Case Valuation is Key

So, what is any given case worth? Our Pittsburgh lawyers consider this question every day from both the plaintiff and defense perspective.  The same concepts below apply to both contract disputes and personal injury matters. 

We describe for our clients the range of likely outcomes in any given case, speaking from dozens of years of combined experience.

What matters, above all, is how a jury will view the case because that’s where most cases go (with certain exceptions), if no settlement is reached. Western Pennsylvania juries tend to be a little more stingy than Eastern PA juries, for example. Valuing a case from a trial standpoint, there are a variety of other factors we consider:

• Who has the burden of proof?

• What admissible evidence is available (not all evidence is admissible)?

• How credible are the witnesses?

• How complex is the case (the more complex, the more variables there are, and the more uncertain the outcome will be)?

• What is the highest likely amount to be won? This is important because the prospect of a high verdict (even if unlikely) can make an insignificant case settle for a significant amount of money.

The other key consideration is: how expensive will litigation be for the defendant? This matters in all cases – even those involving multi-million dollar malpractice and construction litigation, for example. This is because, big cases can have big expenses, and all parties must be able to forecast costs at every stage.

For Plaintiffs to Ponder:

What is the most important number to consider: zero.  This was a trick question.  There is not always a verdict for the Plaintiff.  To the contrary, juries tend to be skeptical of claims for money, possibly having seen too many “lawyer commercials” on TV or on billboards.  Juries tend to be skeptical.  Plus the law gives them an “out.” The plaintiff has the burden of proof and must prove all four of the following in a negligence or contract claim:

• The defendant owed a duty to the plaintiff, either based on a contract or general duty by everyone in society to avoid harm to the general public (negligence) by careless driving or poor maintenance of sidewalk (slip and fall), etc.

• Defendant breach his duty;

• Defendant’s conduct caused plaintiff to sustain some form of damages;

• Plaintiff’s damages are real and have a certain value.

• The jury can enter a “compromise verdict” for pain and suffering, awarding as low as one dollar for pain and suffering, if the jury sees problems with the proof of liability.

Breach of Duty.  The plaintiff must prove that the defendant breach some form of duty owed to the plaintiff (either in contract or negligence or other duty).  No breach of duty, no recovery. It’s that simple for most cases.  Often, the defendant will employ an expert to challenge the plaintiff’s expert’s findings about fault.

Causation. Sometimes liability and “fault” is clear, but that does not guaranty a recovery.  Far from it.  Even if the defendant admits liability, the plaintiff must show that the defendant’s conduct caused the damages alleged.  No causation, no recovery.  Again, it’s that simple.  This applies in most breach of contract and personal injury cases.

Proof of Damages.  The plaintiff  must also prove existence of actual, tangible, real (not speculative) damages. This may seem easy, especially if one’s business has lost profits from the defendant’s conduct, but lost profits can be the most difficult thing to prove as there may alternate causes outside the defendant’s conduct: normal business cycles, a down economy, etc.  Some damages can be worth a significant amount of money (such as brain injuries or failures to complete a major construction project), but inconvenience and annoyance with the court process is not worth anything, for example.

Deal Or No Deal

When evaluating settlement offers, we ask our clients to consider the show Deal or No Deal. Given the uncertainty of how a jury may decide a case, a client’s choices may be:  take the certain money (offered in settlement)…or take the unknown amount in the brief case.

But litigation is not exactly like Let’s Make a Deal because an experienced lawyer can give you the realistic probabilities about what’s “behind door number three,” for example.

Taking Away the Uncertainty. 

An experienced attorney can take away uncertainties by getting the case settled early. This can be done by:

• Creating a persuasive and compelling demand letter and packet of information (for the defendant or his insurance carrier to review) that answers all the defendant’s questions before the questions are even posed, before the defendant digs into a “low ball” position;

• Explaining away problem areas in the case (tough issues of fact or law) early on,

• Detailing for the Defendant exactly how much risk and cost he’ll assume by not offering enough money to settle the case,

• Being persistent and showing the defendant or his insurance carrier that we will keep the pressure on them until they pay what the case is worth. We apply pressure by maintaining regular communications with the responsible party:  (phone calls, emails, faxes).  We provide a drum beat of communications: updated medical and/or business records (receipts, contracts, etc) related to the case to keep the defendant engaged and focused on your case.

If negotiations fail and the case is certainly headed for trial, then what?  Fortunately, it remains possible to control risks.  For example, a lawyer can negotiating a “high-low” agreement.  This is done by stipulation.  It creates a range in which the jury’s verdict must fall.  It puts a floor on how little money the jury can award, which the plaintiff may want because it eliminates the possibility of a zero verdict.  It also places a ceiling on how much money can be awarded, which the Defendant may like, to reduce maximum exposure.

Some Real-Life Examples.

Let’s look at two recent jury verdicts.  These cases are very similar in that each involves an injury to one’s brain medical malpractice, and in each case, the plaintiff produced evidence to prove every element:  breach of duty, causation, and damages. But the juries empaneled in each case come to very different conclusions.

Plaintiff Verdict: $78.5M

• “A Philadelphia jury rendered a $78.5 million medical malpractice verdict in the case of a child who has cerebral palsy because of a loss of oxygen during a delay in her delivery.

• Parrys Nicholson-Upsey’s mother, Victoria Upsey, was told her baby had died, but Upsey told the treating obstetrician she was still feeling her baby kick inside of her, according to plaintiffs court papers.

• A nurse initially thought the baby was dead after conducting an ultrasound, and defendant obstetrician Dr. Charles V. Touey also thought the baby was dead after conducting an ultrasound, according to the plaintiffs court papers,” reported by Amaris Elliott-Engel.

Defense Verdict, $0 for Plaintiff. 

• In a medical malpractice case tried in Dauphin County, Pennsylvania, a jury issued a defense verdict on behalf of a general surgeon. The plaintiff provided expert medical testimony that the defendant-doctor performed improper laparoscopic surgical procedures on a female patient to treat chronic pain from the formation of abdominal adhesions.

Early Case Evaluation is Key 

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