SOME STRATEGIES FOR POTENTIAL TORT CLAIMANTS --

Personal injury litigation, an unwelcome bane for most everyone, is sometimes a necessary evil for persons with disabilities. Such lawsuits may provide an important means of paying costly medical expenses and of compensating injured parties for other damages which they have incurred due to another's fault.

Personal injury cases are controversial. Criticism about the amount of money spent on settling claims and paying jury awards will likely remain in the forefront for years to come.

How are personal injury damages determined, and how should persons with disabilities prepare themselves for such cases? There is no single guideline which applies in every case, but certain general principles follow.

First, prospective litigants should keep in mind that the vast majority of personal injury lawsuits which are filed (over 90% nationwide) are eventually settled out of court. The process of arriving at an agreeable settlement requires balancing a number of factors including: the relative ease or difficulty in proving the defendant's liability, the plaintiff's attractiveness to potential jurors, the availability and strength of expert witnesses, the relative ability of counsel and the expenses associated with their legal representation, the amount of insurance coverage available to the defendant, and the maximum amount of potential damages.

For claims covered by insurance, adjusters typically set aside a specific sum of money, called a reserve, at the beginning of the litigation. This fund represents the insurer's best estimate of the case's value. This amount may change during the course of the litigation as additional facts are discovered or if the applicable law changes. It may ultimately be difficult to settle a claim for a sum exceeding the reserve amount unless the plaintiff's counsel can convince the adjuster (either directly or through defense counsel) that subsequent developments have increased the insurer's exposure since the time when the plaintiff's claim was first brought. Therefore, it is important to inform the insurer of its total exposure at the outset of the claims process.

When assessing potential damages, plaintiffs' lawyers and defense counsel typically reflect different perspectives, but their approach is essentially the same. The lawyers on both sides evaluate each of the following factors which potentially affect the amount of damages that may be recovered: past, present and future pain and suffering (both physical and emotional); disability, disfigurement and loss of function damages; past, present and future medical expenses; past and present income loss; future loss or impairment of earning capacity; and so-called hedonic or loss of enjoyment of life damages. Depending upon the jurisdiction involved, close family members (such as spouses, children and parents) may also recover for their losses of the plaintiff's companionship and affection. To assist them in their damage estimates, lawyers may retain the services of medical experts, economists, vocational rehabilitation specialists, and life care planners.

Questions often arise, in the disabilities context, whether plaintiffs should live their lives any differently in order to enhance their prospects of a recovery. In all instances, honesty is the best policy. Based on my 20 years of experience in litigation, the clients who do the best are those who cooperate fully and provide complete and accurate information. It is never in a plaintiff's best interests to exaggerate any aspect of his or her claim.

When considering whether to return to work, plaintiffs should follow their treating physician's advice and recommendations. They should not deliberately refrain from work, rather than seeking some alternative employment, if they are capable. Attempted employment represents a win-win option. If the plaintiff can successfully hold a job, he or she will feel and be productive and happier. If he or she cannot maintain a position, he or she will have at least tried and will have created a more compelling case for recovering lost earning capacity damages.