Presenting a live 90-minute webinar with interactive Q&A Auto Injury Claim Recovery: Maximizing Pain and Suffering, Loss of Future Earning Capacity Damages Leveraging Calculation Methodologies, Medical Documentation and Expert Testimony to Increase Damages Award THURSDAY, AUGUST 18, 2016 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Steven C. Laird, The Law Offices of Steven C. Laird, Ft. Worth, Texas R. Mark Taneyhill, Attorney, Schwartz & Schwartz, Wilmington, Del. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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Auto Injury Claim Recovery: Maximizing Pain and Suffering, Loss of Future Earning Capacity Damages Leveraging Calculation Methodologies, Medical Documentation and Expert Testimony to Increase Damages Award 5
Presenters Steven C. Laird The Law Offices of Steven C. Laird, Ft. Worth, TX laird@texlawyers.com R. Mark Taneyhill Schwartz & Schwartz, Wilmington, DE mark.taneyhill@schwartzandschwartz.com 6
I. Maximizing Pain and Suffering Damages The amount the Insurance Company will pay or the Jury will award
A. Calculation Methodolgies i. Multipliers- Add up the boardable or special damages and multiple that number by 3 (or 2 or 5). Example: $10,000 in boardable medical expenses plus $5,000 in lost wages = $15,000 X 3 $45,000 8
A. Calculation Methodolgies ii. Per Diem Method The basic of the per diem argument is to break down the injury into a small fraction of time and apply a thing of value to the time. Example: Client is paid $9.00 an hour. She was out of work for three weeks, and during that time she was in pain 24 hours a day. She should be compensated at $9 X 24 hours X 21 days = $4,536.00 9
A. Calculation Methodolgies iii. Colossus Software Software program created by CSC. According to their website: www.csc.com It is the insurance industry s leading expert system for assisting adjusters in the evaluation of bodily injury claims. Colossus provides adjusters access to your company s claim data within a defined business process framework for evaluating injuries, treatment, resolution, impairment and general damages settlements. Colossus helps adjusters reduce variance in payouts on similar bodily injury claims. 10
B. Factors Influencing Damages Start with the end: Jury Instructions
B. Factors Influencing Damages The purpose of a damages award in a civil lawsuit is a just and reasonable compensation for the harm or injury done. While pain and suffering are proper elements on which to determine monetary damages, the damages for pain and suffering must be fair and reasonably determined and may not be determined by a fanciful or sentimental standard. They must be determined from a conclusion about how long the suffering lasted, the degree of suffering, and the nature of the injury causing the suffering. In evaluating pain and suffering, you may consider its mental as well as its physical consequences. You may also consider such things as discomfort, anxiety, grief, or other mental or emotional distress that may accompany any deprivation of usual pleasurable activities and enjoyments. 12
C. Documentation Medical Records Intake Questionnaires at Doctors, Physical Therapy and Chiropractors offices. Types of treatments received (chiro to surgery) Length of treatment Has the injury resolved (not MMI) 13
C. Documentation Lost Wages Job Description Length of out of work status from medical providers 14
D. Expert Witnesses Most auto injury claims are only going to have one medical expert witness on each side. Plaintiff s treating physician can testify regarding the specific medical procedures performed on Plaintiff i.e. injections, surgery. Defendant s medical witness can also be used to corroborate the process used for each procedure, and the circumstances when a patient undergoes the procedures. 15
E. Trial Strategies Depositions Plaintiff s deposition is an opportunity to provide the insurance company an understanding of the pain and suffering damages in the case. 16
E. Trial Strategies Lay or Damage Witnesses Double and triple check that your lay witnesses have been identified during discovery. These are witnesses that spend significant periods of time with Plaintiff i.e. spouse, family member, friend. They are in the position to provide testimony regarding the type of suffering experienced by Plaintiff including specific examples of compensable categories from the jury instruction. Also before and after testimony. 17
E. Trial Strategies Openings and Closing Arguments Tell the jury what you are asking for. Make sure the jurors know at the end of your opening that pain and suffering damages are an important if not the most important reason that you are standing before them. Effective closing argument is honest, and injects passion into the jury regarding the injuries and suffering experienced by Plaintiff. 18
I. Maximizing Pain and Suffering Damages Conclusion: All of our cases involve an individual who experienced some level of pain and suffering due to the negligent (or reckless) conduct of another. Although it is difficult to spend the necessary time to discover the individualized damages suffered, each of our clients deserve to receive the maximum allowable recovery under the law for the harms endured. 19
Understanding Future Loss of Earning Capacity Steven C. Laird Fort Worth, Texas www.texlawyers.com 20
Should I claim future damages? 21
What is a forensic economist? 22
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Life Expectancy 25
Work Life Expectancy 26
Growth Rate 27
Inflation 28
Education 29
Don t forget about the loss of benefits. 30
The economist giveth, and the economist taketh away. 31
Discount Rate 32
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Taxes 34
Consumption Rate 35
Beware of the consumption rate trap aka The Wealthy Widow 36
Household Services 37
Laundry Yard work Cleaning the house Fixing things 38
Household Services Calculated 39
What does a future loss of earning capacity look like? 40
Assume the following: 52 year old male Death or total impairment Married Retired at age 63 Unionized Mechanic making approximately $55,000 per year. 41
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