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Cover Story: Forecasting Value in a Plaintiff's Case

by Gerald A. McHugh Jr.

Winter 2000, Vol. 63, No. 4

Forecasting cases is one of the most difficult tasks performed by a plaintiff's lawyer. Obviously, the baseline evaluation for a case consists of the special damages that the plaintiff can credibly claim. Although important, special damages by themselves do not control the value of a case. Substantial verdicts have been won where the plaintiff can prove minimal or even no special damages. Conversely, disappointing verdicts have often been returned even where the plaintiff had "big numbers on the board." This article addresses some of the intangible factors that can affect value.

Most experienced lawyers believe that a jury's verdict is a function of its motivation, and motivation in this context is a function of the jury's sense of justice. Jurors generally view trials as morality plays, in which their function is to reward good and punish evil. Surveys have shown that a majority of jurors believe it is more important to do what is right rather than to follow the strict letter of the law. Accordingly, in evaluating a case, jurors are most persuaded by their sense of right or wrong.

A jury motivated to find for the plaintiff will be more likely to accept the plaintiff's damage presentation, which increases the value of the case. To that extent, the jury's decision to accept one version and reject another is a process in which rationalization plays an important part, in the sense that the jurors' inclination to accept the specific arguments advanced by either side is guided by the ultimate result that the jury wants to reach. As a result, the most important question in evaluating the case is: "How is the jury likely to evaluate the justness of the plaintiff's cause?" Trying to predict a jury's reaction is an uncertain science at best. It is, however, possible to think about these issues in a systematic way by considering certain questions that play some role in most cases.

Defendant's Culpability
There is a significant difference between cases where a defendant is technically responsible for the plaintiff's injuries and a situation where the defendant is morally culpable. For example, in a case involving a manufacturing defect in a product, the defendant may well be legally responsible if one out of 5,000 assembly-line products is missing a bolt and happens to injure the plaintiff. The same exact case takes on a much different complexion if the defendant manufacturer knew that a supplier had provided it with substandard bolts but decided to use them in production anyway, in order to avoid the cost of their replacement. In the former case there is liability; in the latter, true culpability. Or in the parlance of experienced trial lawyers, there is "heat" in the case that will likely inspire a jury to award a greater measure of damages.

Strength of Defense In some cases, the facts establishing liability are clear, and there is no serious dispute about the existence of a significant injury. When such cases proceed to trial, usually it is because of a dispute over how to value the loss. Sometimes this is because of a genuine disagreement about how a jury will view the case. Frequently, however, the defense simply holds out and stands firm, counting on the plaintiff (or his counsel) to lose patience or lose heart and accept less than full value for the case. Therefore, from a plaintiff's perspective, it is important to recognize that the defendant's failure to acknowledge the value of the case does not diminish its value. The true value of a claim is not dependent upon the defendant's agreement because ultimately a jury determines the value of any given case, not the claims "marketplace."

From the defense perspective, holding out is a dangerous strategy. If there is, in fact, no defense, the jury's motivation to compensate the plaintiff will likely be higher. Still more dangerous is the truly indefensible case, in which there is nonetheless an attempt to mount a defense. If defenses are patently lacking in credibility, not only is the plaintiff more likely to prevail, but the value of the claim is likely to be enhanced for two reasons. First, where the defense lacks credibility, the believability of the plaintiff's case is almost always enhanced by comparison. Second, most juries, consistent with their self-perceived role as participants in a process that is meant to accomplish justice, will react negatively to anything they perceive to be untrue and will likely reflect that displeasure in their verdict.

On the other hand, if there is a strong defense and reasonable minds can differ about the merits of the case, the verdict potential is likely to be lower. In part, this is also a function of the jury's motivation because a conflicted jury is more likely to hesitate in accepting the damages or discount its verdict to reflect its doubts. Furthermore, if a number of jurors have strongly conflicting views, they may render a "quotient" verdict, averaging the amounts each would award. In one recent case I tried involving a closed head injury, with no special damages, the jury used Olympic scoring-eliminating the highest and lowest proposed award, and averaging the others.

Problem-Solving Plaintiff
Every case has problems, some more than others. There is, however, a cumulative effect where the plaintiff must overcome multiple obstacles in order to prevail. A single reference in a doctor's report that is inconsistent with the plaintiff's claim to injury can easily be understood as an ambiguity or mistake. However, repeated inconsistencies spread over the records of many physicians will undoubtedly raise questions in the minds of most juries.

A plaintiff whose work history reflects a single dispute with an employer, leading him to change jobs, will likely suffer little from the average jury. In contrast, a plaintiff who repeatedly changed jobs over a period of years is likely to have his claim for future impairment of earning capacity treated far more skeptically.

The plaintiff whose trial testimony is inconsistent with his deposition in a single respect will likely be given the benefit of the doubt by a jury who doesn't expect a perfect memory to begin with. The plaintiff who is repeatedly shown to have an "improved" recollection about critical facts will be judged differently.

Just as a defendant courts trouble in asserting an indefensible position, so too a plaintiff's claim is likely to diminish in value if there are a substantial number of weaknesses in the case, which must be explained for the plaintiff to prevail. Every time a jury chooses one version of facts over another, it makes a leap of faith. The more explanations that are necessary to establish the plaintiff's right to recover, the more doubts a jury is likely to entertain about the justness of the plaintiff's cause, and the more likely it will be to discount its verdict.

Larger Theme or Issue
Jurors like to participate in the process of justice and to feel that in rendering a verdict they are not simply awarding a sum of money to an individual, but vindicating some larger principle. A jury's motivation to award damages will be greater if it believes that its verdict is deterring a manufacturer from supplying a dangerous product or forcing a hospital to provide more responsible patient care. Social trends can affect verdicts. For example, dissatisfaction with managed care is certainly in the background of current malpractice litigation. Jurors also respond when an individual plaintiff can establish a need for protection against wrongs committed by a large or powerful institution. To the extent that the plaintiff's case can be couched in broader social terms, there is a greater likelihood that the jury will be persuaded to award a full measure of damages.

Plaintiff-Jury Relationship
Legally, this is irrelevant. Practically, it is of great significance. If it is true that a jury's damage award is a function of the extent to which it is motivated to compensate the plaintiff, the ability of the jury to empathize with the plaintiff is critical. Is the plaintiff a likable individual, or one whose personality may offend certain jurors? Is the plaintiff credible, or will the jury tend to discount his or her testimony? Has the plaintiff responded to adversity in a courageous way, or will the plaintiff be viewed as a whiner? Does the plaintiff present the facts accurately, or overstate the case? All of these factors have great significance in the context of a jury trial.

That does not mean that a trial is merely a popularity contest. A plaintiff who presents himself with a bitter edge may not be penalized by a jury that understands the reasons for the plaintiff's demeanor. A gruff, working-class plaintiff who refuses to put on airs is likely to win a jury's respect. A minority plaintiff who might otherwise be the victim of discrimination may well be embraced by a jury that recognizes she has not surrendered to difficulties created by racial prejudice. Thus, there is no ideal composite of a plaintiff. What is important is the ability of the jury to relate to the plaintiff as a person and therefore understand the impact of the plaintiff's injuries. In presenting the case, the challenge for counsel is to determine the most effective way of presenting the plaintiff so that the jury will respond to him or her as another human being. For purposes of settlement evaluation, the critical issue is counsel's prediction of the degree to which the plaintiff will be able to connect with the jury.

Perhaps the most critical issue is the plaintiff's individual credibility before the jury. Invariably, the plaintiff who overstates the case, either on liability or damages, will pay the price in terms of the jury's award. The appellate advance sheets are filled with cases in which juries rendered modest or compromise verdicts, principally because of exaggeration by the plaintiff. A plaintiff who embellishes the case will have the least jury appeal. Conversely, the plaintiff who shows persistence in the face of adversity, by attempting to cope or by attempting to return to work, will in most instances encourage the jury to return a higher award.

The apparent motivation of the plaintiff in bringing a case will also sometimes become relevant. If a long-absent relative brings a death claim and appears to have newly discovered attachment to the deceased, the jury will likely consider such family history in fashioning its award. If the plaintiff in a professional negligence case appears to be motivated by some personal animosity toward the lawyer or doctor being sued, or appears to bear a grudge against the world in general, a jury is far less likely to be receptive to the claim.

Defendant-Jury Relationship
The impression that the defendant will likely create must also be considered, although this factor appears to have the greatest relevance in professional negligence cases. In my experience, most jurors seem to assume the existence of liability insurance, and large verdicts have often been returned even where the defendant was an individual, personally acquainted with the plaintiff. It appears as if juries in such cases almost assume that the claim is "nothing personal" when calculating damages.

Ironically, some juries are more concerned about the impact of cases involving professionals, where jurors appear to have a great deal of concern for the reputation of those involved. Thus, it is relevant to ask whether the jury will consider the defendant to be a life-saving pioneer from the television show "ER" or a self-absorbed yuppie from "Ally McBeal."

Determining Damages
Juries often seem to apply some principle of proportionality in determining what damages to award. For instance, until recently juries have tended to undercompensate older plaintiffs, presumably on the grounds that an injury late in life has less significance than one at an earlier stage. Similarly, in the case of affluent plaintiffs, juries sometimes appear to discount an award, as if taking into account the fact that the plaintiff has other resources upon which to rely. The impact of these factors can be diminished by effective advocacy, but nonetheless should be taken into account when placing a value on the claim.

Jurors are sometimes also affected by the "it could be worse" phenomenon. In a malpractice case, if a minor side effect occurs after surgery that saved the patient's life, the likelihood that the jury will be moved to award substantial damages is minimal. If a safety device on a product inflicts a minor injury while protecting the plaintiff from a severe injury, there is a strong possibility the jury will return a verdict suggesting that the plaintiff count his or her blessings.

On the other hand, aspects of the case that conventional wisdom would consider as a weakness may, if properly argued, constitute a strength. If the plaintiff had a limited life expec-tancy, even in the absence of negligence, destroying the plaintiff's quality of life during the limited time left may constitute an even greater loss. If the plaintiff was recently retired, thereby eliminating a claim for lost earnings, being deprived of the opportunity to enjoy that retirement with his or her spouse could represent a far more significant loss.

Special Damages
As noted above, special damages form one baseline against which to analyze the value of a claim. In many cases, however, a large component of special damages will be future losses claimed. An important factor in the jury's verdict will be the firmness of the special damages. Obviously, this is pertinent to the amount the jury returns for such damages. But there is often a ripple effect as well, in which the jury's overall award may be lower if it concludes the plaintiff was overreaching with the special damages claimed. This is yet another way in which credibility is important. Some jurors cynically expect lawyers to inflate damages and to seek more money than the case is worth, which the jury will then discount. For purposes of determining an accurate value for a claim, counsel must later be confident that the future losses can be proven by competent evidence and will be taken seriously by the jury. Counsel whose settlement strategy is to hype special damages must be capable of distinguishing puffing from proof.

'Escalators' in Case
During a trial, a variety of events can occur that ultimately affect the value of the claim. Experienced counsel can predict some of these variables and consider their impact in estimating potential for a case. For example, pretrial preparation may have revealed that a defense expert can be badly discredited on cross-examination. The defense may adopt a particularly hard line, such as blaming parents for an injury to a child, or faulting a spouse for not providing better care to his or her mate. Or, the defense may stake out positions that it cannot maintain, by offering to prove an alternative cause of the plaintiff's injuries, rather than simply dispute the plaintiff's evidence. The effect of such tactics may be to raise the stakes in the case. If the defense is successful, the plaintiff may be precluded from recovery. On the other hand, failure to prevail with an aggressive defense may escalate the jury's award. In determining value, counsel should think through the expected dynamics of the trial itself and factor in circumstances that are likely to have an impact.

Few aspects of trial practice are more subjective than case evaluation because so much depends upon the lawyer's own world view, life experience and personal values. Case evaluation is rendered still more subjective because in the final analysis it is the jury's world view, life experience and personal values that will produce the verdict. On one level, juries, like weather, are a force of nature, capable of humbling even the most sophisticated system of forecasting. This article has suggested some of the human barometers I have found useful in predicting the conditions likely to prevail, however inexact the science of forecasting might be.