Day on Torts
About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers. The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..
Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.
The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down. To be sure, you have to a plan in place to get inquiries on new cases. And you have to have the ability to prepare and try the cases you accept. But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.
Our legal work comes from a variety of sources and we are honored to be offered many potential cases each month. We end up turning down the a significant percentage of those cases. Some of those turn-downs concern situations where a statute of limitations has been missed (Tennessee has the shortest statute of limitations for personal injury claims in the country – one year) or the time remaining before the statute of limitations expires is too short to do an appropriate investigation. Other cases are turned down because the alleged injury is very minor or the liability of the potential defendant is non-existent. Still other cases are turned down because, regardless of our view on what the law should be, current law does not permit the claim to be pursued or the damages to be recovered and the time or case is not right to push for a change in the law. While some people who fall within these categories of turn-downs are upset that we cannot help them, most people are very understanding and turning them down as potential clients is not particularly difficult.
What is much more difficult is turning away cases with real injuries or even a death that, from the publicly available facts, might have merit under existing law and involve a solvent defendant. After what we hope is careful analysis, we accept some of these cases. But, we also turn down some percentage of these cases, determining that the investment that must be made by our firm to prepare and try the case, coupled with the risk of loss, is too great given the fee that can be earned from a successful outcome. This happens with more frequency now, given recent tort reform legislation that has capped damages in tort cases in Tennessee and modified common law liability principles. Turning down such cases is very hard, particularly if I like the plaintiff or have a close relationship with the lawyer who has called us about the case.
Plaintiff’s lawyers are in the risk business. We work for free–unless we win. We advance case expenses – sometimes hundreds of thousands of dollars in a single case – and don’t get it back unless we win. This plaintiff’s lawyer doesn’t play blackjack, shoot craps, or play poker for money. Gambling is my vocation, not my avocation. I understand that risk in those games can be managed though an understanding of math and one’s adversaries, but I don’t choose to invest my time in gaining those skills.
But the playing card analogy can be useful, because just like you don’t "hit" on 19 and don’t "go all in" on a pair of twos, you cannot accept every case with strong damages proof simply because it has the potential for a significant jury verdict. Instead, before you accept a case you have to have a reasonable likelihood that a jury will determine that someone who has some means to pay a judgment did something wrong and caused an injury, and that claim has to either be grounded in current law or you have to have a good shot of making new law. The risk of loss must be balanced against the potential recovery and both must be weighed against the investment of time and money.
After 32 years of law practice, I have a good idea what it costs to prepare and try a case the way we prepare and try cases. (We keep up with attorney and paralegal time in our cases, so I have some numbers to back up my gut instinct.) I know that, other things being equal, it costs more to try a multi-defendant case than it does a single defendant case. I know it takes longer to prepare a multi-defendant case than a single defendant case (in part because of increased scheduling difficulties).
I know that it takes much more time to prepare and try a typical medical malpractice case than it does a complex car or truck case without a products liability issue. I know that the ante in an auto products crashworthiness case is $50,000 or more and that hundreds of thousands of dollars will be spent preparing such a case for trial.
I know that venue is important, and that there are some places where a plaintiff is very unlikely to get twelve of twelve juror votes to win regardless of the facts (Tennessee requires unanimous verdicts). I know that who the plaintiff is impacts the likelihood of winning and the damage award, and that too is affected by venue.
I know that the identity of the trial judge, and his or her willingness to uniformly apply the rules of civil procedure and evidence, impact the likelihood of success in my case. I know that trial judge’s willingness to give me a firm trial date will affect the value and financial viability of the case. I know that removal of a case to federal court impacts the case, sometimes dramatically.
I know that the law makes a difference in whether a claim is viable or not, and if I do not stay current on the law I cannot make good case acceptance decisions.
I know that the facts underlying the case are important. Very important.
I know that regardless of how difficult it is to get money from an insurance carrier who has no policy defense in the case it is almost always harder to get money from the individual wrongdoer. (I also know that some individual defendants have more to lose than money and thus will personally contribute to get a case resolved. Achieving this result requires more work by the plaintiff’s lawyer.)
I remember the words of Tom Lambert, truly believe that no law is settled until it is settled right, but I also realize that who serves on our appellate courts (and now more frequently, in our legislature) impacts whether any particular aspect of the law will be settled right in my lifetime.
I know that all of the above factors are taken into account not just at trial but also at settlement, and thus the amount of a settlement will be impacted by both positive and negative factors. I know that horrible injuries do not necessarily mean that the case will be settled; e.g. in our jurisdiction some percentage of birth injury cases are tried (and often lost) without any settlement money on the table.
I know that some defendants don’t settle cases, either because (a) they or their counsel do not properly evaluate risk; (b) they or their counsel properly evaluate risk, but they simply don’t care about the downside risk because the dollar amounts are immaterial; (c) they can’t settle the case because the case strikes at the heart of their model of doing business; or (d) in professional liabiilty matters, the insured refuses to give consent to settle. I also know some defendants and defense counsel are more risk adverse than others.
I know that what made economic sense twenty years ago does not necessarily make economic sense today, and that it is important to learn from past experience and weigh that experience against the current environment when making case acceptance decisions.
I know that despite my best efforts to calculate the time and money it will take to bring a case to trial I almost always underestimate both.
I know that 33 1/3 % of 0 is 0 and that the people who work with me and my landlord wants to be paid whether we win or lose a case.
Armed with this knowledge and a little more, I believe the reasonable plaintiff’s lawyer takes into account the likelihood of recovery, the potential amount of recovery, and the amount of time and money it will take to get there before accepting any case. A very relevant factor in the "time and money" component is the lawyer’s experience with that type of case.
The above analysis can take seconds in some cases and a hundred hours or more in other cases. The lack of experience with a particular type of case increases the risk of error, because it affects the ability of the lawyer to think about and weigh (what should be) known knowns and known unknowns and makes it impossible to ponder the existence of and give weight to unknown unknowns.
I am not trying to turn plaintiff’s practice into a "business." But if we don’t manage our time, our expenses and make informed judgments about case acceptance (1) we won’t be in our profession too long; or (2) we will stay in our profession but will unnecessarily raise our stress level as we try to juggle financial problems that could have been avoided through good case acceptance practices.
Nor am I suggesting that you should only take "easy" cases, that you should not do pro bono work, or that you should not accept what I call "cause" cases (cases that are almost certainly not financially viable but the lawyer feels the need to bring). What I am suggesting is that you should make your pro bono decisions at the time you accept the case, not a week before a three-week trial when you have $100K invested in experts, your house has a third mortgage on it, and you need to settle two whiplash cases in the next 48 hours if you are going to meet Friday’s payroll.
Likewise, I encourage you to accept a "cause" case only for a cause you truly believe in and then only when it fits into the overall caseload of your practice, i.e, when you can afford to take an economic hit if you win the case and a bigger hit if you lose the case.
I know that this may make me sound more like person running a venture capital firm than a trial lawyer. But I believe that we have a responsibility to our existing clients, to our employees, to our families, and indeed to ourselves not to jump into a case simply because that has a sad story and no more. Unfortunately, there are lots of sad stories. Our office turns down hundreds of cases every year, almost every one of them is a sad story, and many of them are downright tragedies. But the fact of the matter is that the law does not have a remedy for every wrong and while we can help change that through political and community action it is very difficult to do so in the course of your law practice except on a select, limited basis through the acceptance of certain pro bono and "cause" cases.
Why should we stay away from cases with a low risk of helping us earn a fair return unless they are true pro bono or cause cases? Because every hour we spend working on cases with a ten percent chance of recovery we are taking away hours from maximizing the value of the "good" cases. We are taking away time from our families, and we are taking away time from ourselves. This is time we will not get back.
Most of us who rarely work by the work by the hour are already squeezing every second out of every minute–we cannot afford not to do so. So, we must constantly ask ourselves whether the acceptance of a new case, particularly a case that will demand a significant percentage of our work time or an extraordinary expenditure of money, makes sense given the rest of our practice, our financial situation, and our life.
I am not suggesting that thoughtful case acceptance is easy. I am not suggesting that if you go through this analysis that you will get it right every time. (I know I do not.) And I wish I had a way for you (and for myself) to precisely evaluate all of the intangible aspects that must go in to a proper case acceptance evaluation.
But I can say without hesitation that you will reduce your stress level and improve your financial situation if you develop and implement a case acceptance policy that that causes you to think about whether you should accept any case that requires a considerable investment of time or money or is outside your normal casework. (By considerable investment of time and money I mean an investment that is "considerable" for you and your practice given your overall personal and financial situation. For example, for some lawyers this will mean that no medical malpractice or products cases should be accepted – the investment and risk is too great.) Turning a case down that is not right for you, your firm and your family at a particular time is a different but right call. Every time.