Attorneys always sue for much more than they are likely to settle for, as they want to keep the stakes high with the threat of a potential jury verdict. So the answer to the question, “How much should I sue for?” is “some ridiculous arbitrary amount that is much more than your case is actually worth.” That’s why people hit the ceiling when they are served with a summons and complaint after a fender bender and see that they are being sued for $50,000,000! When people ask how much they should sue for, what they really want to know is how much their case is worth. That’s a complicated analysis that usually requires the assistance of an attorney, as there are many factors to consider. That would seem simple, except that ethical attorney loathe to make promises about outcomes for their clients, and sometimes judges and juries do not live up to their expectations. Here are some factors to consider to understand how much it might be reasonable to collect in damage (a money judgment or settlement) for an injury case.
INSURANCE COVERAGE
The most important limitation on how much money can be collected in a lawsuit is the amount of insurance coverage. A lawsuit is not limited by the amount of insurance coverage, but as a practical matter is it not generally possible to collect more money than the applicable insurance coverage. So when an attorney (and he shouldn’t be doing this) makes any promise about how much a case is worth, you should always ask how much insurance coverage there is. For automobile accidents, the minimum coverage required in New York is 25/50, which covered $25,000 dollars for an individual claimant and $50,000 per incident. This is the minimum amount required, but many drivers carry more, especially if they own their residence. Taxis must have 100/300 coverage and commercial vehicles can sometimes have upward of a million dollars in coverage.
LIABILITY
Once it’s established how much coverage is available, the next step is to analyze the negligence claim itself. This is easy if you were hit in the rear by a drunk texting driver that is clearly 100% at fault. An intersection collision is more complicated, as you and the other driver may have different stories to tell. There are usually no witnesses to traffic accidents and it is quite common to see police reports that have both drivers claiming the other driver went through the light. It is very difficult to prove who actually went through the light – it might require retaining very expensive accident reconstruction experts, which would not be worth it unless the injuries sustained are very severe. For slip and falls, it is necessary to prove “notice” of the which can be “reasonable” or “actual” dependent on who is being sued. Reasonable notice means that the property owner “knew or should have known about the dangerous condition.” For example, when you slip and fall on water in a supermarket, it is often very difficult to prove reasonable notice because it’s impossible to know how long the water was on the floor before you fell. It could have been dropped by another patron moments before you fell, and it would not be reasonable to expect a store to notice things this quickly. This is a difficult pill to swallow for claimants that are seriously injured in such falls, that the amount of recovery for settlement can be much less than they expected for their injuries because of the settlement “discount” for the difficulty of proving notice. Attorneys do not want to litigate cases with a “notice problem,” because the case could be dismissed! These are many other examples, but it’s important to remember that how strong the claim for negligence is will impact the value of the case overall.
INJURIES
The value of an injury depends to a large extent on how well it heals. Sometimes there are injuries that are very painful for the first couple of weeks, but heal completely. With that happens, and there is little to no lost time from work, the value of the case is small, even if the person was hit in the rear by a drunk driver! On the other hand, some injuries will take longer to heal and will result in a great deal of time lost from work, and may be worth more than what would be expected for that type of injuries. The “egg shell” skull theory that attorneys learn about in law school, explains that when somebody has a pre-existing condition that makes the injuries heal more slowly, the negligent person is responsible for these damages. Even with fractures and surgery, most cases are not worth more than several hundred thousand dollars. For catastrophic injuries, such as blindness or paralysis, the damages can be in the millions.
I hope this FAQ answer gives you some good questions to ask your lawyer!
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