The VAST Claims Methodology provides a framework for valuing, assembling, settling and trying civil actions.
This article zeros in on the “V” in VAST – valuation – as applied to personal injury claims. How do lawyers value personal injury claims, such as motor vehicle accidents (MVA), slip and falls and medical malpractice claims?
Liability
- Liability – Admitted? Obvious? Disputed?
- Contributory Negligence – Is the plaintiff partly to blame?
- Causation – Did the incident cause the injury or are there other potential causes?
Damages
- Injuries – What are the physical and psychological injuries?
- General Damages – What are the general damages for pain and suffering and loss of enjoyment of life realistically worth?
- For MVA claims, will the threshold be met in terms of the injuries being serious, permanent and impairing an important function?
- For MVA claims, what impact will the deductible (approximate $40,00 deduction) have?
- Income loss – What does the plaintiff do, why can’t they work, what have they lost? Is this set off by any accident benefits and/or short term or long term disability insurance?
- Treatment – Is there a past and/or future care component? What is it realistically worth? Is this set off by any accident benefits and/or other medical insurance?
- OHIP – For non-MVAs, does OHIP have a subrogated interest? How much?
Financial
- Offers – What is the defence’s best offer? Plaintiff’s best offer? Are they proper rule 49 offers?
- Client Finances – Do they have cost insurance, if so how much? Do they have assets? Can they stomach the risks of trial?
- Retainer – Is the lawyer’s retainer based on a % of damages? What is the %? Or is there a greater of a % of damages or costs option??
- Disbursements – What amount of disbursements are there to date? What further disbursements are anticipated?
General
- Plaintiff – Are they likeable? Are they credible? This is important to Juries and Judges.
- Jury Trial? Will it be a Jury trial or a non-Jury (Judge alone) trial?
- Other – Is there anything else good or bad about the case worthy of comment?
Documents of Interest
- A copy of the pre-trial conference briefs is best, plus any further expert reports after the pre-trial conference.
- Or a copy of mediation briefs plus any further expert reports.
- Or a summary of each party’s position plus expert reports.
Court Dates
- When is the pre-trial conference?
- What are the trial dates? Fixed or trial sittings? Where is trial? In person or virtual?
Applying the VAST Claims Methodology
An experienced trial lawyer will generally consider all of the above items and in addition interview the plaintiff and key witnesses.
A seasoned trial lawyer will typically focus is on the issues of liability on any contested aspects (causation is almost always contested) and damages. For most personal injury cases, collection is not an issue in that there is generally, but not always an insurance policy (although policy limits must be considered).
The financial aspects such as offers and costs may increase the amount of funds at issue. The equities of the case are important: who is a Jury and/or Judge more likely to side with?
If you would like to have a personal injury claim valued by an experienced trial lawyer, please click here to consult trial counsel.
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