The most frequent question I get asked by my clients is, “What is my case worth?” This is never an easy question to answer, because case value is subjective. You could ask ten different attorneys the value of your case, and probably get ten different answers. However, there are some parameters that should be followed when evaluating a case.
Our Law Firm uses multiple methods for evaluating cases. We study jury verdict research to determine what types of verdicts have come out in cases similar to ones we handle. We talk to other lawyers. We compare current cases to others we have handled in the past. We think about the questions that will be on the verdict form if the case goes to a jury trial, and we try to predict how a reasonable jury might answer those questions, considering the nuances of the case in question.
The first question on the verdict form in a personal injury case relates to liability. It usually goes something like this: “Was the defendant guilty of negligence that was the legal cause of the plaintiff’s injuries, loss or damage?” On the surface, this question does not appear to relate to the value of the case: Either the defendant is liable or not. However, to properly value a case the lawyer should consider the possibility that the jury may answer “no” to this question. If there is a 25% chance the jury determines no liability, the value of the case should be reduced by 25% for settlement purposes.
The next question on the verdict form relates to the negligence of the plaintiff. “Was there negligence on the part of the plaintiff that was a legal cause of his or her own injuries?” If the answer to this question is “yes,” the jury is then asked to apportion the amount of negligence between the plaintiff and defendant. To properly value a case, the attorney should predict the most likely response from the jury regarding the plaintiff’s negligence, and should further reduce the value of the case by the percentage of negligence attributable to the plaintiff.
Further questions on the verdict form relate to the plaintiff’s damages. Damages include medical bills and lost wages, future medical bills and lost wages, past pain and suffering, and future pain and suffering. Past medical bills and lost wages are often easy to calculate, and are commonly (although not always) awarded by the jury. Future medical bills and lost earning capacity are more speculative, and therefore we usually see the jury splitting the baby by awarding only part of what we are claiming for future economic losses. The proper settlement evaluation of a case requires predicting the likelihood the jury will award the full past and future lost wages, and reducing the case value by the likely amount the jury will reduce those amounts.
The most difficult part of evaluating a case relates to predicting the amount a jury will award for pain and suffering. In the past, the rule of thumb was two times the economic losses. In my experience, that formula is a terrible way of predicting the outcome of a jury trial. There are so many factors to consider, the best we can do is evaluate the client’s story and predict what we think a reasonable jury would award under the circumstances. Remember that if liability is established the plaintiff is entitled to money for past and future pain and suffering. The future pain and suffering should be calculated considering the plaintiff’s life expectancy.
Once you add up all the damages, you reduce the amount of those damages by the likelihood of a defense verdict, then further reduce them by the likely apportionment of negligence attributable to the plaintiff. Then, you have your settlement value. Calculating the damages is often more of an art than a science, and even the best attorneys get it wrong, since we don’t have a crystal ball.
One last tip for the personal injury plaintiff or plaintiff’s lawyer: err on the side of overvaluing your case. The settlement value of a case is most often determined by the collective minds of the people involved. Very few cases end in a jury trial, so realistically you are dealing with an adjuster, defense attorney, and mediator. If you think your case is worth more than everybody else, you raise the collective mindset, and you may be able to negotiate a better settlement. I’ve been accused many times of overvaluing my cases, but still we get cases settled – and the ones which don’t settle usually end up with verdicts higher than the defendant’s insurer’s last and best settlement offer.
