those costs are saved by settling, they must be factored into the calculation of the break-even point.
Calculating the break-even point requires experience and a keen awareness of how local juries have decided cases. Choosing a car accident lawyer with a good reputation, a track record of success, and years of experience will help a car accident victim obtain a fair settlement.