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Personal Injury Mediation: The Importance of Accurate Special Damage Information: Part II: Loss of Earnings/Capacity

February 28, 2017

Economic damages or “special” damages consist of some of the easiest-proven and most understandable evidence for any jury’s consideration in any personal injury case-verdict.  Thus, accuracy and available proof is critical for negotiation and mediation.

Further, most civil trial lawyers on both sides of the dispute, believe there is a direct, positive relationship between the amount of these “tangible” damages and the essentially unlimited, but more difficult to prove, ‘intangible’ damages, i.e,  pain, suffering, loss of the ability to enjoy life, etc.,  that are both part of every jury’s consideration in reaching their total verdict in every personal injury case.

In Part I, we discussed the mediation/negotiation importance of complete and accurate accounting for medical expenses (and included briefly their related topic of legal liens regarding such expenses, even if only temporarily paid by other sources), See, Personal Injury Mediation:  The Importance of Accurate Special Damage Information:  Medical Expense and Liens,  December 19, 2016.

This Part II,  now seeks to discuss the equal importance of accurate accounting and mediation/negotiation use of another important tangible damage for any injured claimant:   loss of income, past and future

Again, as any juror can easily personally relate to anyone’s loss of income or monies due to a personal injury, too often this critical, but easy, element of damage is either over-looked, under-estimated or under-utilized.

And, it should not be.

The insurance industry, who typically is the ONLY entity negotiating a total personal injury claim, puts far greater weight on any tangible damages in their far-ranging formulas used to evaluate the potential settlement value of personal injury claims than any claimant’s counsel!   i.e., Have you ever heard of the “three times specials” settlement evaluation system?

Ironically, most injured parties (and most juries) consider the immediate loss of monies as their single greatest fear. And, if fully considered,  like medical expense, proof of loss of income due to any accident is relatively easy AND ALWAYS available (at least for discussion) in some amount in every injury case!

For the hourly employed, simply proving the person’s PAST loss of time and their hourly rate at the time of loss, can be successfully introduced into evidence by the injured parties own testimony, alone.  (Others may wish to consider supplemental/alternative evidence in support or as a better strategy, but that is not the point of this article.)

For others, salaried, self-employed, or even sales/incentive paid, once the hourly equivalent rate is established by simple extrapolation of earnings comparisons, the PAST earnings lost can also be quite easily computed for any jury’s consideration.  (These types of earnings, also, open collateral trial issues to be later considered, but for mediation simply are too significant to ignore.)

However, the first step to take in being able to accurately use this understandable loss is for the injured party to literally keep a log/chart of it!  Since the issue is usually not the central theme of most counsel’s  attention and most clients are focused on overcoming their injuries, usually little thought is given to being able to accurately explain each hour, day or week of loss.

Keeping a log and later being able to demonstrate on a critical calendar jury-exhibit, a calendar of events on how the time was lost over the likely years between an injury and a mediation (or even more importantly, a trial is critical. (Also a great exhibit to use for the intangible damage of loss of enjoyment to life!)

Think of it:  It is not only the first day in the emergency room or at home for the day where anyone’s loss of time (and their loss of enjoyment of life!) occurs, but rather almost daily until their case is resolved.

And in almost every activity now required that would not have been “but for” the unwanted accident and personal injury.

Every return to any hospital, every doctor’s appointment, every therapy visit, every home exercise, every day ‘when you just couldn’t go to work”, needs to be recorded!  (And, additionally recording appointment efforts are critical in showing why sometimes the earliest next appointment is not always the injured party’s choice.  i.e. Gaps in treatment?)

In short, it is these minor details timely recorded as they actualy occur that later is easily recounted from a demonstrative chart-exhibit that make more believable the entire living experience of any injured party.

And, it can also become invaluable in your own potential verdict evaluation;  See, “Mediation Negotiation:  One Reliable Method to Evaluate Personal Injury Damages”, December 13, 2013

What else is often missed?

How many times have you heard:  “He/She doesn’t have any earnings loss…”

Even more forgotten (maybe misunderstood or underappreciated?), particularly if an injured party is “unemployed” at the time of injury, OR, a student, a housewife OR is partially or even fully compensated by other sources, i.e. workers compensation, accumulated leave or just a friendly employer, is the always powerful, loss of the ability to earn.  And, note: this damage is just as important for the past losses as the future!

And, every injured person has an earnings loss; even it may only be EASILY demonstrated by its loss of the ability to have their time loss measured at the minimum wage!

Florida law recognizes that time, “Earnings/Working Time”, has a value whether an individual is paid for their time by an hourly rate, a salary, their productivity or by any other agreed measure of the value on any worker’s time.  See, 501.2, c., Florida Standard Jury Instructions (2017).

But, by far the most widely missed concept is, “Loss of Ability to Earn”, that even if someone is not working at the time, by choice (student/housewife), by necessity (i.e. child-care), or even retirement, that person’s time still has value that can be and at least should be a topic of discussion and/or consideration.

Can anyone honestly “forget” the value of a mother’s time or a housewife’s services or even the retired neighbor who volunteers a valuable service that otherwise would require a monetary billing.  What replaces the services of those persons while they recover?  Would any retired member of any jury believe their time loss has no value?  If so, there are a multitude of articles and even experts who can clearly submit almost irrefutable evidence on the subject.

And, the same is even more true for any Future loss with the proper supporting personal, medical evidence and likely expert support and testimony.  The future can be a long time; and even a minimum injury will always become more impactful with time.

Again, if properly documented and supported, any future loss, with its impact being felt over many years in the future, is simply too much to under-appreciate, much less under-use…

for mediation!  (Remember the point of these articles.)

The beauty of mediation is that it is only one tool in the litigator’ bag.  And, mediation is a great place to test the ‘lawyering” of your case for any trial that mediation does not permit you to avoid.

When preparing for any ultimate trial, the better lawyers give much thought not only to what evidence they have, but whether of not to use it.

At mediation, you have the best of both worlds; if the accurate portrayal of your damage element is seriously (and justifiably?) questioned, what a great “practice” for your final show, if it ever becomes necessary.

But, if you don’t prepare reliable mediation evidence, in advance, to use for negotiation and in mediation, you will never even have the chance to use/test this important tool.  And, it begins simply with accuracy and documentation.

Give it a try.  There is little to lose and much to gain from accurate special damage information that is so useful in so many ways.

Dan, from Kissimmee, Florida

 

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