We may receive this question several times a day from potential clients.  Unfortunately, the answer is it depends, and the reason for that is all injury cases have different facts and circumstances.  And those facts and circumstances will change as the case develops from the time a law firm is retained all the way through trial.  Even insurance companies, which feed claims through complex computer programs such as Colossus for an estimate of the value of bodily injury, are often wrong.  Instances of jury verdicts and judgments greatly exceeding insurer's offers to settle are case are common.

That is not say injury lawyers accept any and all cases without a second thought.  There are a few factors lawyers look at to get a sense of the value of an injury case.  Those are: (1) jurisdiction and venue; (2) liability; and (3) damages.

What is “jurisdiction” and “venue,” and why do they matter?

Jurisdiction in this context relates to whether the potential lawsuit can be filed in state court or federal court.  With some exceptions, it is more beneficial for a plaintiff to be in state court.  Procedural and evidentiary rules are less restrictive and there is no unanimity required for a verdict in state court.

Venue regards the particular county in the state where the lawsuit may be filed.  Those counties with rural populations tend to have more conservative judges, juries, and verdicts and are favorable to defendants.  Those counties with urban populations tend to have more liberal judges, juries and verdicts and are favorable to plaintiffs.

Why does jurisdiction and venue matter?  If a case is likely to be filed in state court in a liberal venue such as St. Clair County or Cook County, Illinois, then the plaintiff's attorney will be more aggressive in the value he ascribes to the injury case, and the defendant and his insurer will be more open to paying a higher amount to settle it.  If a case is likely to filed in a conservative venue, then the range of value the parties give it will decrease.  Some lawyers may pass on the case entirely if it must be filed in federal court.

Jurisdiction and venue are the "where" of the lawsuit.  As one beloved mediator explained:  think of your injury case as your SUV.  It would clearly have greater demand and resale value in the mountainous snowy terrain of Western Colorado where 4-wheel drive is necessary than in Southern California where it's sunny all year round.

What is “liability,” and how does it affect the value of my case?

Being liable means being responsible for the harm or injuries to another.  In the context of a civil injury case, it means a person or entity was at fault due to its negligence, carelessness or intentional actions and must pay for the resulting damages.  

There can be multiple parties with various degrees of fault in a single case, such as cases involving a number of cars leading to pile up on a highway.  There also instances where there can only be one party with liability.  Single-car collisions involving injured passengers is an example of the latter; the potential fault is limited to the driver because the others in the car were not in control of the vehicle.  The plaintiff may also have fault for causing the collision or other mechanism of injury, or comparative negligence.  Perhaps the plaintiff was distracted on his mobile phone and failed to take evasive action to avoid the pile up the defendant started.  In Illinois, a modified comparative fault state, an injured party can only recover damages if they are found to be less than 50% at fault for the accident. If the plaintiff is 50% or more responsible, he is barred from recovering any compensation.

Lawyers in the industry commonly refer to liability as the first half of what the plaintiff must prove to win his personal injury case.  That he suffered damages and that defendant's acts or omissions caused those damages are the second.  Clear liability (of the defendant) means the plaintiff's case will be worth all the damages he can prove.  Partial fault or no-fault determinations for the defendant will reduce or completely eliminate the value of the case.  Also, a finding that plaintiff is 50% or more responsible means the case is lost. 

What are my damages in a personal injury case?

The damages of a plaintiff in a personal injury case are the harms and losses caused by defendant's negligence.  Illinois law recognizes several categories of damages available to plaintiffs in negligence injury cases. 

Illinois recognizes a comprehensive framework of damages available in personal injury cases without statutory caps. The available damages include: (1) economic damages  such as medical expenses, lost income, and property loss; (2) non-economic damages including pain and suffering, disability, disfigurement, loss of consortium, and loss of normal life; (3) punitive damages for willful, wanton, or intentional conduct; (4) prejudgment interest at 6% per annum; and (5) special provisions for wrongful death and survival actions. Illinois does not impose statutory caps on compensatory damages following the Illinois Supreme Court's ruling in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997), that such caps violate the state constitution.

Damages are the second half of what a plaintiff must prove to win.  Assuming a plaintiff can establish fault on the defendant, then the damages will determine how much he will be awarded.  Usually, the total value of the case rises and falls with the type, severity and longevity of the harm.  A car wreck case where the plaintiff suffers soft tissue injuries requiring chiropractic treatments and few days off of work may garner a settlement in the tens of thousands.  The same case may be worth a hundred thousand dollars if the plaintiff suffered a badly torn rotator cuff requiring major surgery and months of treatment.  And the calculus would be in the millions were the plaintiff to have suffered a debilitating injury, such as amputation or paralysis, that leads to lifelong, expensive medical care, permanent and total disability, and a grave loss of enjoyment of life.

Valuing your personal injury claim is difficult and should be left to lawyers who specialize and have experience in injury litigation in Illinois.  Other factors, such as affirmative defenses, special requirements and defenses in sub-fields within personal injury litigation, evidentiary issues, insurance coverage, collectability, litigation and expert costs, etc., are beyond the intended scope of the article.  Even the three factors discussed – jurisdiction, liability and damages – were only given superficial treatment.  Our Illinois trial lawyers are here to help.  Please contact us at www.bautistaleroystl.com or 833-381-6589 for a free consultation to discuss the potential value of your personal injury case.