22 Jan Virginia: Personal Injury Damage Awards – a Lawyer’s Instructions
Typically in Virginia, jurors receive the Virginia Model Jury Instructions about what damages they can award victims of wrongful death, vehicle accidents, medical malpractice, defective products, and other personal injury. Those pattern instructions inform jurors that they should consider pain, suffering, inconvenience, disfigurement, medical bills, lost earnings, etc.
Significantly, however, Virginia jury instructions do not cover two other “losses” unavoidably borne by every victim of wrongful death, vehicle accident, medical malpractice, product liability, or other personal injury. One is attorney fees; the other is litigation expenses.
In Virginia and elsewhere, cases of wrongful death, vehicle accidents, medical malpractice, product liability, and other personal injury are handled on a “contingency fee” basis, whereby the attorney is compensated by receiving a percentage of the recovery obtained at trial (or by settlement), if any. That is because victims usually cannot afford to pay an attorney a standard hourly rate for time expended, particularly when the amount, timing, and even the fact of recovery is disputed and uncertain.
Traditionally the contingency fee is one-third of the (gross) recovery in vehicle accident cases. However, in more complex time-consuming expensive risky litigation like medical malpractice and product liability, the contingency fee typically is 40%.
In addition to attorneys fees, the Virginia Code of Professional Responsibility mandates that a victim of wrongful death, vehicle accident, medical malpractice, product liability, and other personal injury must bear his litigation expenses. Usually the most significant expenses are expert fees, court reporter fees, and travel expenses, which generally are not recoverable from the wrongdoer.
Even in a modest vehicle accident case, such litigation expenses easily can amount to several or more thousand dollars. In complex litigation like medical malpractice and product liability and even in some hard-fought wrongful death and vehicle accident cases, such expenses are $25,000.00 – $50,000.00 to upwards of $100,000.00.
Thus after payment of attorneys fees and litigation expenses – not to mention liens for any medical expenses covered by private insurance or government programs – a victim of vehicle accident actually may receive only 60% of the jury’s award, while a victim of medical malpractice or product liability may be lucky to get 50% of the jury’s award. Legislative change is needed so jurors are instructed to consider attorneys fees and litigation expenses in awarding full fair compensation to victims.