Cindy Speaker: Welcome to our broadcast today. My name is Cindy Speaker. We’re really happy that you’re with us today, whether it’s live or by replay. I have with me today, attorney Valeen Hykes of Michael J. O’Connor & Associates. She’s an attorney, and she’s going to talk with us about a question that I think is probably the most asked question that clients ask attorney’s, and I’ve heard this from a number of attorney’s. That is, “What is the value of my personal injury case?” Valeen, thanks for being with us today.
Valeen Hykes: Thank you for having me.
Cindy Speaker: Am I right, is that probably the most common question you get?
Valeen Hykes: Definitely, and it’s probably one of the hardest things to answer right off the bat.
Cindy Speaker: Yeah, yeah. Well let me start off and ask you, how do you go about valuing a personal injury case? What is that process?
Valeen Hykes: Well you have to look at the damages to the plaintiff, which is the person who is injured in the accident, whether it be a slip and fall, or a premise liability case. Then basically look at what we call, “Compensatory damages,” which are damages that would make the plaintiff whole again.
Cindy Speaker: Okay, can you … You say compensatory damages make the plaintiff whole again. Is that medical related, what exactly …
Valeen Hykes: It could be, yes. It usually, there are three types of damages. There’s economic damages, there are non-economic damages, and then there are also punitive damages, which we don’t look at as often. They don’t come into play as often because the punitive damages are really to put into place when somebody really has some egregious or outrageously careless conduct, where we need to compensate the plaintiff for what the defendant has done. Usually what you’re looking at are the economic and non-economic damages.
The economic damages are usually the damages where they’re a little bit more easy to quantify. A value can be placed on those much more easily than the non-economic damages. With the economic damages, usually you see things like medical expenses. It might be past medical, it can also be future medical. For example, if a doctor says that some additional treatment is going to be required, then you might want to … Then you’re going to want to include the future medical care as well.
There are sometimes where the medical care has stopped, so really you’re only looking at that past medical care, but in a lot of cases there’s still ongoing treatment that may be required, so you want to make sure you include that in the economic damages part. There’s also income loss, wage losses, wage loss. It could be wage loss if your insurance carrier … If you don’t have wage loss covered under your own policy, your primary care insurance policy, then you can recover some wage loss if needed. If it’s something in the past, or whether you have a doctor note stating that it’s likely that you’re going to be out of work in the future, then you can put a number on that as well.
Cindy Speaker: Okay.
Valeen Hykes: Out-of-pocket expenses, that might be another situation where you have a number that’s kind of easy to pin down. Other than that, maybe property loss, you might get the fair market value of your property if it’s lost. Those are some of the economic ones that I think are a bit easier to quantify, or put a value on.
Cindy Speaker: Right, what about the non-economic damages?
Valeen Hykes: The non-economic, those are a little harder. Most people think of a non-economic, or call them pain and suffering.
Cindy Speaker: Yes.
Valeen Hykes: What that is, is basically trying to put a value on how your life has been affected. Maybe either emotionally, or psychologically. There’s something called, “Emotional distress.” That can be, let’s say you were involved in a car accident, and after that you have this fear, this anxiety. Maybe you’re unable to sleep. Very hard to value those things, but it’s something that was caused by the accident, and of course should be taken into consideration when you’re valuing the claim.
There’s also loss of enjoyment of life. Maybe somebody, before the accident was very active in sports, maybe they liked to ride their motorcycle, anything like that. Anything that you were able to do previously, even simple things such as maybe going to the movies. If you can no longer sit through two hours during a movie, all those things are hard to value, but they still have an impact on the value of a claim.
Then I would say the other one is loss of consortium. That’s basically just looking at the relationships between your spouse and how they’ve been affected by an accident.
Cindy Speaker: Yeah, yeah. Well let me ask you this, are there rating tables, or how are these … There must be some kind of a system for actually assessing those losses. How would you go about that?
Valeen Hykes: Well I think that the easiest way to go about it is, what we usually do is we put together a demand package. We take all of those things, and we put it together. We take a look at the non-economic damages … I’m sorry, the economic first, those are kind of the easier things. We put a value on those. Then we take a look at the non-economics, and of course the punitive’s if they come into play. Usually you lump everything together, you come up with a number for the economic.
Cindy Speaker: I see.
Valeen Hykes: And go from there.
Cindy Speaker: Okay, okay.
Valeen Hykes: Also in that damages package that we send out, we include all the proof of the wage loss, we include, sometimes we include mileage. Usually it’s a very small amount, unless they’re traveling a lot. Prescription co-pays, even co-pays, or any type of … Anything that’s paid out of pocket for type of medical devices that you might need to help you with your injuries, we include all of that in the demand package. Along with a police report, just to show what happened. If we have any witnesses, or any testimony from those, we’ll include that in the demand letter as well. Along with, basically put a value on it to the insurance company as to what we think the value of the case is, and then start negotiating from that point.
Cindy Speaker: Okay, okay. Okay, so you put together a demand package based on the damages.
Valeen Hykes: Correct.
Cindy Speaker: Are there any instances where the person’s behavior affects, their actions affect the demand package, or the damages?
Valeen Hykes: There are. Let’s say in a situation where a plaintiff may have some type of fault, or may have played into the accident in some way or another. Basically if that plaintiff wasn’t more at fault than the defendant, then their damages may be affected by the amount of fault that can be contributed to them. That is one way to potentially reduce damages on the plaintiffs part.
There’s also something called, “Mitigating damages,” or, “Failure to mitigate damages.” Let’s say if somebody is employed in one capacity, and they’re no longer able to be employed in that capacity because of their injuries that they sustained, they are expected to lessen those damages. Let’s say if they can find another job that may not pay as much, but they’re physically and mentally capable of doing that, they are expected to mitigate those damages as much as possible.
Cindy Speaker: Yeah, yeah. Well and going back, because I know … I’ve heard this, having been in the legal industry for a long time. That people want to say, “Well what’s the dollar amount of my claim? What’s the dollar amount?” What would you say are maybe the one or two most significant factors in valuing your claim?
Valeen Hykes: I would say the length of treatment, and the severity of the injuries. As well as maybe wage loss as well, I would put up there as well.
Cindy Speaker: Okay, okay. So medical treatment is extremely important?
Valeen Hykes: Absolutely. I would say the longer the medical … I mean the longer the medical treatment, it’s usually the more severe the injury.
Cindy Speaker: Sure.
Valeen Hykes: Usually that’s one way to determine a pretty good value of the case versus a case that may not have as much value.
Cindy Speaker: Yeah. What about the issue of insurance, does that factor in? The type of insurance that a client has, is that a factor?
Valeen Hykes: It does, very much so. Which is why we have to be very particular with some of the cases that we take, because a lot of times we have some really good injuries come in and we may take on the case thinking, “Okay, well this person has a lot of damages, it’s going to be a high valued claim.” But then you turn around, and you look at the defendant’s insurance policy, and what type of coverage they carry, and you may have somebody with a fractured arm who’s required two surgeries or something like that, and maybe the policy limits on the defendants … Policy may only be 15,000, which is usually for two surgeries, definitely not enough for the surgeries of the medical bills, let alone anything in addition to that.
Cindy Speaker: Yeah. Basically you’re saying even if you have very severe injuries, which many people do, if they don’t have good insurance coverage, they may not recover what that claim is worth.
Valeen Hykes: That’s right, it really all depends on what type of coverage the person at fault carries. Your insurance policy can play a part as well though. When you’re looking at limited tort versus full tort options on an insurance policy, if you’re … Maybe you have some chiropractic treatment for a few months, or acupuncture, or something that’s really kind of a conservative treatment. If you don’t have the full tort selection on your auto policy, then you can’t recover those pain and suffering, or the non-economic damages, where somebody with full tort policy would be able to do that.
Cindy Speaker: Yeah, so full tort is important in Pennsylvania.
Valeen Hykes: Absolutely, very, very important.
Cindy Speaker: Okay, yeah. Are there any other factors that kind of affect the bottom line of your claim?
Valeen Hykes: Yes, I would say sometimes, and I come across this a couple of times where we have witnesses, but maybe it’s a witness that might be a little bit partial to one side, rather than the other. I think when you have somebody who comes to me and has a really good reason that they did what they did. Let’s say a pedestrian, “I crossed in this spot because it seemed like the perfect spot.” And everything that he told me sounds great, but then again you have … It’s basically the plaintiff versus the defendant, and what they’re saying. When you don’t have an impartial witness to kind of corroborate what they’re saying then I think that gets you … It’s helpful to have a witness, somebody who doesn’t know you in order to talk about that.
Cindy Speaker: Makes sense, sure. Yeah.
Valeen Hykes: Yeah. Let’s see, I guess the other thing would be permanent injuries, scarring. Any scarring of course is going to increase the value of a claim, especially if it’s facial scarring, or something that you’re going to see. Oddly that and then also disfigurement, those will increase the value of your claim as well. Other than that, I’m trying to think here. I made some notes for myself to help. Yeah, I think permanent injuries, of course. Like I said, disfigured and scarring, and then the pain and suffering. That’s a big thing with pain and suffering.
If you have that documented, like the emotional distress that we talked about before, the fear, and the anxiety, the inability to sleep. The more that, that’s documented, the more credible you are. It’s one thing to come out and say, “Okay, well I’m having problems sleeping, I can’t get into a car again, I’m too nervous to drive, I’m too nervous to be a passenger.” The more that, that’s documented in your medical records, the more helpful it is and more likely you are to recover for those types of things.
Cindy Speaker: Sure, yeah. That makes sense. In recapping, the medical treatment is extremely important, the length of treatment is extremely important. The type of insurance, the policy details, extremely important. I think what you’re also alerting us to is everything needs to be very clearly documented in one of those claims.
Valeen Hykes: Absolutely. Yes. Very much so. Even with the lost wages portion. We have so many people come in and say, “Oh, well I couldn’t work. I had a doctor’s appointment, or I had this, or I had that. This is the reason why.” The more that you have the doctors write down, the better. Sometimes even with lost wages, we have trouble getting those paid out if we don’t have that document that they’re out for the accident.
Cindy Speaker: Yeah, yeah. Well I know and what I want to say to the viewers today, and a lot of our viewers end up in replay we find. This is something where we think, we never think about these things until it’s too late. You’ve given us some things that really are proactive, in that we can begin to think about when you get your insurance policy, think about how you’re covered. Just think through these types of tips and strategies that you’ve given us today, because nobody ever thinks it’s going to happen to them, but it does.
Valeen Hykes: Exactly, exactly.
Cindy Speaker: It does.
Valeen Hykes: Yeah, I can’t stress enough with the full tort policy. Also even, I mean you get into an accident, and let’s say you seek emergency care, you have to go in the ambulance. I mean literally just that trip, that ride to the hospital, and whatever testing, initial testing they do can really wipe out the minimum 5,000 in medical coverage that most people have as well.
Cindy Speaker: Right.
Valeen Hykes: My recommendation would be to give that some consideration, and increasing that as well.
Cindy Speaker: Yeah, absolutely. I know that people ask you, “What is the value of my claim?” What I’m hoping is that you can take this piece, and give them a link. I know that you would also speak to them. When somebody asks you that, how do you answer them?
Valeen Hykes: Well I tell them, “I can’t tell you right now, I need some more information. But let me gather everything that I need, I can tell you the types of things that I’m going to be looking for.” A lot of times I get that question in our first phone consultation.
Cindy Speaker: I bet.
Valeen Hykes: That’s usually, my only response is, “Well I can tell you I can only take claims that I feel I can be helpful with.” It’s a difficult question. Once I have all the information, and I’ve gathered everything, then I can give them a more concrete response.
Cindy Speaker: Yeah, well and you did that today, and I thank you for that. I think you very clearly articulated the elements of a claim, the factors, the damages, the demand package, and you introduced us to some new terms, because we’re not all familiar with demand packages, and damages. I think you did well. Now Valeen, if somebody wants to reach you, how can they do that?
Valeen Hykes: Well they can call us at 1-800-518-4529.
Cindy Speaker: Very good. I know that your website is OConnorLaw.com.
Cindy Speaker: Well listen, thanks so much for being with us today Valeen, great job.
Valeen Hykes: Thanks Cindy.
Cindy Speaker: Appreciate the information.
Valeen Hykes: Ah, no problem. Have a good day.
Cindy Speaker: You too, and to those of you that are watching, if you have questions, comments, feel free to leave them right on this page and we’ll make sure that Valeen answers your questions. Thanks everyone for attending. We’ll talk to you again soon.