Can you value your civil case when you have little trial experience? The answer is yes. While there is no magic formula, these are a few things I have used in the past to help me make a reasonable prediction.
- Start with hard costs. A hard cost is something you can more easily confirm and document, such as medical expenses, lost earnings, and property damage.
- Evaluate your client. Think about your first meeting. What was your gut reaction? Did you like your client? Likability can be a factor for juries. Was your client credible? Is his or her factual account consistent or does there appear to be memory problems? Worse yet, could your client be lying? Maintaining objectivity in this step is critical, and involving other team members in this assessment may help. For business clients, consider the type of business. Is it a large corporation or a mom-and-pop business? Evaluate the individuals who will testify on behalf of the business or sit at the counsel table in trial.
- Consider emotional factors. Whether representing the plaintiff or defendant, decide if the emotional card works in your favor. Are there issues in your case where a jury will be empathetic or mad? Is there behavior that a jury will want to punish? Emotional cases may be the most difficult to evaluate.
- Bring in an expert. Where financially feasible, consult an expert. Experts can be very useful for determining loss of future earnings (sometimes called lost earning capacity), future medical costs, lost business profits, etc. Opposing counsel will likely have an expert as well. Many times, a jury will award damages somewhere in the middle of the competing expert recommendations.
- Use case evaluation as a starting point. A 2011 SCAO study concluded that only 38 percent of attorneys thought case evaluation provided a fair valuation. That said, a case evaluation can be a useful starting point. It can also be a reality check for the client.
- Assess the weaknesses in your case. First, identify how you think your opponent will attack your case. Next, answer this statement: “This case would be perfect except for ____________________.”
- Lose your bias. Unconscious biases interfere with reasonable case valuations. Often referred to as “group think” or “client-think,” common characteristics of this bias include feeling you cannot fail, rationalizing away bad data, and feeling superior to rivals. This leads to focusing on good evidence and ignoring bad. To better understand this concept, check out the YouTube presentation called the “Monkey Business Illusion”: http://www.youtube.com/watch?v=IGQmdoK_ZfY.
- Follow similar cases in your area that go to trial. While potentially time-intensive, following trials in similar cases can be a great way to see how jurors react. Many courts have an online docket system, which makes it easier to track and attend.
With fewer cases going to trial, the measuring stick of what a “jury would award” may soon be nonexistent. In its place will invariably be a new set of tools and strategies to accurately determine the value of a case.