Plaintiffs may no longer need an expert to prove that a permanent injury has impaired their ability to earn money. Under Reece v. Nationwide a plaintiff can get to a jury merely by offering proof “with reasonable probability” that her injury is permanent. Lower courts had held that Ms. Reece did not have enough evidence for a jury instruction on her impairment claim because she did not present specific evidence of how the injury would impair her earnings.

But the Supreme Court said she had only to show permanent impairment. Once she offered such proof the jury could decide the extent of her impairment “common knowledge and experience.”

Permanent impairment claims can be among the most valuable an injured person can make-and the younger the claimant, the more potential value the claim has. Take a 20 year old plaintiff who makes $7.25/hour as an example. Multiply that rate by 40 hours a week, by 52 weeks a year, then by a life expectancy of 62 years. Under that basic formula the 20-year-old has the ability to earn more than $900,000. If a doctor says that 20-year-old is permanently injured-and that apparently is all the evidence now needed to get such a claim to a jury-that’s the amount he can ask a jury for. And that is a worker with no benefits.

Michael Stevens at Kentucky Law Review notes that most lawyers representing plaintiffs may not change their practice. They may still retain experts to prove an impaired person’s damages because the minimal evidence needed to get the matter to the jury “is not necessarily what will be sufficient to persuade the jury on the value of those damages.” While valid, that point but does not change the fact that Reece will allow juries more freedom to speculate, and more opportunities to do so. And the impact of that is more likely to be seen at the settlement table than at trial.

A recent Kentucky Supreme Court case will change the way that knowledgeable lawyers negotiate releases. In Abney v. Nationwide Mutual Insurance (Issued November 2006, final March 22, 2007) an unrepresented  claimant settled with Kentucky Farm Bureau and signed a form release. In addition to Farm Bureau’s insured, that form released “all other persons, firms, or corporations liable, or who might be claimed to be liable” from any kind of claim that might result from the same accident.

The Supreme Court held that this document released Nationwide, which had not been a party to the settlement. While KRS 411.182(4) states that a release of one tortfeasor does not release others “unless it so provides,” the language quoted above did so provide. The Court rejected claimant’s argument that he and Farm Bureau made a mutual mistake in releasing other parties. Before resorting to the doctrine of mutual mistake, the Court held, it would first have to find the contract ambiguous. This contract, it held, clearly released all potential parties.

In future releases, lawyers representing injured persons will want to restrict the description of who is released. Lawyers defending those accused of causing injury should expect this, and should be prepared to accommodate changes. But they will still want to make sure that the new language is broad enough to release all persons whose liability may be imputed to his client, and all persons who might possibly be insureds under the applicable policy-especially if the limits of the policy are being paid. A reasonable compromise seems to be to keep the same broad release language, but except specific parties against whom the plaintiff may still have claims from that language.

Claimants who have negotiated their own settlement should consider spending the money to have a lawyer review the settlement papers. Had Mr. Abney done so, he might have preserved his claims against other potential tortfeasors. If those claims had any value he would recoup many times over what he might spend to have the release reviewed.

C-Net reminds us that electronic evidence can be critical even in mundane traffic cases. The article “Is Your Car Spying on You?” discusses “black boxes” installed in most Ford and GM cars since the year 2000, devices that record speed, whether ABS braking systems activate, and whether airbags deploy, among other data. According the C-Net the black box in New Jersey Governor John Corzine’s SUV showed that car was traveling 91 mph at the time of his accident (not 70 as witnesses testified), and that the governor was not wearing his seatbelt.

Does that mean the speed witnesses were inaccurate or lied? Not necessarily. Engineer Perry Zucker points out that black boxes were designed to retrieve diagnostic data for mechanics to fix cars; not to provide legal evidence. For various reasons, trying to use those data to determine liability may not always work.