Posted by Gary Burger on December 22, 2015 in Personal Injury
When someone is injured or killed in an accident, we demand that they receive full compensation for all of the harms and losses that they have suffered or their family suffered. I’m Gary Burger and this is my firm Burger Law.
Injury Due to Negligence
This goes back thousands of years both in our culture and in every religion on the planet. If someone, a person or a business, violates a safety rule in our community – if they go through a red light, if they are speeding, if they act carelessly while driving, if they are not keeping a proper lookout, a truck driver is too tired or he violates a rule, or a landowner has a dangerous condition of their property, or a lawyer or doctor does something wrong – whenever these societal rules that we have are broken and it causes damages to someone, the word “justice” means that those scales are balanced.
What it Means to Balance the Scales of Justice
And when you balance those scales, you don’t partially balance those scales. You don’t say “Hey, I have a personal view that pain and suffering damages should not be awarded, so I am only going to pay 80 percent of their damages. Or I don’t think wage loss damages or future medical or other components…” No, that is not how that works.
If you work a 40 hour work week and your employer comes in at the end of the week and says, “You know what? I know I owe you your paycheck. I am only going to pay you for 30 hours this week because I have a personal or philosophical view point that you should only get 30 hours a week or 75 percent of your damages.” That is now how it works.
So when I am trying cases and we are presenting claims to insurance companies, to truck companies, to corporations, to whatever entity we are pursuing a claim against, (and the person we are pursuing the claim against is the one who violated the rule, the safety rule that is meant to keep all of us safe, whether it is kids or adults or whoever,) when we pursue those claims, we insist on full compensation. Not “let’s not pay because the person had a back treatment before.” We don’t say, “Hey We are not going to give you 100 percent because I don’t believe in pain and suffering.”
Types of Damages in a Personal Injury Case
So let me talk to you about your components of damages. That is the idea and that is what we try to tell jurors and claims adjusters and corporations to ensure that. And we insist on that. The reason I do what I do is not to get 75 percent compensation for my clients, but to get 100 percent.
Let me show you a chart that I did for a recent trial and give you an example of some of the damages. So, when we talk about damages, you have certain categories of damages. You have the past neck pain and injury that this client sustained. You have the future neck pain that she had. And that pain and suffering can vary.
The question is how bad is that pain? How long has it or will it last in the future? And how interfering is it? It can be really bad but last for a second and then not interfere with her anymore. It can be medium but it can be permanent pain and the person will have neck pain for the rest of her life. And interfering, it can interfere greatly and the person can be in a wheelchair for the rest of their life and be paralyzed, or it can only interfere a lot and the grandma can’t lift the grandkids as much. So these ranges and these categories are how we teach jurors and how the law teaches jurors and how jury instructions and the law teaches jurors to assess these different elements of damages.
And that mostly goes for the pain and suffering. How much does it hurt? How long does it hurt? How bad is the hurt? How often does it happen? In the beginning did it happen every day and then later it happens once a week, or is this a permanent pain condition for which injections, pain medication or physical therapy is needed? Future neck pain: we take depositions of doctors and get evidence from the family about how much this happened in the past and is going to happen in the future.
Disability is a separate idea. Disability in law is the idea of how much are you physically unable to do what you used to be able to do. You can’t throw a baseball or play the piano because of an arm injury. You can’t walk around the block and spend time with your children and do the physical activities you used to do because you have a permanent limp condition because you injured your pelvis, knee, ankle or foot. So that is a disability idea that is separate from pain and suffering and that can be passed into the future.
Disfigurement means that you have a scar and that affects you. We have folks who have scars from dog bites on their face or from auto accidents or whatever or on their hands or somewhere visible. Sometimes a scar isn’t going to be that material or that significant, but sometimes it really is. We can also ameliorate or address those damages by having someone go to a plastic surgeon. Sometimes those scars can be filled in or taken down. Future medical is always a component to that – medical damages, expenses and future medical expenses.
You can also have a category of damages of wage loss. You can have past wage loss and future wage loss. In the future, your wage loss is often calculated with an expert. We hire economists and invoke rehab experts to come in and say how much you could have been making had the accident not happened, how much you are making now and reduce that amount to present value to give the jury an element of damages.
In wrongful death cases, it is different. We hire economists to show how much the deceased family member would have provided to the family in the future and you take it out through their work life expectancy and reduce that amount to present value and that is the number we give to the jury. We are always very accurate and we try not to exaggerate these numbers so that the jury gets the credibility and understand that this is only meant to fully compensate, not to excess compensate, but then again under compensating is not appropriate.
There are other elements of damages depending on the case. If you call me, I am always happy to talk with you about it. You can have disfigurement as I mentioned. You can have teeth pain. This happened to have this in this case. And in Illinois – we try cases in different states and different states have different ways of describing damages in the jury instructions – they talk about life changes and how much an accident affects your life. And that kind of can go into disability and transcend a couple of areas but in Illinois that is a separate area.
So regardless of the category of damages that you have – wage loss damages, medical damages, pain and suffering damages, life change damages, disability, disfigurement, all of these elements – we don’t duplicate or double dip into these areas, but we do try to present these areas so that juries, and the claim agent, and the truck company, or the guy that hit your, or the land owner, or whoever it is understands and they get the harm. There is no burden easier than another man’s troubles. What we try to do to fight that idea is to really get the jury to understand and walk in your shoes and be empathetic to what an injury victim suffers. We work hard on that and we would do that for you. If you have any questions, call me. Thanks.