Personal injury damages are the money awarded to an injured person to cover the costs and losses they suffered due to someone else’s negligence or wrongful actions. In other words, recovering damages means getting money to pay for expenses and losses from the injury to help the injured person get their life back on track and hold the responsible party accountable. (“Damages” is also the term used to reference the injuries and losses suffered by the person who was injured as a result of another’s negligence).
What Types of Damages Can Be Recovered?
Most personal injury damages are classified as “compensatory,” meaning they compensate for all the injury claimant’s losses. There is no cap on damages in Washington personal injury cases; generally, the amount of damages recovered varies based on the value of the claim and the ability of the personal injury attorney to negotiate a full and fair settlement. Common personal injury damages include compensation for both economic and non-economic damages. Economic damages are damages with a monetary value that can be calculated, whereas non-economic damages acknowledge the non-monetary losses that an accident victim experiences after an accident.
Economic Damages:
- Medical treatment
- Physical medicine and medical devices
- Rehabilitation/physical therapy
- Lost wages and earning capacity
- Damage to or loss of use of property that occurred as a result of the injury
- Funeral expenses (wrongful death cases)
Non-Economic Damages:
- Emotional and mental distress
- Pain and suffering
- Loss of enjoyment of life
- Disability
- Disfigurement
- Loss of consortium (loss of income, companionship, child care, etc. for the claimant’s spouse)
Punitive Damages:
Punitive damages, sometimes called exemplary damages, are awarded by a court as punishment to the wrongdoer in rare cases. This type of damage is meant to serve as a deterrent to others from engaging in the same wrongful actions. Punitive damages are sometimes awarded in special cases when someone commits an act that is particularly egregious, malicious, evil, violent, or fraudulent.
In Washington State, punitive damages are not typically awarded; however, there are numerous statutory exceptions where punitive damages may be allowed.
How are Personal Injury Damages Recovered?
Personal injury damages are recovered through a negotiated settlement or jury award.
Settlements
Personal injury settlements are typically reached through a process of negotiation between the injured party (plaintiff) and the party responsible for the injury (defendant), often involving their respective insurance companies and legal representatives. For various reasons, the vast majority of personal injury cases are settled out of court, with only four to five percent going on to trial.
A settlement may be negotiated by the injured person or by their personal injury attorney; though a personal injury attorney is typically able to recover a much higher settlement than an individual could recover on their own.
After the initial consultation and representation is established, the attorney conducts a thorough investigation of the incident, gathering evidence such as medical records, police reports, witness statements, and any other relevant documentation. The extent of the injuries and the impact they have had on the plaintiff’s life, including medical costs, lost wages, and pain and suffering, are assessed and documented in order to establish a fair settlement value.
The plaintiff’s attorney then sends a demand letter to the defendant (or the defendant’s insurance company), outlining the facts of the case, the injuries sustained, and the compensation being sought, which serves as a starting point for negotiations.
Next, the defendant or their insurance company reviews the demand letter and may respond with a counteroffer. Negotiations continue back and forth, with both parties making offers and counteroffers. If both parties agree on a settlement amount, a settlement agreement is drafted and the agreement is signed by both parties.
Jury Verdicts
If a fair settlement cannot be reached through negotiation, the plaintiff may file a lawsuit. The case then proceeds to the pre-trial phase, which includes discovery, depositions, and potentially further negotiations. The injury lawyer will represent their client through each of these phases. Many cases still settle before reaching trial, but if not, the outcome will be decided by a judge or jury.
The jury calculates the personal injury award by assigning an appropriate dollar amount to several areas of loss or suffering based on precedent and instructions provided by the judge.
Jury instructions vs. emotional appeal
Judges provide lengthy jury instructions, generally at the end of the trial. Instructions are always given orally but many judges now also provide a copy of the instructions in writing. These instructions are in depth, and cover everything from how jurors should deliberate to how they should analyze the witnesses and the evidence, and then explain the law of the case in detail. Judges make it clear that the jury must reach a decision based strictly on the law even if they don’t like or agree with the law; they must not be swayed by emotion. When appellate courts review jury verdicts, they do so under the assumption that jurors made their decision by applying the law as the judge explained it to them, rather than using their emotions.
In a personal injury trial, the judge will explain the law of negligence in general, and then offer a specific explanation of the laws that apply to that trial. If, for example, the trial is about an injury that happened on the water, the judge will explain the laws for maritime accidents.
How emotional appeal is created
Despite instructions to follow the law and not use emotions, it is inevitable that jurors will be influenced by their emotions; at least a little. Plaintiffs’ lawyers understand human nature and recognize that if their case contains a strong emotional appeal to the jury, they have a better chance of winning.
The following types of evidence are known to create an emotional appeal to a jury:
- A friendly, pleasant plaintiff with a good family
- Pictures of the injury (without being overly graphic or gratuitous)
- A serious, permanent injury (juries typically award more money for a devastating permanent injury such as quadriplegia than for a wrongful death case)
- An injury to a child
- Proof that the defendant or the defendant’s witnesses lied about how the accident happened, or that they tried to cover up how their negligence caused the injury
Defense attorneys prefer to stay away from trying cases with strong emotional appeals because they know that juries are usually influenced by these appeals and will often give large awards.
How do jurors quantify pain and suffering?
Medical bills and lost earnings are calculated fairly easily but other damages can be more difficult to quantify. Putting a number on someone’s pain and suffering is often one of the more difficult tasks facing a jury, especially because judges don’t usually go into much detail about how the jury should determine damages for pain and suffering. There are two ways that pain and suffering are commonly quantified:
The pain multiplier method. In the pain multiplier method, juries calculate the value of measurable financial losses, then multiply that value by a number between 1.5 and 5 based on the severity of the injuries to arrive at a dollar value for pain and suffering. For example, if medical bills totaled $40,000 and the pain multiplier is set to 1.5, the pain and suffering portion of the settlement would equal $60,000.
The per diem method. In the per diem method, juries calculate pain and suffering by estimating the number of days the plaintiff has suffered pain and paying a set rate for each day. The daily rate is often equal to a day’s wages. So, if the injured party was in pain for 190 days and their daily wage before the accident was $300, their total pain and suffering would be $57,000.
Note: There are some situations when a trial judge can overturn a decision on damages made by a jury.
Disclaimer: State and federal laws in the United States change on a regular basis. Any information provided in this guide is meant solely for informational purposes and should not take the place of the advice of a lawyer. Only a qualified attorney can assess the merits of your case and provide an effective plan for counsel.
Seek the Help of a Washington State Personal Injury Lawyer
If you or a loved one is dealing with an accident or injury because of the negligence of another, you have enough on your plate. Let an experienced accident attorney fight for the full compensation that you deserve. It is not uncommon to receive a settlement from the insurance company that is five to ten times larger with the help of a personal injury lawyer. Call the competent Bellingham personal injury attorneys at Tario & Associates, P.S. today for a FREE consultation! We have been representing residents of Whatcom County, Skagit County, and surrounding areas since 1979. You will pay nothing up front and no attorney fees at all unless we recover damages for you!