"Best Practices for Evaluating Damages in Third-Party Liability Claims"
“Properly evaluating damages, both pre-suit and during the pendency of litigation, is crucial to having a clear vision and plan for investigating alleged damages and making key decisions regarding whether to attempt early resolution of a case or mount a vigorous defense,” Eskridge and Chartash said.
Among the factors to weigh when attempting to evaluate the monetary damages in a claim are:
- Determine whether the incident occurred in a comparative negligence or contributory-negligence jurisdiction and, if the former, consider the comparative negligence model used by the state.
- Consider factors about the jurisdiction where the incident occurred, where the defendant resides and/or where a corporate defendant is located, such as whether it is conservative or liberal and the impact on size of wards typically issued.
- Review the facts of the incident and consider communications received from the injured party (e.g. recorded statements, demand letters and medical records) to get a sense of the types of claims that may be made.
- Pre-suit, confirm who has the burden of proof and what might be necessary to meet that burden.
- Understand how the state calculates lost wages to assess what those claims may be.
- Analyze potential punitive damages that may arise and whether the state has statutory caps or qualifiers for these damages.
- Finally, consider how the state’s laws impact a plaintiff’s ability to recover attorneys’ fees.
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