In general, case value can be comprised of a few things: past and future medical bills, pain and suffering, mental anguish, lost wages, disfigurement, lost earning capacity, loss of consortium and loss of companionship and few other items.
In Texas, there are two elements of damages, general damages and special damages. Pain, suffering, mental anguish, loss of consortium and companionship fall into the category of general damages. These are typically harder to quantify because they are not tied to a dollar figure like past medical expenses (special damages). Special damages consist of specific expenses that are quantifiable like past medical bills.
Maximizing case value requires your lawyers to maximize the amount obtained for general damages. So what are general damages, i.e. pain, suffering and mental anguish?
Pain, suffering, and mental anguish can best be described as monetary value of the past and future pain or trauma caused by Defendant’s negligence or the injuries resulting therefrom. This includes actual and future physical pain and mental pain.
A. Mental Anguish:
An example, imaging a dog bite case where a rabid German Sheppard escapes from his yard, chases you down the street as you are jogging by his house, and bites you. No doubt this event would be extremely traumatizing. You could suffer from Post Traumatic Stress Disorder (“PTSD”) but at a minimum would be scared of dogs for the foreseeable future. It is likely that you would relive the incident every time you see a dog. All of these thoughts and fears after the bite itself are excellent examples of mental anguish. General damages do not just include mental anguish up to and including settlement of the case, it can also include the future mental anguish that a person will likely endure in the future. A great example of future mental anguish that I have successfully used is the fear of driving after a serious car accident. The client is waiting for the next impact and having flashbacks of the wreck anytime another driver gets close to them. The fear of getting in another wreck and getting hurt again can persist for years after the collision.
The key to maximizing this damage element is your attorney’s ability to convey the trauma you have sustained to the decision maker in real tangible examples. At my firm, I work hard throughout the case to check on client’s mental wellbeing after incident and try to identify concrete examples of mental anguish I have observed since being retained. For example, I recently had a car accident case where my client severely fractured her wrist requiring surgery and hardware. As a matter of course, I always ask client’s during our consultation to tell me how the accident happened. This particular client broke down in tears and began shaking as she recounted the collision. This event stuck in my mind, and I leveraged it when negotiating with the insurance adjuster ultimately resulting in a great resolution to the case. Sometimes, I request that client’s keep a journal of fear, anxiety, or other negative emotions linked to what happened to the client. This eases the trial preparation process and ensures that none of the client’s mental anguish is forgotten during the course of the lawsuit.
B. Pain and Suffering:
Pain and suffering on the other hand means exactly what it says, it is pain and suffering associated with the event itself and the injuries stemming therefrom. This includes past pain and suffering from the date of injury up until settlement as well as future pain and suffering.
It is imperative that your attorney convey the pain and suffering you are going through to the insurance company or opposing counsel in order to achieve the highest settlement possible. Again, I often identify specific daily life activities that are impossible or more difficult since the injury to support how much is being requested for pain and suffering. An effective example that I have used before is the single mother who can no longer pick up her toddler or play with her in any meaningful way following a car accident that injured her neck. Tugging at the heart strings of the decision maker signals that you intend to tug at the heart strings of the members of the jury should the case go to trial.
Much like pain and suffering, not all disfiguring injuries are created equal. In an insurance companies eyes, the value of such injuries is dictated by:
(1) where the scar or disfigurement is located – In the case of visible scars, this can be leveraged in your attorney’s request for mental anguish in the form of embarrassment of the scar. Again, I have found concrete real life examples are most effective such as that the client declined a social event because they were self-conscious.
(2) the projected permanency of the scar or disfigurement – Not all scars last forever depending on the depth of the cut and other factors such as how the cut was treated by your doctor and exposure to sunlight after the fact. It is important that your attorney document the progression of the scar throughout the case to substantiate the projected permanency of the scar.
(3) the condition of the scar or disfigurement at the time the demand is made.
Aside from the above, it is important for your attorney to remember that these elements of damage translate into ruined lives, strained relationships, and real world problems for their clients. At my firm, we empathize with our client’s situation, which helps us convey the above in the most effective way possible.
If you or a loved one has been hurt in a car accident, a truck wreck, a slip/trip and fall, at work, or by an animal, give my personal injury firm a call at 972-478-4353 or submit a contact form. My firm will be upfront and candid with you about your case and work hard towards the best result possible on your case.