I filed a claim against a municipality for breach of contract. They are willing to make a settlement, and included in the settlement is a sum for emotional distress. What should I take into consideration?
First of all, I agree with my colleagues that there is no sole factor. As for what you should take into consideration--how about hiring a lawyer? You would truly be doing yourself an injustice if you try to settle a claim--whether against a municipality or a private party--without the guidance of a local attorney. Many of us offer free consultations, so you have absolutely nothing to lose by just calling (before you accept any kind of settlement offer).
Figuring out the amount one should receive for emotional distress damages is a daunting task. Indeed, legal scholars have written entire books on this subject. A local law library will likely have such books, and a review of some would provide some insight. Another place lawyers look to figure out what a case should recover for emotional damages is verdicts and settlements from similar cases. Lots of data can be crunched to calculate a number, and then that number must be supported by testimony and documents.
Paul J. Molinaro, M.D., J.D.
Attorney at Law, Physician, Broker
Fransen & Molinaro, LLP
980 Montecito Drive, Suite 206
Corona, CA 92879
www.fransenandmolinaro.com / www.888MDJDLAW.com
"When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW."
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** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.
The key issue is not what your emotional distress claim is "worth," but what it will bring voluntarily in the current process from the municipality. Those are two very different concepts, and the municipality has a much lower number in mind that what the "market" would tell you your claim is worth. But, assuming you wish to wrap this up by a voluntary settlement with no attorneys fees, here is the most reliable method for calculating your number:
Your municipality maintains records of all settlements and verdicts against it. These are public records, although often "redacted" as to matter enabling identification of the claimant(s). You don't care about the identities of former claimants, anyway. Access the registers or indices of settlements and verdicts, and read through the factual summaries. You will get a good sense of the numbers that the municipality has voluntarily offered in similar factual circumstances, and of the numbers that the municipality has suffered by verdicts matters with similar facts. Somewhere between those two is your number.
These records can be very well-buried and it is not easy to get access or to understand the data once you have access. But the info is public record in CA, so it can be done and the value of this comparable data is significant.
Persuading the municipality to accept a specific number supported by the data may be harder than you are expecting. You should give serious thought to retaining an attorney for this limited task-specific work. Your residential municipality is notorious for hard-line positions, but perhaps that is not the defendant municpality.
I never, and I mean NEVER, factor in the potential for "emotional distress" and/or punitive damages when attempting to settle an action. At least not in some quantifiable form. There are too many variables, and you must recall that your only real opportunity to gain an actual award for "emotional distress" comes at the end of a trial. If your demands are too stratospheric, you disincentive the other side from settling, and suddenly trial becomes a more attractive option for your opponent. Trials are expensive, financially and psychically. You may not prevail. Whether paying attorneys fees or via contingency, any recovery will be reduced. Finally, you wrote that " included in the settlement is a sum for emotional distress." Does that mean that the City has already agreed to such sum, at least in principle, or is it your position that such damages must be considered? Whatever the case, I hope you are using an attorney to assist you, because the strategic questions are many. Good luck.
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