What’s my case worth? How much will I get? In our nationwide FTCA practice, these questions (and their infinite variations) are probably our single most common inquiry. And as any lawyer knows, answering such questions is not only hard to do, it is fraught with hazard. Still, at some point if you are in the business of handling personal injury or malpractice cases, you will have to give clients an opinion as to the value of their case.
My early training and long experience as a defense lawyer taught me how to evaluate cases. Insurance companies expect such analyses. Some (but by no means all) actually relied on the opinions of their outside counsel. My early mentors instilled in me the ethic that you need to do it right. Telling the client or an insurance carrier that a case was “50-50” and saying the verdict could be huge or maybe quite modest or maybe something in between, was definitely not okay. You must give a reasoned opinion and I have carried that view with me ever since. I still follow that rule as a plaintiffs’ lawyer.
The basic analysis is deceptively simple. There are two questions: First, what are the odds Plaintiff will win if the case is actually tried. Second, if Plaintiff were to win at trial, what is the likely range of damages. In some form or another, both sides will use the same two-step analysis. For example, let’s say we calculate the odds of winning at 60-70% with a likely range of $300,000 to $400,000. The rough low-end settlement value is about $180,000 (60% of $300,000). If Plaintiff can get that much or more, then he or she should probably take it. The high end is $280,000 (70% of $400,000). If both sides are looking at the case the same way, then the defense should be willing to pay up to that high end. Of course, it’s rare that both sides look at a case in exactly the same light, but with good lawyers there is typically an overlap. For obvious reasons, the parties’ real evaluations are rarely shared, so you can never be quite sure. If only this process were so easy. It’s not because the specifics – the components that go into the analysis – are where the process gets tricky and sometimes sticky.
It may sound a bit surprising, but generally I think the first question is the easier one to answer. At least that is true for those of us who have a lot of experience trying cases. From my standpoint, the basic issue is how well the case can be defended. This is where my years as a defense lawyer and more than 100 jury trials is invaluable. I know how to defend a case. I know what works and what does not work. It’s a “been there, done that” sort of thing. Of course, there are many other factors, including how the client presents and the basic fact scenario. Those can weigh more heavily when a case is closer to the middle. Merely having adequate evidence to meet the minimal requirements is not a guarantee of even getting close to the 50% marker with the “trier of facts,” whether that is a jury or a judge. If the defense has a more plausible explanation for why what happened is not negligence, plaintiffs can and frequently do lose cases. That’s why understanding what it takes to defend a matter is so important. At this point, with my experience, that is not so hard for me.
The range of damages question is harder for a number of reasons. There are a number of considerations, including non-economic caps and the degree to which an injury is permanent, impairing or disfiguring. Unlike the basic up or down question as to liability, you have to be a bit of a mind reader to assess the damages range. One judge or jury could give a plaintiff $150,000 for a non-economic loss and think they are being totally fair and reasonable. A different judge or jury looking at the same plaintiff and facts might easily award three or four times that amount. Even the supposed predilection for certain venues being “generous” or “cheap” is an imperfect indicator. Some of my very worst losses as a defense lawyer were in supposedly “safe” courts with supposedly conservative juries.
Most of the cases we handle now do not involve juries. Federal Tort Claims Act cases are tried only to judges. You would think that would make this sort of analysis easier. It really does not. First of all, even for a judge who has been on the bench for 20 or 30 years, there is usually very little track record for how they have found in other FTCA cases and it would be very rare to find that one has ruled in multiple similar cases. Second, and while it may sound trite, judges are people too. Different situations affect them differently, just like everyone else. About the only thing you can really say about judges versus juries is that you are less likely to see extreme findings from a judge. Still, what I often tell FTCA plaintiffs is that a judge is not necessarily easier to predict than a jury. It’s just that the nature of the uncertainty is different.
So how do I answer plaintiffs when they ask me what their case is worth? If I have enough information, I tell them what I think. I lay out the risk. Sometimes it is not what they want to hear. I always make a point of telling folks that while I think my “odds” are reasonable based on my experience, whatever actually happens in their case is, of course, 100%. Frequently, I put this analysis is writing. Overall, I think most plaintiffs appreciate the careful analysis. There have been occasional misunderstandings – usually people hearing (or seeing) only the good stuff – but generally most people we deal with get it. They understand.