Los Angeles Personal Injury Lawyer Blog

California distinguishes between two types of damages in negligence cases. There is Pain & Suffering Damage, which was discussed in an earlier post, referred to in California Jury Instructions as Non-Economic Damages. There is also another type of damage referred to in the Jury Instructions as Economic Damages. Economic damages can constitute an important part of overall damages. Economic damages includes lost wages, lost earning capacity, future loss of earnings, medical expenses, and other expenses incurred as a direct result of suffering injury caused by the negligence of another.

If you have been injured by the negligence of another, it is wise to keep a record of all economic damages incurred as a result of the injury. Depending on how the expenses are paid for, the record should consist of cancelled checks, credit card statements, invoices for services, receipts for medicine, and itemized billing from healthcare providers including doctors, nurses, rehabilitation therapists, and vocational rehabilitation counselors. Other expenses could include rental car, transportation, household help, medical equipment, deductibles paid, and possibly late fees on outstanding obligations because of loss of income.

Good record keeping means your attorney can properly and accurately present your economic damages to either an insurance claims adjuster or a trier of fact at time of mediation, arbitration or trial. Making claims for economic damages with supporting documentation is fraught with peril. If you are out-of-work because of the injury, the economic loss can be calculated by extrapolating what you were earning before the injury to determining wage loss. Sometimes that wage loss is established by an employer's verification. In cases where the injured person is self-employed, the proof of wage loss becomes more challenging, but still can be accomplished.

To ensure you have the maximum potential to recover your economic damages, keep your records organized from the beginning. If you failed to do that and you are still involved in pursuing damages for an injury suffered as a result of another's negligence, start reconstructing the record as soon as possible. Don't wait until the adversary demands production of the documents. Indeed, your attorney, assuming you have engaged legal counsel, should be instructing you to keep your economic records to document your loss for either settlement or trial.

By keeping a contemporaneous record of economic damages, you will maximize your potential recovery of this aspect of your loss. So, what are you waiting for? Get to work and start organizing your records.

The phrase "Pain and Suffering" is used in California to describe compensable damages for physical injury or emotional distress that results from a personal injury. Almost four decades ago, the California Supreme Court addressed this issue stating: "In general, courts have not attempted to draw distinctions between the elements of "pain" on the one hand, and "suffering" on the other; rather, the unitary concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal." Capelouto v. Kaiser Found. Hosps. (1972) 7 Cal. 3d 889, 892-893.

A person injured by the negligent or wrongful conduct of another is entitled to recover "pain and suffering" damages. Injured persons commonly suffer great interruption in their lives. Small details and mundane routines become painful and difficult. Sleepless nights, stiffness, pain, fear of undergoing medical treatment or worrying that one might fully recover from a physical or emotional harm are common thoughts and experiences. Other injured people become nervous and worry about their jobs, home life, and overall health. When a person is seriously injured in a personal injury action, the person's mind often races with a flood of fears, worries. Embarrassment and indignity frequently accompany being disabled or disfigured from a personal injury accident.

These experiences are so common that they are hardly questioned as authentic symptoms of an accident. But the severity, frequency, and length of time that these symptoms and experiences last are hard fought over in litigation. Unfortunately, the injured person, pre-occupied with the sudden onset of the accident, the pain, and interference in the quality of his or her life, fails to record what is happening in his or her life. Compensable forms of emotional stress need to be documented if a lawsuit is contemplated or underway.

The problem that many injured people face is trying to reconstruct all their thoughts that plagued them as they suffered living day by day after being injured. Whether it is presenting information to an insurance claims adjuster, a mediator, an arbitrator or to a jury or a judge at time of trial, comprehensive and accurate rendition of the emotional distress is essential to maximizing recovery. One easy and simple solution is to keep a daily diary of how you are doing, your thoughts, and your emotions, your concerns about your injury, recovery, and financial affairs during recovery.

This diary should be marked 'FOR MY ATTORNEY" even if you don't yet have an attorney. By labeling the daily diary "FOR MY ATTORNEY" that may preserve the attorney-client privilege and maintain the confidentiality of your thought processes. Naturally, during discovery, settlement or trial, these elements of "pain and suffering" will have to be fully disclosed and explored. By having a contemporaneous record, you will be in much better position to explain your "pain and suffering " and maximize your personal injury recovery.

People injured as the result of the negligence of another are entitled to recover their damages. Damages refer to monetary compensation for the loss or injury a person has suffered. There are different types of damages. In fact, the famous Black's Law Dictionary has three pages just covering the definition of various types of damages. Obviously, damages is a big subject. So, by necessity this post is limited in scope. This post is a brief discussion of non-economic damages or what is commonly referred to as pain and suffering.

California requires juries to be instructed in the law before deciding a case. The Judicial Council of California has developed Jury Instructions which are used throughout California in negligence case. These instructions are designed to explain the law on how to determine how much money a person injured by the negligence of another is entitled to. The Jury Instructions are referred to as CACI, an acronym for California Civil Jury Instructions.

CACI 3905A explains what is included in physical pain, mental suffering, and emotional distress physical pain and what must be established by a preponderance of the evidence to recover such damages. Past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety humiliation and emotional distress are all included. There is no fixed amount for these types of damages. Jurors must use their judgment to decide what is reasonable.

There is art and skill involved in presenting a believable case of damages. It must be real and sometimes little things make a big difference. If you have been injured by the negligence of another, keep a diary detailing how you are feeling, your daily troubles related to the injury, and your aches and pains. When one is suffering, one is focused on the pain and misery. However, as recovery occurs, some of that pain and suffering fades from one's consciousness. Do yourself a favor, document your journey.

For those unfortunate victims who have suffered catastrophic injuries, obviously much less is required for people to understand the suffering. But, even that story must be presented with sensitivity and compassion so the jury will understand. Not understand academically, but understand as human beings deciding an important issue for an innocent victim.

Every injured person wants to recover damages from the person responsible for causing the injuries. That is human nature. And, the law provides rules and procedures for a person injured by the negligence or intentional act of another to prosecute an action for damages. And, invariably, the insured person believes wholeheartedly that he or she will prevail. This unabashed and over-confident position is sometimes encouraged by personal injury attorneys.

Don't retain a personal injury attorney that tells you what you want to hear. Hire an experienced personal injury lawyer who knows what he or she is doing and will tell you the truth and even argue with you to help you see the harsh realities of personal injury litigation. Sticking to one's own opinions and ignoring the advice and counsel of experienced professionals, is a big mistake.

If you are going to proceed with a personal injury lawsuit, ask your attorney to explain the strengths and weakness of your case. Also, ask what happens if you lose your case. Even if you think that could never happen, ask anyway. There are a number of significant legal ramifications of losing a case. For example, California Code of Civil Procedure mandates that the losing party pay the prevailing party certain costs such as filling fees, service of process fees, witness fees, jury fees, court reporter fees, and certain expenses incurred in trial.

At the beginning of a case, people don't want to talk about what happens if the case is lost - it is too depressing. And, unfortunately the injured person may misjudge an attorney who wants to inform his or her client on this aspect of a personal injury case, so attorneys often skip that when the attorney-client relationship is established.

Be informed and understand what you are getting yourself into at the beginning. You want to know the good- how much you might recover. You want to know the bad - how much money you might have to put out, how long it will take, and even if your case settles, the low end of what you might recover. And you should also want to know the ugly - what happens if you lose. Otherwise you may look like this -

Don't wait to to learn about the ugly until you are in the hall of the courtroom waiting for the jury to return a verdict. Waiting until then may prove to be a horrible experience.

Injured persons almost always believe their case is worth more than the likely recovery. There are a number of reasons why this is so. First and foremost, when a person has sustained a personal injury, especially an injury that is painful and takes time to heal, the person suffers emotionally and physically. And, that suffering is commonly on a daily basis. Also, the person may be upset and angry that someone else's negligence has substantially impacted the quality of their life.

So the value of the personal injury claim to the injured person is often inflated because it is not related to typical settlements or judgments in similar cases. Injured persons often seek validation of their own opinion of the value of their cases and there are attorneys willing to adopt what may be unrealistic expectations of the client to get the client "signed up". But, having realistic expectations will save a lot of grief and aggravation.

Evaluating the likely recovery in a personal injury action depends on many factors including the nature and extent of the personal injury, where the case would be tried, the strength of liability, credibility of witnesses, availability of evidence, expert opinions, if necessary, and the judge to whom a case is assigned. Don't listen to your friends to determine the value of your case. Consult with a personal injury attorney who knows the local courts, is familiar with the value of similar types of cases, and would be willing to take your case to trial if necessary.

An attorney who is willing to make a commitment to work on your case on a contingency fee basis is much more likely to have realistic expectations of the value of your case than a family member or friend who happened to read about a personal injury recovery in a magazine or newspaper. Moreover, establishing realistic expectations of the value of one's personal injury case also helps avoid mistakes in taking a case to trial that should settle.

Insist that your personal injury lawyer candidly explain the value of your case and the risks and advantages of going to trial. Be an informed client and actively participate in your case and litigation strategy. This will help manage your expectations. In the long run, you will be happier and more satisfied with the result.