One of the greatest challenges facing the attorney is achieving full and fair value for the case through settlement. If the settlement process fails, all counsel can do is attempt to achieve appropriate compensation from the jury, with considerable influence from the presiding judge. Once the jury begins deliberations, all control of the case is lost. Certainly some cases must be tried. In most cases, if properly selected to begin with, the client’s interest will be better served by a skillfully negotiated settlement than by trial. To prepare your case for a successful trial or settlement, you must first begin with a  thorough pre-suit investigation of the case.


A. Evaluation of the Client and the Case

The most important time spent on any case is the time spent in the selection process. The most important question to ask yourself during the intake of a case is whether this is a case you are prepared to investigate, file, fund, discover, try and, if necessary, pursue through appeal. On the plaintiff’s side, unless the case is one of probable liability, with damages substantial enough to warrant the time involved in its preparation and trial and the costs involved in proceeding to trial, employment should not be undertaken. The surest way to an unhappy case result is accepting employment in a case that the attorney hopes to settle, knowing that the case is not a good candidate for trial because of problems with liability or limited damages. On the defense side, is this a client that is likely to pay your hourly fee and/or provide you with repeat business and, therefore, more revenue? Is there a good defense? These are all important considerations. If you are practicing insurance defense litigation, many of these considerations are largely rendered moot – you defend the cases your insurance company client sends to you.[1]

          1. Damages

It may seem unusual to begin this discussion with damages as opposed to liability since you do not even get to the issue of damages unless the jury answers “yes” to the question of liability. However, our practice is to assess damages before liability. If the case is not serious enough to meet your threshold, there is no reason to expend time and resources investigating liability. Nowhere is appropriate criteria for case acceptance more important than in cases involving medical negligence. Insurers and their counsel will determine right away that a weak damages cases is unlikely to result in a substantial adverse verdict against them. If so, the insurer, its client, and its counsel will dig in their heels and defend most aggressively. The case will become a “can’t win” situation for plaintiff and plaintiff’s attorney.

Medical malpractice cases in particular can be frighteningly expensive. In very serious cases, with multiple experts (often for multiple defendants), the cost can easily range up to several hundreds of thousands of dollars by the time the case is completed. Attorney time may approximate a man-year of work. Odds are usually stacked in favor of the healthcare provider. But, if carefully selected, these cases can result in fair and adequate compensation for the client and a reasonable return on plaintiff’s counsel’s considerable investment.

After you have determined that a case is viable from a damages perspective, it is important to spend as much time developing the damages portion of your case, as you spend trying to establish liability. After all, the goal of a plaintiff’s attorney is to get compensation for your client:

Write it on your office wall in big letters: “The goal is money.” Carve it in your desk. Obvious? Yes. But easily forgotten. We are easily detoured by the difficulties of jumping the liability hurdles. And when we take our eye off the real goal, so do the jurors. That is why we can battle for days and weeks to a difficult liability victory – and get almost enough money to pay the medical bills. Even when we do well, how many cases that got “decent” results should have done far better? Keep your eye on the goal. Liability is not the goal. Liability is only a hurdle, a stepping stone en route to the goal. The goal is money.


          2. Liability

The second important consideration is liability. As noted above, you want to try and select only those cases where there is probable liability. Of course, this is not always possible. Young lawyers who hang their own shingle and need to put food on the table, for example, may not have the luxury to be as discerning about case selection as more established firms. Nevertheless, every lawyer has to analyze the merits of a case prior to filing.

While the subject of reducing “frivolous lawsuits” is prominent in public discussion, it is easy to forget that there are already mechanisms in place to prevent such lawsuits. First, Rule 11 requires that a pleading be “well grounded in fact and is warranted by existing law.” N.C. GEN. STAT. § 1A-1, R. 11 (1985). Failure to comply with this rule subjects the filing attorney to sanctions by the Court which may issue such sanctions on its own initiative even in the absence of a motion from the other side. Second, lawsuits can be expensive to prosecute. Most firms are small businesses. It simply does not make good business sense for small business owners to pursue cases where there is unlikely to be a worthwhile return. Consequently, the notion of “frivolous lawsuits” is seen as somewhat of a red herring in the opinion of this blogger.

The fact is, however, some cases are better than others from a liability standpoint. One important consideration is your client. In case selection, appraisal of the client and key witnesses is of critical importance. The client must be someone whose predicament creates jury appeal. The client with a serious criminal background, a checkered employment history, frequent lawsuits or other fertile sources of impeachment should be approached with caution – and usually avoided. Few aspects of a case are as important as credibility – both yours and that of your client. If your client is not believable, you are going to have a much more difficult time getting over the liability hurdle.

Note that the damages portion of your case is also directly impacted by your client. Clients who had medical bad treatment but recovered despite of it, are not good medical malpractice candidates. As trial lawyers, we have a responsibility to represent the seriously injured from all walks of life. However, clients that we know will not make effective witnesses no matter how hard we coach them can present difficult challenges. Clients without serious injury cannot afford the cost and risk of medical malpractice litigation.

          3. Ability of Opponent to Pay

Unfortunately, you can have a wonderful case from both a liability and damages perspective, yet the matter should be refused because the defendant has no insurance or assets to pay damages. Hopefully, you can make a determination of the opponent’s ability to pay prior to filing suit. For example, if it is a motor vehicle accident case, you may contact the defendant-to-be’s carrier to request the applicable policy limits under certain conditions. See N.C. GEN. STAT. § 58-3-33 (2004). If there is no policy, or the limits appear insufficient, perform an asset search. There are individuals and entities who will perform asset searches for you. The cost of the searches is relatively low, but depends on the breadth of information requested.

Often, you will not be able to determine just how much insurance proceeds are available until after you file suit. Fortunately, under Rule 26(b)(2), your opponent is required to produce all insurance agreements which may be liable to satisfy all or part of a judgment, if asked. N.C. GEN. STAT. § 1A-1, R. 26(b)(2) (1967). Therefore, make sure you always ask for the insurance policies in every case at the outset via written discovery (if defense counsel will not produce the information on an informal basis).

I once handled a case in which a sweet, elderly lady was killed when a “free” horse charged her while she was visiting some stables. Pre-suit investigation of the case was very difficult, as the potential defendants (as well as some community members) erected a wall of secrecy and refused to cooperate for fear of suit. That left us no choice but . . . to file suit! After filing suit, serving written discovery and taking some depositions, we learned that the stable owner had no liability insurance covering the stables, that his homeowner’s insurance did not cover the incident, and that all he had in the world was his house, his barn and the land on which they sat. The client, the lady’s husband of almost 50 years, decided he did not want to take the stable owner’s house and evict the owner and his family from their home. Consequently, the client decided to settle for a modest sum below the actual value of the case. Though significant costs had not yet been expended, many man-hours worth of work went into the case. Despite the fact that our client was very appreciative of our investigation into what had happened (no one ever explained to him how or why the tragedy occurred), we probably would have declined the case if we knew just how limited available funds were from the outset.

The next post will discuss your investigative responsibilities into the case.

[1] This paper is written primarily from a plaintiff’s attorney’s perspective, though many of the principles set forth herein are applicable in the defense context as well.

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