This question is on everyone’s mind in the wake of a car crash, slip-and-fall, dog bite, or other serious injury. Unfortunately, this query has no answer. Any lawyer who tells you otherwise is either not very experienced in these matters or telling you what you want to hear.
Establishing an accurate settlement value is an essential part of a Marietta personal injury attorney’s job. Agreed settlements resolve about 95 percent of these cases, and knowledge of value is very important.
Assume your neighbor wants to see you her used car for $3,000, and you want to buy it. However, even though you know and trust her, you would not just hand her three grand without doing some legwork. That homework usually includes verifying the car’s blue book value, asking a trusted mechanic to look at it, and looking at prices of similar cars in the area.
An attorney goes through a similar process to determine a case’s settlement value. Then, a Marietta personal injury attorney usually sends a demand letter to the insurance company. Many cases settle at this point, but many others drag on for several more months. Insurance companies usually delay settlement as long as possible. They earn money by keeping settlement funds in their accounts, and they also hope that the victim/plaintiff will lose hope and quit.
Since the victim/plaintiff has the burden of proof in an injury case, evidence is essential. The police accident report and the victim’s own testimony are usually quite important, at least in most cases.
However, these pieces of evidence are not always available. Police officers usually do not respond to falls and many other such incidents. Additionally, the victim is often unable to give a statement. So, the police report may only contain one side of the story. And, the victim may be unable to effectively tell his or her story in court.
So, a personal injury attorney must look for alternative evidence. Depending on the type of incident, there are a number of options, including:
- Video Footage: Red-light cameras and/or private security cameras often cover most intersections in Marietta. The same thing applies to a slip-and-fall at a large retailer or other establishment.
- Event Data Recorder: All newer cars and trucks have EDRs. These gadgets usually capture and record things like vehicle speed and steering angle at the moment of the crash. The information is very specific and, since it comes from a computer, almost always accurate.
- Additional Witness Statements: These statements are very important in all kinds of injury cases. Dog bites are a good example. If a person saw the dog behave viciously several weeks or months before the bite, that testimony could be critical in the case.
Evidence also includes medical records. Financial bills, diagnostic reports, and other statements are important. Additionally, many doctors and nurses include treatment and therapy notes. These notes effectively supplement the raw data.
As a brief side note, an attorney should not settle a case until medical treatment is at least substantially complete. Personal injury settlements almost always include waivers. So, there is no way to re-open the case and get more money if it is needed.
Theory of Recovery
Next, an attorney must plug the evidence into the proper legal theory. Most Georgia injury cases involve one of the following three legal theories:
- Ordinary Negligence: Most people have a duty of reasonable care. For example, most vehicle operators must drive defensively and, as my grandfather said, look out for “th’ other fella.” Since they are common carriers under state law, commercial drivers, like Uber drivers and truck drivers, may have a higher duty of care.
- Negligence Per Se: Sometimes, Georgia law establishes the standard of care. Many car crashes involve DUI or other moving violations, lots of dog bites involve leash law or other violations, and many falls involve building or safety code violations. If the violation substantially caused the victim/plaintiff’s injury, the tortfeasor (negligent actor) may be liable for damages as a matter of law.
- Strict Liability: Sometimes, carelessness had nothing to do with the injury. Instead, a defective product, like a dangerous Takata airbag, caused the victim/plaintiff’s damages. Product manufacturers are automatically liable for injuries that their dangerous products cause.
Many ordinary negligence and negligence per se claims also involve third party liability. For example, commercial alcohol providers, like bars and grocery stores, may be responsible for damages if their intoxicated patrons cause a motor vehicle crash.
Next, based on the law and the facts, an attorney must consider any insurance company defenses. Contributory negligence is one of the most common defenses. Many times, both the tortfeasor and victim are partially responsible for the incident. A car crash is a good illustration. If the victim was speeding and the tortfeasor was drunk, the contributory negligence defense may apply, at least in part.
Other legal loopholes include assumption of the risk, which is very common in swimming pool drowning claims. This doctrine may apply if the swimming pool had a “No Lifeguard on Duty” or other sign.
If the insurance company has a good defense, a trial is riskier. There is a chance that a jury may side with the insurance company, and the victim/plaintiff would receive nothing. So, a Marietta personal injury attorney must either debunk the defense or consider it when determining a settlement value.
To illustrate debunking a defense, let’s return to the assumption of the risk defense. A “NLOD” sign is not enough. The warning must be clearly visible. It cannot be buried on a long list of pool safety rules. Additionally, the victim must have been able to read and understand the sign. Many victims have limited reading skills, because they are children, or limited English skills, because English is not their first language.
Finally, there are some intangible considerations. Giving due consideration to these items means that your attorney will not give away the case for less than it is worth and will not needlessly and unfairly hold out for more money.
Venue may be important. If the case goes to trial, that trial will probably occur in the county where the accident happened. Less-populated counties, like Bartow and Cherokee Counties, usually have more conservative jurors than places like Cobb or Fulton County.
All these factors work together. The amount of evidence the victim/plaintiff has may be a consideration in this part of the process as well. The more evidence the victim presents, the more damages a jury is likely to award.
These damages usually include money for economic losses, such as medical bills, as well as noneconomic losses, such as pain and suffering. Especially in defective product cases, additional punitive damages may be available as well.
Rely on an Experienced Lawyer
The pre-settlement process for most accident cases is basically the same. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.