Evaluating in the Dark

Being a personal injury trial lawyer means waiting for cases that have liability, massive damages, and a defendant who can pay. That call comes in one day and an appointment is set up to meet the potential new client. Invariably, the potential client's first question is "What can I expect as the value of my case?

Before that client comes to the office, he or she has already "determined" the value of the case, which is always on the high side. "If the elderly woman who spilled hot McDonald's coffee on herself can get millions, why can't I get a mere one million as well for the comminuted fracture of my femur, which required several surgeries and cost six months' salary from my $50,000 per year job?"

Large verdicts get publicity. Large verdicts make news.

But do these large verdicts survive post trial motions, and hold up to appellate review? Are such verdicts ever reported in final form? What do these expectations, fed by the Internet and media, do to your ability to be retained by that client and resolve a case satisfactorily in the client's eyes? How do you respond to the inevitable question: "So how much is my case worth?" That client has never learned about what happens to blockbuster verdicts post-trial at the hands of the trial judge, the Courts of Appeal, a bankruptcy court, or the insolvency of an insurance company.

The answer to all of these questions is: You must be fully informed as a professional, as a lawyer, as an officer of the court, as to what the reality is. Find out what happened to the large verdicts that received mass media attention.

Question whether the jury verdict survived post trial motions. Did the trial judge grant a new trial subject to the plaintiff's agreeing to accept a lesser judgment? Did the trial judge impose his or her value on the case by ordering a judgment notwithstanding the verdict? Did the 35 million dollar compensatory damage jury verdict get reduced to "just" 13 million?

Of course, appeals to the Court of Appeal and the state Supreme Court are commonly filed as well. Did the Court of Appeal find the verdict and amount appropriate, but on petition to the Supreme Court, did the large jury verdict then get reversed ?

The old adage, "If it sounds too good to be true it is likely not true," applies to this type of reported massive jury verdict as well. In many instances, the case was simply settled for much less than the reported jury verdict. Avoiding the uncertainty of post trial motions, appeals, collections efforts - in favor of getting paid actual dollars, generally prevails.

Knowing the ultimate result of reported jury verdicts in supposedly similar cases will help the attorney better represent the client, whether that client is a plaintiff or a defendant.

With this in mind, how do you practically apply this information to your case?

First, to that potential plaintiff client, tell them the truth, (you don't know yet what the actual ultimate value of their case will be; and, all you can do is make an educated estimate of value with the limited information you have available, but that you will do so as you proceed with the case.) If you must give them a dollar amount then do it in ranges with appropriate caveats of risk of loss, change in facts or law, and always make clear that there is no guarantee.

In the real world, most cases with catastrophic injuries and major damages may not come directly to personal injury lawyers who have the skills and ability to handle these types of cases. Prospective clients may call the family lawyer, the business litigation lawyer, a friend's attorney who does unlawful detainer matters or someone who has handled their divorce. In these situations, those counsel should immediately refer to, or associate with a lawyer who has the skill, training and expertise to take the case to trial or maximize its settlement value.

Next, during the litigation or in preparation for mediation, and when determining pre- and post-trial issues including when and how to settle, obtain all salient facts through investigation and discovery so that your case can be compared to the information you obtain on verdicts and settlements in "similar" cases. Keep in mind the necessity to obtain complete information. This due diligence is your professional obligation. Anything less perpetuates the misinformation generally propagated by the media. Your own experience, even anecdotal information, has its place and is very valuable as well.

When in settlement as the defendant, offer enough money to make an experienced plaintiffs' attorney unable to safely recommend to his or her client to walk away. Make the risk too great even though some might think it's clearly not enough money to settle the case. As the plaintiff, no matter how much value you believe the case has, don't be afraid to take less to get the matter settled. Arrogance by either counsel has no place in settlement discussions. Remember, it is a rare case that a super-verdict gets paid in full without a compromise. Settlement means compromise. You will compromise now or compromise later.

Lastly, during trial, when selecting the jury when in trial, keep in mind that the jurors have been subject to the same news reports filled with sensationalism and hyperbole that your client may have relied upon when he or she first came to see you. Having all the facts on how certain "newsworthy" verdicts ended up, or what they were based on, can be very helpful here as well. Take, for example, the McDonald's hot coffee spill. Many perceive that as being an obscene perversion of the legal system. But most also don't realize that the reason for the massive punitive damages award was because evidence was submitted to the jury that McDonald's knew the coffee was inordinately hot and that it had burned people many times before. However, McDonald's chose to continue heating their coffee to such an unnecessary degree because this enabled it to squeeze more cups out of the same quantity of coffee grounds and thus boost profits and decrease expenses. That did not sit well with the jury and it showed in their verdict. Furthermore, the verdict was later reduced and ultimately set aside in part by post-trial mechanisms.

We all tell our clients, and should tell our clients, that there are no guarantees. Determining the value of a case for either plaintiff or defendant is not a science, and we can be wrong even with the best intentions and due diligence.

But it's not a mistake if we do the necessary research and analysis and a jury or judge or panel of appellate judges makes a different decision than we do. Even when we exercise our best analytical skills, based upon as complete information as possible, one side is "right" about value and the chances of success, and the other side is "wrong." That is the nature of our system of advocacy. The key is to rely on all that can be known. But as attorneys, we cannot be lulled into believing our own hype, or the hype of the media, to the detriment of our clients. The educational process begins with the first phone call. After that, the facts you uncover and develop will reveal whether this case is the one you've been waiting for.