It stands to reason that the most important factor affecting the amount of damages that 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 which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.
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 LeBell, Dobroski, Morgan & Meylink, LLP, 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.
If a plaintiff is found partially at fault for an accident, he or she has not lost his or her case altogether. In Wisconsin, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly. Wis. Stat § 895.045(1). The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, as long as the plaintiff is found to be less than 51% at 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.
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.
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 a 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.
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.
As a general rule, Wisconsin holds two or more defendants who are responsible for causing an injury jointly and severally liable. Wis. Stat. § 895.045. This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself. For example, if defendants A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 10% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two. However, A and B have what is known as a right to contribution. Mulder v. Acme-Cleveland Corp., 95 Wis.2d 173, 178, 290 N.W.2d 276 (Wis. 1980). This means that if the plaintiff recovers the full 80% from A, A can then sue B for B's share of the 80%, or in this case 40%.