Usually, experienced lawyers or claims personnel looking at the facts of a particular case come to roughly similar conclusions. There is at least some substantial overlap. But every now and then that is not the case – and it’s not even close.
In analyzing any tort case, there are two basic questions: What are the odds the plaintiff will win and, if the plaintiff prevails, what is the likely range of a verdict. Both sides do this. In broad form, the process seems simple enough, but the multiple details and nuances of any given matter make it anything but simple. This is where experience and judgment come into play.
While the facts available to both sides are always a bit different, the information that can be used at trial is largely the same. This is why most of the time there is an overlap in the analysis of any given case. Yet, at times there is a huge variation that is hard to explain.
An example comes to mind: Not too long ago we had a matter involving a tragic death. Unfortunately, after filing the claim, our expert reviews of the matter were not particularly supportive. It was a horrible situation, but we had thin proof that any government healthcare provider caused the death. Obviously, this was not a case where we were going to file suit. We advised the client accordingly and opted to just let the claim sit with the government agency. Most likely, it would be denied; we’d close the file and that would be the end of that. While relatively unlikely, we hoped we might get a nominal offer, enough to pay the expenses and give the family something. Except that is not what happened. A few months later we got a substantial offer and the matter was soon settled in mid six figures.
Why did this happen? The short answer is that I have no idea. The government lawyer was very experienced and meticulous – someone for whom I have huge respect. After the initial offer we went back and took a careful look at the case and our reviews. I conferred with other experienced lawyers. My reaction was that we had to be missing something, but if we were missing something, we never figured out what it was.
While what happened here is not commonplace, it’s not all that rare either. In over 36 years, both as a defense lawyer and as a plaintiffs’ lawyer, I have seen it more than a few times. While one side was clearly “wrong” about the case, the error is hard to figure out. It’s possible that our reviewers missed something that the government experts saw. The converse is also a real possibility. There could have been extraneous factors about the facility or particular providers that made the other side uneasy. I just don’t know – and I almost certainly never will.
Thinking about this case also makes me cringe, especially thinking back to when I was a defense lawyer. I have no doubt there were cases where I paid significant money when the other side really didn’t think they had much of a case.
My larger message for lawyers and clients is to remember that, in reality, there is a big margin of error in this business. I am good at analyzing cases. I have a great deal of experience and I trust my own judgment. However, even if I am right 90% of the time, that other 10% is not a small matter. As I often tell clients when explaining their risks, a 10-20% chance of losing is huge. Think about it: If the odds of winning the lottery were 15%, we would all buy a lot of tickets.
The element of uncertainty is an “x factor.” It’s there and we have to account for it, but it is by definition elusive. As lawyers, it is a good reminder for us and our clients that there are no guarantees in this business. We always have to consider that the other side might have a very different view of the case. That “x factor” is an elusive but constant variable for all trial lawyers.