Factors Affecting Damages Awards

Nature of injury
Degree of defendant's liability
Contributory negligence
Plaintiff's and Defendant's credibility
Plaintiff's age
Witness testimony

Nature of injury

It stands to reason that the most important factor that will affect the amount of damages 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 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 that require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries that heal without the need for medical intervention.

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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 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 The Law Offices of Lennon C. Wright, 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.

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Contributory negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or her case altogether. In Texas, contributory negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's damages award accordingly. The amount of plaintiff's damages will be reduced in direct proportion to the plaintiff's percentage of fault.

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 there is more than one defendant in a lawsuit, they can can be held jointly and severally liable for intentional torts. Under joint and severable liability, a court can assess 100% of a victim's damages against a party that was a nominal 1% at fault. That party would then have to sue the other defendants for the other 99% of damages paid. However, there are statutory limitations precluding joint and several liability, on actions for negligence, products liability grounded in negligence, strict tort liability, and strict products liability. If you are found more than 50% responsible for your injuries, you cannot recover damages. Tex. Civ. Prac. & Rem. Code § 33.001.

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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.

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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.

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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.