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There is no simple, universal formula that lets us put a price tag on injury, pain, and suffering. Rather, at Hamstead, Williams & Shook P.L.L.C. we rely on our experience in handling injury cases of all kinds to enable us to form an expectation as to what your case might be worth. This experience is crucial in order to ensure that your case will not be settled out of court for less than it is worth in court.

There aren't any hard and fast rules, nor are there any magical mathematical equations, to derive an exact number for your damages. To determine the worth of your injuries, an attorney in our firm will calculate your lost income, medical expenses, and property damage. In addition, we will meet with you to discuss in detail the nature of your pain and suffering, mental anguish, emotional distress, loss of enjoyment of life, loss of consortium, and lost opportunities. When appropriate, we will seek the help of medical specialists and employment specialists to assist in proving the nature and extent of your damages.

In addition we will use our expertise to assess a number of other relevant factors, such as the degree of the defendant's liability, the nature of the injury, your credibility to jurors, the defendant's credibility, your age, and whether there are any witnesses who will support your claims and the credibility of those witnesses.

The formulas serve merely as guidelines. Every case is different, and, as a result, every outcome is different. Though we can never guarantee that a certain set of facts will result in a certain amount of damages, we can guarantee that we will vigorously pursue every avenue of recovery available to you in order to maximize the amount of compensation that you will receive.

Factors Affecting Damages Awards

  • NATURE OF INJURY

    It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffering from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve only muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. Serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

    In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.
  • DEGREE OF DEFENDANT'S LIABILITY

    As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will be no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Hamstead, Williams & Shook P.L.L.C., we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.
  • COMPARATIVE NEGLIGENCE

    If a plaintiff is found partially at fault for an accident, he or she has not necessarily lost his or her case altogether. In West Virginia, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, as long as the plaintiff's fault is less than the combined fault of the defendants.

    Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs. However, it finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. After applying comparative negligence, you would be entitled to $70,000 in damages – $100,000 minus 30 percent. If you were found 51% negligent though, you would not be able to recover at all.
  • PLAINTIFF'S AND DEFENDANT'S CREDIBILITY

    Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

    The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

    The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20 year old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.
  • PLAINTIFF'S AGE

    Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are an 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.
  • WITNESS TESTIMONY

    The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts," the background and professional experience of your expert is critical to establishing his or her influence over the jury.
  • JOINT AND SEVERAL LIABILITY

    As a general rule, West Virginia holds two or more defendants who are responsible for causing an injury jointly and severally liable. Woodrum v. Johnson, 210 W. Va. 762 (2001). This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff. For example, if defendants A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 20% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two. However, A and B have what is known as a right to contribution. This means that if the plaintiff recovers more than A's "pro rata" share of the damages, then A can sue B for partial reimbursement. Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W. Va. 16 (2001).

Related Content

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and file a lawsuit prior to the deadline imposed by the Statute of Limitations. If you or a loved one is a victim of personal injuries, call Hamstead, Williams & Shook P.L.L.C. now at 888 – 298 – 2529. The initial consultation is free of charge, and if we agree to accept your case, we will work on a Contingent Fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires. 

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use