Common Mistakes Defendants Make Regarding Damages in Personal Injury Cases: Mitigation and Lost Earnings

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Economist Patrick Gaughan, Ph.D., a forensic economist with Economatrix, writes about the t ten common mistakes that defense attorneys often make during the damages portion of a personal injury case. This week, we’ll take a look at two of these ten mistakes each day in a series of five blogs.

Mistake #5: “Failing to Fully Explore Mitigation.” If a plaintiff who has been injured is ultimately able to return to work, the amount of money they can be expected to earn in the future will have an impact on any damages awarded. This is also known as the “mitigation of damages.” The testimony of a vocational expert, along with that of a medical expert, is often needed to help a plaintiff figure out what he or she can truly expect to be able to do after an injury, and how much money he or she can expect to earn doing it. But defense attorneys often do not retain vocational experts. Again, this can be a cost-cutting measure, as insurance companies demand that their defense attorneys save money wherever they can. But the lack of a vocational expert for the defense can work in favor of plaintiffs who do have vocational experts on their side.

Mistake #6: “Lost Earnings Projections that do not Accurately Reflect the Plaintiff Earning History” The plaintiff’s side in a personal injury case should argue for the highest possible damages to which the plaintiff may be entitled based on expected future earnings in light of the injury. A vocational expert can play a huge role in figuring out what these damages might be and can cite employment market data to bolster a plaintiff’s case. The defense has a responsibility to research and present its own argument. If the defense fails to do so, that is not the fault of the plaintiff.

Vocational experts can testify to aspects of a plaintiff’s case such as current employment trends, expectations about how an injured person will likely be able to perform in the workplace after an injury, and performance by workers who have suffered similar injuries in comparable jobs. Retaining a vocational expert either by the plaintiff or defendant attorney can make a huge difference in damages awarded in a personal injury case.

Occupational Assessment Services, Inc. (OAS) is one of the top companies providing vocational expert and life care planning services in the United States for plaintiff and defendant attorneys. We have extensive experience documenting the case damages in Personal Injury cases.  Contact OAS at 800-292-1919 to discuss how we can help with your case.