If you are injured due to someone else's culpable conduct, whether an act or an omission, you are entitled to compensation under tort law. In many cases, the defendant will be represented by an insurance company. In most cases, the defendant will try to settle the case without going to court to avoid the time and expense of litigation. However, any amount the defendant initially offers you is likely to be less than the amount you are entitled to. Consequently, you need to know how to respond with an appropriate counteroffer.
- Skill level:
- Moderately Challenging
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Calculate your medical expenses paid and incurred to date. Include treatment, medication and transportation to hospitals and clinics.
Estimate your future medical expenses with the help of your health care service provider. Obtain a written statement if possible.
Calculate your indirect economic damages related to your injury. This could include anything from lost wages during hospitalisation to child care expenses.
Determine the amount of your general damages. General damages are damages that are intangible or hard to quantify, such as pain and suffering, loss of a career and loss of sexual function. This amount should be from 100 to 300 per cent of the total damages you calculated for steps 1, 2 and 3 above. It may be more in cases of extreme hardship.
Add all of your damages to come up with a preliminary counteroffer. Research local court records to find the amounts of recent damage awards for injuries similar to yours. Adjust your counteroffer upward or downward based on this information. Take into account the possibility that the defendant may be willing to pay a higher amount just to stay out of court, and leave yourself some room to bargain down later.
Create a formal written counteroffer supported by as much documentation as you can obtain, such as medical and billing records. Sign it and deliver it to the defendant by registered mail. Keep a copy for your personal records.
Tips and warnings
- You may be able to find a personal injury attorney who will represent you on a contingency basis. This means that if you lose your case, you pay nothing, but if you win, your attorney is entitled to an agreed percentage of the value of your settlement (typically 30 to 40 per cent.)
- If your insurance company is paying some of your medical bills, it will be entitled to a portion of your settlement.
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