"How Strong Is the Evidence that the Other Side Was at Fault?"

Determining the Potential Value of Your Claim: Question 2

Just because you are injured does not mean that you are entitled to compensation. If your case goes to court, the first question the jury is going to be asked is whether the defendant was at fault. In other words, before you can recover one penny, you must be able to convince a jury that the other side caused your injuries through carelessness or negligence. Obviously, this is a critical factor in deciding what your case is worth.

So what happens if it’s not very clear what really happened, or what if it appears that both sides were at fault? The lawyers and insurance adjusters will factor this risk into their valuation of the case and will reduce the settlement offer. In contrast, if it is clear that the other side was at fault, then the case will be worth more. For example, if you are the victim of a rear-end collision, then your chances of proving that the guy who rear-ended you is at fault are pretty good. You might have a 90% chance of proving fault in a rear-end case because most everyone on a jury will understand that the person driving from behind is required to maintain enough distance between vehicles to stop even if the person in front slams on their brakes for some reason. However, what happens if there are no independent witnesses and you end up with a “he said” “she said” situation? In that case, the lawyers and insurance adjusters create a range of likely outcomes and then they value the case accordingly.  The lower your chances of proving fault, the lower the settlement offer from the insurance company.

Here Are Two Examples to Help Illustrate This Point:

Example #1 – The Case Where You Don’t Know Ahead of Time Who the Jury Is Going to Fault.

Jose and Don crash in the middle of an intersection. Someone had a red light, but Jose and Don are both adamant that they were the one with the green light. The police officer couldn’t determine who was telling the truth and there were no witnesses, so the officer did not fault anyone on the crash report. The lawyers and the insurance adjuster both believe that anything could happen at the courthouse and figure that each side has a 50-50 chance of winning. Jose is injured and has medical bills and lost wages that would support a $20,000 verdict if Jose successfully persuades the jury that he had the green light. Prior to trial, the insurance adjuster offered only $10,000 to settle the case. When Jose protested that his case was worth twice that, the adjuster said: “Perhaps, but I have a 50% chance of paying you nothing, so if you want to get the full value of your case, you have to roll the dice and win at trial. My pre-trial settlement offer is $10,000.”

Example #2 – The Case Where Both People Are at Fault.

Bill and Susan are in an accident where Susan pulled out of an intersection and T-boned Bill. Obviously, Susan should have seen Bill coming and should not have pulled out. However, Bill was speeding, which partially explains why Susan did not see him. Nobody knows for sure what a jury would do with this case, but the lawyers and the insurance adjuster assume that typical jury might find Susan 70% at fault and Bill 30% at fault. Bill’s injuries are quite serious and would support a jury award $100,000. Because the insurance adjuster has factored Bill’s fault into the accident, he only offers $70,000 to account for Bill’s 30% fault.

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