Maximizing Tort Recoveries: Getting Clients the Best Possible Outcome
Written by Steven Silin, Retired
Every lawyer wants his or her clients to have the best possible results from their injury cases. While there is no formula for accomplishing that, an aggressive and imaginative case-handling philosophy, properly and thoroughly executed, will enhance the clients’ chance for success.
Cases Cannot Be Valued In The Abstract
The proper benchmark for case value is what a jury would likely award for your individual client’s injuries, not what other cases “like it” may have settled for. This is true even if the case may settle before trial. Certainly, it is important to know about other verdicts and settlements to have a sense of comparable value, but no two cases are alike. Getting the best value for a particular client requires using judgment to understand what a jury might award to your client, and why.
Thus, to properly value a client’s case, an attorney must know every aspect of it, legal and factual, and think about its strengths and weaknesses. Only after the details of the case are considered can its full value be ascertained. Anything short of a full case work up will get the client the “going rate” for similar cases, but not as much compensation as the injuries warrant.
A client’s recovery can only be maximized when plaintiffs’ counsel prepares to go to trial and win. Otherwise, recovery will be limited to what the insurance company thinks it should pay.
Special damages are usually only a small part of the value of a case, but they are, nevertheless, at its core. Even insurance companies’ computerized case analysis begins with objective or “hard” damages, such as medical expenses (past and future), lost wages and impaired earning capacity. Getting compelling admissible evidence on these points as early as possible will enhance the chances of optimizing the client’s recovery.
With the special damages well understood, counsel can turn to the bigger picture: the client’s personal story and how the injuries have impacted his or her life. Indeed, the heart of the case, and its greater value, usually revolves around the intangible aspects of the damage claims: pain, suffering and loss of enjoyment of life. The job of the trial attorney is to know the client well enough to marshal all of the supporting evidence and effectively communicate the client’s personal story. This story, solidly proven and well told, will lead to the best possible outcome for the client.
Factors Affecting Value
There are a number of factors that may either enhance or reduce case value. Positive factors include, of course, having a client who is credible, sympathetic, and able to communicate well. Such clients are able to explain the changes in their quality of life, and the price they pay every day for their injuries. Other positive factors in the case may include helpful family members, lay witnesses and cooperative, supportive doctors. Another factor which may add to case value is outrageous conduct on the part of the defendant. The more purposeful and conscious the defendant’s choices leading to the injury, the more likely it is that a jury will be willing to send a message to the defendant through the assessment of compensatory damages.
Factors which may reduce case value are most likely related to liability. There may be questions of law or fact that make it doubtful that the defendant is liable at all, or questions about plaintiff’s comparative fault.
Non-fault issues such as pre-existing medical conditions and the plaintiff’s age are factors that can either add to or reduce case value. They are often not fully understood, and aggressive, creative counsel will find that such factors may enhance case value by helping to explain the seriousness of the injury. Since it is the change in the plaintiff’s symptoms or the change in quality of life caused by the injury which is the critical factor in determining damages, an older person or one with a pre-existing condition may suffer more than a young and healthy person with the same condition.
Clearly, qualified medical doctors who are willing and able to testify enthusiastically and supportively are important to a good outcome in any tort case. Part of counsel’s job is to be pro-active in making sure that all of the client’s injuries are being treated and well-documented. Where catastrophic injuries are involved, additional witnesses qualified in life-care planning and economics will be necessary to establish and present evidence of the present value of future medical costs and economic losses. Where liability experts such as accident re-constructionists or engineers will be necessary, it is wise to employ them early. Such experts can assist with both developing and preserving important evidence. While it can be time consuming and expensive to be sure that the right experts are working for the plaintiff, it is impossible to maximize the value of a client’s case without committing the necessary resources to the task.
Alternative Theories Of Liability
Another way to enhance the value of an injury case is to consider the full range of potential claims and to identify all possible defendants. People who furnish motor vehicles to others, employers, manufacturers and distributors of any defective products involved, servers of alcohol, negligent medical providers and underinsured motorist carriers may all be accountable for the damages suffered by the plaintiff. Each of the possible claims should be explored fully and pursued in a way that puts the plaintiff in the best position to make a full recovery.
To effectively maximize the value of a client’s case, an attorney must invest all of the effort and money required to understand and document the case thoroughly, and to prepare the case as if it is going to trial. This level of preparation and the willingness of counsel to try the case to a conclusion will protect the client from the insurance company’s goal, which is to pay as little as possible for the injuries suffered. Clients can only win through careful, thorough case preparation.