Reality check – Plaintiff

A Point of View

David H. Fauss, M.S.M.

On October 13, 2016

Category: Uncategorized

A not so secret secret is that plaintiffs in civil litigation often overestimate the value of their case. We have heard, many times, from our attorney clients that their clients often expect them to be able to resolve their case for many times more than what it is “worth.” Sometimes these expectations are based on the amount of money other people whom they know have gotten in a case. Sometimes it is based on “promises” made in lawyer advertising. Often, it is based on the amount of insurance the defendants have available in their policy, or even the size and financial resources of the target defendant. These unrealistic expectations are difficult for the attorneys to manage and good opportunities to achieve settlements are sometimes squandered by plaintiffs who do not understand how a value is assigned to the injuries they suffered. As an example, we recently had a case on which we worked with a plaintiff involving a defendant with $5 million in insurance coverage. There was no question of liability – the plaintiff was a pedestrian who was struck by a (drunk) driver. The plaintiff was badly injured and unable to work. But, there were several factors the attorney thought would limit the plaintiff’s recovery of any amount of money. Magnus conducted mock jury research and the mock jurors pointed out these issues, and more, as they deliberated. They awarded less than half of the $5 million policy limit. This was a harsh reality for the plaintiff, who could see the deliberations videos with his own eyes. This “reality check” process can bridge a gap between attorneys and their clients and provide a perspective that allows them both to make educated and informed decisions about resolving a case. And, some of our attorney clients engage us in such cases as a “CYA” and to ensure that their clients know they are not being sold short. The reality check provided by mock jury research has resulted in the quick resolution of many cases on which Magnus has been engaged. Try it.

Another View

Melissa Pigott, Ph.D.

On October 13, 2016

Category: Uncategorized

All of the cases in which I have been involved as a trial consultant are important cases involving serious matters. There has never, ever been an attorney who contacted me for assistance in a simple matter, a frivolous lawsuit, or a small claims court case. All of the personal injury cases I have worked on have involved significant injuries to the plaintiff(s). In a similar vein, all of the commercial litigation matters I have worked on have involved millions, and sometimes, billions of dollars at stake. And, the most serious cases I have worked on are criminal cases, usually capital murder, involving the death of one or more people and another person’s (the defendant’s) life or death. This being the case, it is rather common in the world of civil litigation for the plaintiff (either the injured person in a personal injury case or the company alleging a wrong doing in a commercial case) to become overly involved in his/her/its case and to believe “the sky is the limit” in terms of the likely monetary award a jury, judge, or arbitration panel will award. I am not accusing any plaintiff of being greedy; rather, it is usually the case that the plaintiff has been living with the terrible events that culminated in the lawsuit for many years, such that he/she believes a huge amount of money is the only thing that will come close to rectifying the negative event in his/her life. The plaintiff, of course, is never going to be the person who places a value on the case. Instead, the damages are going to be awarded by fair and impartial decision makers who have nothing to gain and nothing to lose when making a decision that is, in many cases, the most important decision affecting the plaintiff’s life. The absence of personal involvement in the case leads most decision makers to view the case in ways that provide a stark contrast to the plaintiff’s perspective. Due to their highly personal involvement in the eventual outcome of their case, many plaintiffs fail to listen to their attorney’s warnings that they might not get what they want and could, in fact, get nothing. It is in these types of cases that mock jury or mock arbitration research is warranted. Understanding what other people think about one’s case is often a big wake up call for the clients of the attorneys who hire us because it provides a dose of reality that cannot be achieved via any other means.

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