From a legal standpoint, every personal injury case has two main issues: (1) liability; and (2) damages. Your attorney will be evaluating both of these issues at all phases of representation, starting from the moment you have your initial meeting.
The “liability” aspect of the case is concerned with, “who is at fault?” It is answering the necessary question of who caused the incident. In this part of the evaluation, you must consider whether it is just one person (or business) who is at fault, or are there others, including yourself, that a jury might conclude to be responsible for causing the incident? As a modified comparative fault state, Indiana allows a jury to apportion percentages of fault to all of the parties and nonparties named in the action. The recovery against any defendant you have sued is based on the percentage fault allocated to that defendant. If a plaintiff in Indiana is deemed to be more than 50% at fault, then all recovery is precluded. If your fault is 50% or less, then your damages award will be reduced by the amount of fault you had in contributing to the incident causing your injuries. For instance, if a jury determined your total damages were $60,000, but then concluded that you were 25% at fault, the total award to you would be reduced by 1/4, to $45,000.
The “damages” aspect of a case is a matter of measuring what was taken from the injury victim and measuring it in dollars.* It requires us to determine, “how much is required to make things right?” “Damages” has several components. Some of them are pretty easy to determine, while others involve some persuasion and thoughtful explanation to determine. “Special” damages (also called pecuniary, or economic damages) are those damages that can be determined by some independent measure. The clearest examples of these are medical expenses and lost income. If you incurred $1,000 for treatment at the emergency room and another $5,000 in treatment in follow-up visits, your total medical special damages would be $6,000. Similarly, if you make $15/hour, 8 hours a day, 40 hours a week, and you missed two full weeks of work, your lost wages special damages would be $ ($15 X 40hrs X 2weeks).
In addition to these examples of past damages, you may have similar damages that have some objective measure, but will be experienced in the future. Clearly, the costs of future medical and related treatment fall into this category. From an employment standpoint, so would lost future wages for missing work from medical visits, post-surgical recovery, and the like. There is another category that is more difficult to grasp-impaired earning capacity. Sometimes, a person who has a particular level of vocational skill and earning power is permanently injured and will forever suffer from lower income as a result of the injuries. Measuring this kind of loss in today’s dollars is somewhat complex and requires expert testimony. Nonetheless, it is a very real component of damages that deserves compensation.
Finally, we have the concept of “pain and suffering” damages, (also called “general” or “non-economic” damages). Many in the general public have been conditioned to think there is something wrong with awarding punitive damages. That is due in no small part to a vigorous media campaign funded by powerful groups to misinform the general public about the impact of the laws in this area. Attorneys representing injured parties must actively work to overcome the resulting bias shared by members of the public who eventually are called to serve on the jury.
* (“Punitive” damages are a possible form of damages also allowed under the law in special circumstances. They are not discussed in this article).