Question: How long is this going to take?

Answer:

Even before the pandemic hit, the reality of litigation is that it is not a fast process. We lawyers have many one liners to neatly explain this and my personal favorite is that “the wheels of justice turn slowly.” 

Litigation moves at a much more methodical pace than other economic activity that people are used to. The practical reasons for this can include uncooperative opponents, constraints of the judicial calendar, scheduling coordination, and the sometimes lengthy process of obtaining records and other important information from disinterested third parties. The overarching reason things are not as fast as people might be used to is because, more so than other realms of society, litigation is the process of getting it right, however long getting it right might take. If a party needs to obtain thousands of pages of records before they are ready to take a deposition, they will typically be afforded the time to do so. If 20 witnesses need to be deposed to ensure that litigants know everything there is to know about an incident, then 20 witnesses will be deposed. If a doctor’s calendar is booked for the next three months, the deposition will be scheduled four months later and little progress might be made on the case in the interim.

As a lawyer involved in litigation, it becomes easy to acclimate to the methodic pace, so we need to continually remind ourselves how unexpected the pace might be to a client who works in a different industry. Imagine working in logistics and being told that it is going to take a month to get a full set of records - and that when those records come, they will likely be sent in the mail, or worse yet, by fax!

Above all, the most important thing to remember regarding the pace of a case is that the speed and which it progresses is not typically relevant to the substantive value of the case. In other words, delays, unwelcome as they may be, do not mean there will be a lower financial outcome when all is said and done. After all though the wheels of justice do grind exceedingly fine.

Question: How much money am I going to receive when this is all said and done?

Answer:

Because the legal world is complex, this most simple and important question requires a less-simple response. The framework used to determine how a settlement will be allocated is described below. The economics of the cases vary greatly, but as a general rule, there are a few buckets of entities that are entitled to a portion of the settlement funds. Everything left after the following groups are paid belongs to the client.

Payment of Medical Bills

If your case is one based on medical care, you are entitled to the fair value of the bills for that medical care. Those bills need to be paid or reimbursed out of the proceeds of the case, but how that will look depends on if and how those bills were paid in the first place. If the bills were not paid in the first place, your lawyer will work directly with the medical provider to pay those bills. If those bills were paid by another entity, such as private insurance, Medicare, Medicaid, or medpay, your lawyer will work with whoever paid the bills to reimburse that entity for the amount it paid. Another question that often comes up in this realm is why an entity such as private insurance is entitled to reimbursement when a client is paying (expensive) premiums every month. Because the value of the settlement to a client is often being driven by the amount of bills, if another entity is paying those bills on the client’s behalf, failing to reimburse the payor for the amount paid would result in a client receiving an unfair double recovery

Reimbursement of Costs

Your lawyer will often pay the costs associated with the case on your behalf while that case is pending. Your lawyer is entitled for the reimbursement of these costs. As a general rule, the costs necessary to pursue a case go up as the case gets closer to trial due to the type of work necessary to prepare a case for trial. Examples of costs include filing fees, court reporter fees, expert witness fees, and costs associated record retrieval.

Attorney Fees

Your lawyer is entitled to a percentage of the settlement, which is proportionate to the size of the recovery.

There are other interests that need to be accounted for, from time to time, but the big ones are above. A client is entitled to the balance once the above items are all taken care of.

Question: How much is my case worth?

Answer: Ultimately, for better or worse, we are trying to fit every civil case that we handle into an economic framework. Imperfect as it may be, the civil system is set up to provide money for individuals to reimburse them for the harms suffered, regardless of what the form that harm took in the first place. In a situation like property damage, this system works pretty well - an individual can be paid for the replacement or repair value of his or her property. In a situation where the harm is something awful, like death, it is much more difficult to fit such profound damages into a financial framework. Nevertheless, this is the system we have, and we strive to get as close to justice as we possibly can.

The factors that drive value in an injury case are generally, the following:

Loss of Normal Life: A change in or loss of one’s ability to experience life’s activities in the way you could before an incident, such as an inability to do yard work.

Pain and Suffering: The physical pain resulting from an injury.

Disfigurement: The physical manifestation of an injury, such as a scar.

Wage Loss: Income that a person would have earned, but for the injury.

Medical Bills: Charges for medical services rendered to treat an injury.

Emotional Distress: The psychological trauma resulting from an injury.

Future expected hard can be applied to all of these categories.

One of the best tools to use to determine how a case might be valued is the jury verdict reporter, which is a database of past case results. A rough comparison here can inform what an expected result might look like. It is important to keep in mind that cases wildly vary. Subtle differences in injuries can lead to vast differences in an assessment of financial damages. You could imagine that the difference between minor and life-changing for harms like facial scars or brain injuries is a very fine line.

Of course, the underlying factor that must also be considered is liability. If you are going to have a hard time proving that someone or something else is the cause of the harm suffered, the risk of losing at trial or walking away with a compromised award must be recognized.

Question: Are we going to take them to court?

Answer:

It usually happens at a point in the case when a client is frustrated with a defendant’s unreasonably low offer. The client tells me that “we’ll just have to take them to court.” Enthusiastic as I may share in the sentiment, my response is usually something along the lines of explaining to a client that we already have ‘taken them to court.’ Of course, anyone not involved in the daily practice of law could be excused from missing this since so little of the substance of a case (prior to trial) actually occurs in court (especially these days). And clients are rarely present during the times we do find ourselves in court.

So how do we think about the notion of being ‘in court?’ A case can be resolved with litigation, which is the formal process of taking legal action. However, if the parties are unable to come to a resolution, a lawsuit is filed. Once lawsuit is filed the court has jurisdiction over the parties, so the defendant has been ‘taken to court’. Of course, the filing of a lawsuit is merely the formal beginning of what can be a long and potentially complex process. Because a trial is where all of the action happens, clients often perceive trial as a party being taken to court, but it is better thought of as a culmination of the litigation process if the parties have not been able to resolve the case while in court at any time leading up to the trial.

Question: What should a client expect during a trial?

Answer:

Trial is where all of the moving pieces of a case come together. The progress of a case may wax and wane slowly, particularly from a client’s perspective. However, a client’s level of involvement in the case cranks up considerably leading up to and during trial. So let’s talk about what trial looks like from a client’s perspective.

Preparing to Testify

A common refrain in our office as we move through litigation is that we don’t ‘win’ a case at any isolated stage. Before a deposition, clients are often advised that they should not be thinking about trying to ‘win’ their case at the deposition. Do so, and you are more likely to put something regrettable on the record. The stages of litigation where we need a resounding ‘win’ are less common than one might think. You largely make a little progress, take what you can get, move on to the next battle, and gain what additional ground you can there.Trial is different. Trial is where you try to win and try to win as big as possible. The approach to presentation of testimony is much different. As plaintiffs, we have the burden of proof, and we usually have to prove a variety of things during trial (as opposed to a deposition, where we are generally under little obligation to ‘prove’ anything). A client’s testimony is obviously central to any given case and, thus much time and care will be spent well in advance to make sure we put our very best foot forward and check all of the boxes that we need to. Thus, jury can consider all of the evidence we feel is important to rendering a verdict in our favor.

Coordinating Witnesses

Unlike the rest of the case, which is a methodical walk of independent components that need not occur simultaneously, at trial, everything needs to come together all at once. Witness testimony is critically important. Scheduling and coordinating witness testimony in the face of a fluid trial schedule is stressful. Because a client is likely to know (and often know very well) some of the witness who will testify, we’ll often ask clients to help us make sure those witnesses are aware of the importance of their testimony and to keep those witnesses apprised of exactly when it looks like they’ll be called to the stand.

Conduct During Trial

Trial of a civil case is one of the few times a client has a front row seat to events in court. Most of the time, only a lawyer goes to court, only a lawyer attends depositions, and the lawyer negotiates on the client’s behalf. Some notable items regarding what its like to participate in a trial include:

• It is important to keep your reactions in check. Even in a very strong case, not everything that happens is going to be favorable. The judge may decide to keep out evidence that we’d like to get in, and witnesses may testify in ways that you do not like. (believe it or not, they don’t always tell the truth!). Many things that seem bad in the moment are not as important as they might seem in hindsight, but the harm they do is certain to be exacerbated by any type of emotional reaction. No sighs, eye rolls, sound of any kind. Generally speaking, no reaction to what is going on in the courtroom is a good reaction.

• There is a lot that you will want to say during trial. After all, the trial revolves around you. It is easier said than done, but while court is in session, communication with anyone, including (and especially) your lawyer, should be kept to an absolute minimum. For one, it is a bad look (in line with the concept of being reactionless, above). Also, your lawyer must be in a state of high focus. It is best to take notes and confer with your lawyer about those notes during the breaks (there will be many breaks).

• This next one goes without saying, but it is so important that we’ll say it anyways: be on time. The importance of being on time so that you are not wasting the time of the jury that you will be asking to award you money cannot be overstated.

• Until the final verdict has been rendered, none of the trial participants are permitted to interact with the jurors. It is worth making a mental note of this, because trial participants and jurors go to and from the same area at similar times, so it is not uncommon that you’ll be in close quarters with someone in an elevator bank or going through security. Avoid the natural human tendency to communicate with the people that you have come to recognize.

• Lastly, the pinnacle of a case and the fact that you are center stage causes some people to believe that they need to deliver a performance worthy of the occasion. Your authentic self is the only thing that will come through to the jury. An over the top ‘performance’ will be received transparently and likely reflected by a low verdict. This goes for not just how you testify, but how you carry yourself, communicate, stand up, sit down, and behave. If you are energetic and outgoing, great. If you are feeble and cantankerous, also great. Authenticity to your true self and your true condition what the jury is there to see.

Question: When are we going to settle?

Answer:

When something bad happens and it’s not your fault, you want to be made whole yesterday. If only the legal process worked so quickly. A better way to think about this question is a series of questions: What amount of money will provide fair compensation for the damages sustained? How likely is it that we are going to prevail at trial? How much would the defense have to offer such that accepting the certainty of that offer is more favorable than the delay and risk of moving forward with the case? What can yet happen during the course of litigation that might persuade a defendant to increase its offer?

A threshold concept to consider is that even the strongest of cases require the other side to be willing to pay fair compensation in order for that case to be resolved. While a jury verdict against a defendant is a compulsory mechanism that we can use to compel payment, everything short of that requires the willingness of both sides to come to the table to negotiate and strike a deal.

Many factors that come into play during settlement discussions depend on a client’s personal mindset. Everyone is cut a bit differently. Some clients have a larger appetite for risk than others and are more inclined to take the risk of a trial. Litigation is a lengthy process and some clients would be willing to settle for slightly less money at the outset of a case rather than live with it through a long and stressful litigation process. Sometimes a fair offer, even one is at the lower end of reasonable, is going to be more enticing to some clients than it will to others who don’t mind wrestling in the mud with hogs.

Decision Points

Having mentioned some of the factors that influence settlement of a case, let’s talk about when settlement windows are open their widest. There are events during the pendency of a case when, depending on which issues are disputed, the opportunity to resolve the case might be ripe. These windows of opportunity include:

• The filing of a lawsuit - sometimes the filing of a lawsuit, in and of itself, is sufficient motivation to pressure a defendant to increase its settlement offer. Reasons for this may include that they know they will have to incur more costs to defend the case or that filing a lawsuit requires different people with different opinions to get involved in a case.

• After the plaintiff’s deposition - If there are questions about what kind of witness a plaintiff will be or unexplained issues about events that transpired, these can often be clarified at a deposition. If they are clarified convincingly, a defendant may be motivated to come to the table to discuss settlement.

• After a defendant’s deposition - Similarly, the defendant’s deposition can be clarifying as to how events might play out at trial. If a defendant does not leave their attorney and insurer confident in their theory of a case, it might invite an opportunity to settle.

• After doctors’ depositions - If a plaintiff’s injury or recovery is complicated in nature or complicated by factors such as other unrelated injuries or degenerative conditions a doctors testimony clarifying how the underlying problems relate to the lawsuit can enlighten defendants as to the issues claimed in a case and put to rest any thoughts that problems are not related to a lawsuit, thus inviting a potential settlement discussion.

• Leading up to trial - The risk and resources commanded by trial cause all parties to take a good long look in the mirror as to the stakes and outcomes of going to trial. The weeks leading up to trial typically invite parties to put their best settlement positions on the table.

These are just a few of the more common circumstances when a settlement discussion might be ripe. Each case has its own unique set of circumstances which make some settlement influencing factors more important than others. There are also many items that motivate defendants and insurance companies that we, on the plaintiff’s side, have little knowledge of or control over. Such factors include company policies in certain cases, strategies they want to test, or facts they wish to hide that would otherwise come out in litigation. Such factors are difficult to identify, even in hindsight, but likely significantly contribute to settlement discussion in certain cases.