Determining Compensatory Damages - Look At The Big Picture But Don’t Forget The Details

1. The Big Picture

You must assess the accident in terms of impact, force applied to the occupants, amount of property damage and the credibility of your client. A red flag should appear if your client now has pain from head to toe, but the client made no or few complaints at the accident scene and the collision appears to be very low impact. The claim must pass the "smell test." If it doesn't smell right, there are usually problems under the surface. However, many otherwise legitimate claims will come with less than spectacular property damage. Do not give up on every claim where the property damage is modest or even minimal. A good physician will not be dissuaded from supporting an injury claim just because the rear of the car looks intact. The issue is the force applied to the occupant, and the stiffer the car and the more it "holds its shape", the more force is likely transferred to the occupants. This can be a tough sell, but lay witnesses (such as family members and co-workers) can be invaluable in establishing the credibility of the client. In the end, the judge or jury will likely decide the damages based on how they view the client.

Practice Pointer : Where you have reason to believe the client was truly injured, but the property damage appears to be modest, consider hiring a damage appraiser. The appraiser can measure the frame for bending, inspect for damage behind the bumper covers (which are usually designed to pop back into place even in a significant impact), and look for uneven gaps around the doors and trunk. The appraiser may be able to document structural damage not readily apparent.

2. The Settlement Money Is In the Details

Do not forget about the law which gives you the right to argue damages. For example, case law provides that physical pain and mental anguish can be inferred from an injury. Even where the physical injury is slight, you may have a good argument for mental anguish and suffering. The following passage form a recent Virginia Supreme Court case is instructive:

We have held, for well over a century, that mental anguish may be inferred from bodily injury and that it is not necessary to prove it with specificity. Norfolk & W. Ry. Co. v. Marpole, 97 Va. 594, 599-600, 34 S.E. 462, 464 (1899). Mental anguish, when fairly inferred from injuries sustained, is an element of damages. Bruce v. Madden, 208 Va. 636, 639-40, 160 S.E.2d 137, 139 (1968). ...[T]he plaintiff suffered physical injury, albeit remarkably slight under the circumstances, as a proximate result of the defendants' negligence. Thus, mental anguish could be inferred by the jury and would constitute an element of damages. The plaintiff makes no claim, however, that her mental state after the accident, and the deterioration of her physical condition, resulted from her relatively slight bodily injuries. Her claimed damages relate almost entirely to emotional trauma suffered as a result of the accident. The question remains: What, if any, limitations apply to the sources of emotional distress for which the plaintiff may be compensated in damages?
Here, the plaintiff was clearly entitled to be compensated in damages for any emotional distress she suffered as a consequence of the physical impact she sustained in the accident. Such distress might include shock and fright at being struck three times, turned over, left hanging upside down in her seatbelt and experiencing physical pain. It might also include anxiety as to the extent of her injuries, worry as to her future well-being, her ability to lead a normal life and to earn a living. It might include fear of disability, deformity, or death. Such factors were proper subjects for the jury's consideration because they might fairly be inferred from the physical impact of the collisions upon her person. They might also be taken into account as factors causing exacerbation of her pre-existing mental and physical conditions. Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006).

Jurors selected for your trial may come into the courthouse with the feeling that most plaintiffs are uninjured and are merely milking the insurance companies. A thorough review with the client and his witnesses, both lay and expert, can usually unearth facts which support credible arguments that the client really did suffer and really was injured. To overcome juror bias, the plaintiff will need to marshal all facts consistent with injury and apply them to the law as cited in these materials.

Practice Pointer: For the plaintiff to be successful at trial, jurors will need to identify with the plaintiff's predicament. Therefore the case should be presented with eye towards establishing that the injury suffered by the plaintiff was the result of conduct which could also threaten the jurors or their family. This theme should begin with effective voir dire, and be repeated in opening and closing. You cannot explicitly ask the jurors to put themselves in the shoes of the plaintiff. Velocity Express v Hugen, 266 Va. 188; 585 S.E.2d 557 (2003). Instead, you should gear your presentation to show how the defendant's conduct endangered the community at large, and not just the "litigious" plaintiff.

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