Monetizing Risk

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Personal Injury Risk Evaluation is a multi step process. But the ultimate result of that multiple step process is to put a dollar value on the risk – monetizing the risk. The first step is to identify each issue that will be presented to the jury on a jury verdict sheet. So let us look at a frequently occurring verdict sheet – a rear end motor vehicle accident.

Here are the essential facts of our practice case.

REAR END

SOFT TISSUE DAMAGE

UNDER $1,000 PROPERTY DAMAGE

$4,000 MEDICAL TREATMENT

$2,000 MEDICAL DIAGNOSTIC

$8,000 PHYSICAL THERAPY

$1,000 WAGE LOSS

5% PERMANENT DISABILITY

 

Verdict Sheet

1.Was the Defendant negligent? Yes___ No___

2.Was the Plaintiff negligent? Yes___ No___

3.In what amount do you asses damages?

Loss Wages___________

Medical Expenses____________

Pain and Suffering____________

 

In order for the jury to consider damages the plaintiff must get a yes to the first question and a no to the second question.

 

The process of evaluating a case needs to be disciplined and organized. You want to accurately identify all RISK factors that will affect your recovery. There are positive and negative risk factors. Positive factors increase the value of your case, while negative factors decrease the value of your case. Both are important and you do not want to miss any. And then there are factors which would on the surface appear to affect the value but do not — the red herring factor. A word of CAUTION. You cannot — I repeat cannot – properly evaluate  a case until you know all of the facts which are relevant to the issues of liability and/or damages.

 

Liability factors should be evaluated first. The goal here is to determine what your chances are of getting a plaintiff’s verdict. Is it 25%, 50%, 75% or 100%? If it were less than 100%, prudence would dictate that you reduce the amount for which you would settle the case. In our practice case a rear end accident you can say that you have a 95% chance of a verdict on liability. Why not 100% – because you can lose that battle or rare occasions.

Now lets us look at our practice Case.

 

Liability. There is no evidence that the this rear ended was caused by other than the defendant’s negligence. So we can say that the plaintiff has a 95%- 100% chance of a verdict on liability.

 

Damages. The only question on damages is how much the claimant will be awarded for pain and suffering. Tracking jury results would reveal that in 8 out of 10 verdicts the pain and suffering award for this type of case would be about equal to the medical expenses or $14,000. So the range of a verdict would be $26,000 to $20,000. With regard to the permanency rating juries and judges generally are not persuaded that this type of collision causes a permanent injury even when a doctor gives a permanency rating.

 

Does it matter whether the case is tried in a  liberal or conservative jurisdiction? Generally there is very difference with 80% of the verdicts. The exceptions (the 20%) however break against the plaintiff in the conservative jurisdiction but against  the defendant  in the liberal jurisdictions.

 

Personal Injury Jury Trial Risk Evaluation

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Personal Injury claim formPersonal injury jury trial risk evaluation begins as a claim for personal injury is processed through the claim process with the insurance company.During this process a lawyer begins to evaluate the strengths and weaknesses of the claim. This process is mostly directed at finding accurate information about the claim – eyewitnesses, medical expenses, medical opinions and the like. When a claim matures to the point that all the relevant information is known a process of evaluation begins – what is the claim worth. Generally speaking a claim is worth what a jury will award the claimant.

Trying to figure out what six folks – the jury – will do seems so impossible that it is not worth the effort. After all we do not even know who the six jurors will be. Will they be young or old, conservative or liberal, employed or unemployed – it is just not known until the final six are in the jury box and the case begins.jury

My quest for this type of knowledge began in 1967 , the year I graduated from law school, when I began clerking for Judge Ralph W. Powers and Judge J. Dudley Digges in the Circuit Court for Prince George’s County, Maryland.

Every trial lawyer wants to know what a jury might do in her next case – and a client desires to know to a greater extent.After clerking for Judge Powers and observing many jury trials I began to represent clients and actually try cases – some successfully and some not so successful. I was appointed as a Judge in 1982 and began trying cases in my courtroom. The Circuit Court for Prince George’s County had a very active settlement conference practice which I participated in – 5-7 conferences each day. Fortunately I had three much more experienced colleagues to guide me through this process – Judges McCullough, Blackwell and Levin. Every day at lunch we would discuss the day’s docket and I would ask them a thousand questions. Patiently, they would detail their collective experience.

Then in 1986 I began to record each verdict of our court – 13 judges( now 23) – several hundred verdicts each year. Over the years I have recorded over 5,000 verdicts and reported many of them to the bar.See Maryland Trial Verdicts.Very soon after I began this recording process it became very obvious that certain liability scenarios and personal Injuries were comprising the vast majority of the verdicts.

On the liability side these types were frequent – left hand turns, lane changes, snow and ice , slip and fall. On the injury side these types were frequent – sprains and strains, neck/back, pre existing conditions, knees/shoulders, broken bones, death.

Because these various types were frequently occurring it became pretty obvious that there were patterns of results. The patterns then served as a guide when trying to figure out how to avoid losing a case by entering into a good settlement. In future posts I will go into some of those patterns in detail.

Good lawyering also becomes a material part of the evaluation process. I often tell lawyers asking my advice on lawyering skills that usually  a bad lawyer cannot screw up good facts/law and a good lawyer cannot rescue bad facts/law. All though the great lawyers occasionally break this rule of thumb.

Recently the Grandson of one of those great lawyers appeared in a settlement conference and I told him a story of his Grandfather that occurred while I was clerking for Judge Powers in 1967.His Grandfather was trying a premises liability case where there was no evidence of actual notice to the landlord of a dangerous condition that caused the plaintiff to fall and be injured. During the trial a great deal of time had been spent describing the circumstances surrounding the condition that caused the fall. Circumstances such as how long the liquid had been on the floor, how visible the liquid was, how many people passed the liquid before the fall. At the end of the plaintiffs case the defendant moved for a directed verdict on the grounds that there was no evidence that the landlord knew that the liquid was on the floor – there was no actual notice. Judge Powers was about to grant the defendant’s motion and the plaintiffs lawyer from Baltimore, Marvin Ellin, pleaded with Judge Powers that while the current law favored the defendant the correct law was that of constructive notice. It was late in the day and Mr Ellin pleaded with Judge Powers to give him the overnight recess to provide a legal memorandum supporting his position. Reluctantly, Judge Powers agreed.

When I got into the courthouse before 7 AM the next day Mr Ellin was there in the hallway waiting for the door to be open with his freshly typed 20 page memorandum. Judge Powers arrived shortly and when he returned to the courtroom the defendants motion was denied. Later in the day a $50,000 plus verdict was returned for the plaintiff. Now that is great lawyering. It was several years later that the Court of Appeals of Maryland ruled that the doctrine of constructive notice was applicable in premises liability cases. (Regretfully, Marvin Ellin recently passed away)

Maryland Jury Verdict Report

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Maryland Jury Verdict ReportJury2

I am pleased to provide current Jury Verdicts in Anne Arundel and Prince George’s County. You will find below the verdicts for recent months in 2015.

Prince George’s County

2015 PGCC Verdicts

Anne Arundel County


2015 AACC Verdicts

I have done my best to provide complete information but I need your help in correcting inaccuracies and filling in absent information. If you know of other verdicts from around the State send me the information and I will post them. All verdicts can be found on MontyAhalt.com by clicking here.

As many  know I have been tracking verdicts since the late 1980’s in an effort to help counsel and litigants understand the risk of actually trying a case.Trying to figure out what six folks ( the jury) will do in a given case might seem impossible to some. However, tracking and studying results in similar types of injuries or liability types does reveal patterns. It is understanding those patterns and applying them wisely which leads a wise settlement rather than a disappointing trial.

Please feel free to pass this report along to your colleagues. I plan to periodically update the report so if you know anyone who would like to receive the information please tell them to send me an email requesting the report.

You can book your next mediation or arbitration with my online calendar – click here

Contact Judge Arthur M. Monty Ahalt (Ret.)

National Academy of Distinguished Neutrals – MdMediators.org

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The National Academy of Distinguished Neutrals is pleased to announce the launch of its Maryland Chapter – the “Maryland Academy of Mediators & Arbitrators” (MAMA) – online at www.MDMediators.org. 

Just 8 attorneys and former judges have been recognized as Charter Members of the Maryland Chapter, including most of the state’s most widely-accepted ADR professionals. The MD Chapter has an appointed Executive Committee which includes 3 leading local ADR practitioners: Jonathan Marks (Bethesda), Judge Steven I. Platt (Annapolis) and Sean Rogers (Leonardtown). 

Include the availability of the following neutrals:

 All Maryland Calendar Members



Non-Calendar Members:

The Academy’s new website is designed to “make life easier” for local attorneys, counsel, adjusters and legal support staff. www.MDMediators.org allows firms to quickly find a suitable neutral by identifying preferred practice criteria or dispute types, navigating straight to a roster of trusted local mediators and arbitrators. A majority of the Academy’s members also publish their availability calendars online for the benefit of clients. This allows the selection of a neutral and the scheduling of appointments to be greatly expedited for all parties involved. 

MDMediators.org is connected to the Academy’s national www.NADN.org database, already in wide use by attorneys across more than 30 state bars, including Alabama, Arizona, California, Colorado, Florida, Georgia, Louisiana, Mississippi, New York, New Jersey, the Carolinas, Tennesse & Texas.

In 2013, NADN was named Neutrals Database Partner to the national defense bar association (DRI) and the national plaintiffs bar (AAJ, formerly ATLA), providing these association’s 40,000+ litigators with vetted biographies of the nation’s top-rated mediators and arbitrators, via the DRI and AAJ websites. Only ADR professionals widely respected by local defense and plaintiff firms are invited to submit bio materials for review by NADN and state committees. 

“We’re delighted to welcome these top-rated neutrals to form the Maryland Chapter of the Academy,” commented Darren Lee, Executive Director of NADN. “We’re confident that the NADN database will prove as useful to litigation firms in Maryland as it has to other state bar communities in recent years.”

The National Academy of Distinguished Neutrals (NADN) is an association whose membership consists of mediators and arbitrators distinguished by their hands-on experience in the field of civil and commercial conflict resolution. As of June 2014, the association has over 900 top-tier ADR attorneys and judges confirmed as members in each of the 50 states, making it the largest free online roster of vetted civil mediators and arbitrators in the nation. Membership to the Academy is by invitation-only, with a strict peer-nomination vote and extensive client-interview vetting procedure, intended to ensure that only the top 5-10% of civil ADR practitioners in each state are invited to join the association. For more info, please see www.NADN.org/about

For further info regarding the National Academy of Distinguished Neutrals, please contact Rose-Anne Raies (roseanne@nadn.org) or visit www.NADN.org/about

THE NATIONAL ACADEMY OF DISTINGUISHED NEUTRALS 104 Churchill Way, W. Palm Beach FL 33411 • Tel: (813) 600-5678 • Fax: (866) 257-4698 • www.NADN.org

In-Depth Biographies and Calendars Now Available At www.MDMEDIATORS.org

National Member Directory online at www.NADN.org/directory

March 2012- In Memorium Chief Judge William H. McCullough 1926-2012

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March 2012- In Memorium

Chief Judge William H. McCullough  1926-2012

By Judge Arthur M. Monty Ahalt (Ret.)

William H. McCullough, 86 who was Chief Judge of the Seventh Judicial Circuit. He was County Administrative Judge of the Prince George’s County Circuit Court from1975 until 1992. He retired at age 70 in 1995, died, after a brief illness on February 16, 2012 at his home with his family in Seat Pleasant. He had Pulmonary Fibrosis. Judge McCullough served the residents of the county for over 50 years as a lawyer and judge. A graduate of the George Washington Law School in 1950 he began practicing law with his father “Doc” McCullough in Mt. Rainier, Maryland with the firm of McCullough, Pace and McCullough. As a lawyer he was a lifetime member of the Prince George’s Bar Association and instrumental in the formation of the Prince George’s County Legal Aide Society. He Represented the Prince George’s County Liquor Board.

He is survived by his wife Violet and his children, Aimee, Bill, Jr. (Anne), and Mary Beth Bates (Marty); seven grandchildren, Kristin, Joshua, Ben, Luke, Connor, Claire and Sophia; one great grandchild, Jacob; and his brother Richard (Minette).

In 1969 he was appointed as a Circuit Court Judge and elected to a 15 year term in 1970 and a second term in 1986. History records him as the 34th judge in the 7th Judicial Circuit. As a circuit court judge he handled numerous high profile cases , but history will remember him for serving on the panel of Judges that disbarred former Maryland Governor and United State Vice President Spiro Agnew.

Judge McCullough is most remembered as the “Quiet Leader” of the Circuit Court for Prince George’s County, Maryland and the 7th Judicial Circuit ( Prince George’s,Calvert, Charles and St. Mary’s Counties). As the County Administrative Judge and Circuit Chief Judge, he successfully managed the growth of a court serving the 600,000 + residents of the county from 9 judges in a 50,000 square foot building to 20 judges in a 400,000 square foot multi-court complex with over 25 court rooms. A steady stream of judges, county officials and lawyers made their way to his Chambers seeking his wise counsel and leadership. Judge McCullough was never one to insist on being addressed as “Judge” and would always encourage folks to just call him Bill- except in the court room, of course.Socially, Bill and his wife Vi were sought after company for their joy of life and friendship. Bill earned his title of “twinkle toes” and “ol’blue eyes” while a child and in the Navy, but those traits followed him to the courthouse.

Judge McCullough was a mentor and teacher to his less experienced colleagues on the court and members of the bar – especially his law clerks of whom he took great pride. His law clerks – now all very successful lawyers and leaders themselves are – Jo Benson Fogel, Esq. 1969/1970; Alan Edward D’Appolito, Esq. 1970/1971; James G. Nolan, Esq. 1971; Thomas R. Callahan, Esq. 1972/1973; R. Brooke Bortner, Esq. 1974; Iris Aberbach, Esq. 1976/1978; Richard E. Schimel, Esq. 1978/1979; Andrew R. Polott, Esq. 1979/1980; Claudia Z. Springer, Esq. 1980/1981; Mary Eno, Esq. 1981/1982 ; Samuel J. DeBlasis, II, Esq. 1982/1983 ; Gregory K. Wells, Esq. 1983/1984 Kenneth F. Eichner, Esq. 1984/1985; Christopher Costabile, Esq. 1985/1986; Josephine Lynch, Esq. 1986/1987; Michael A. DeSantis, Esq. 1988/1989; Rita Kaufman Grindle, Esq. 1989/1990; John A. Bielec, Esquire 1991/1992; Melissa Ann Miller, Esq. 1992/1993; John T. Bergin, Esq. 1993/1994; George R. H. Johnson, Esq.1994/1995.

Remembrances of some of his clerks; Sam DeBlasis II – “Law school taught me the basics about the law but Judge McCullough established for me a foundation to be a lawyer, a good lawyer”; Jo Benson Fogle – “My stories of his wonderful sense of humor masked when necessary by his perfect judicial demeanor, his ability to deliver a 20 page opinion with findings of fact in full grammatically correct sentences from the bench with 1 page of notes, and his ability to raise the level of performance in whatever his endeavors, always come back to something about me and what I observed.”

Upon his retirement Judge McCullough was provided a book celebrating his service and life and authored by Bill Butler the Court Administration Facilities Manager. In that book some of his colleagues comments reflect his everlasting impact on the court, the bar and the community.

Judge Jacob S. Levin( Ret.) – “The only thing I never understood about him – and this comes as a complete mystery to me- is that here is a man who has fought in our Fighting Navy during World War II and yet doesn’t believe in any type of cursing. Every time I would use a four-letter word in his presence, I either got a look or an admonition.”

Judge C.Philip Nichols – “ I’ve had the honor and privilege to practice before Judge McCullough and to have the opportunity to sit with him as a judge of this court. He’s always brought the best of temperaments, the keenest of intellects and good judgment to every case he was assigned. I especially remember his kindness to me as a young lawyer in an extremely difficult rape case that I tried twenty years ago as a defense attorney. He was generous enough to remind the jury that a lawyer has a high calling, and the professional obligation to fully represent the interests of a party before the court no matter how difficult the facts.”

Judge Darlene G. Perry (Ret.) – “ Bill McCullough, as a lawyer, enjoyed a reputation for his honesty, his kindness,his collegiality and his hard work on behalf of his clients. As a judge he was emulated by all of those aspiring to be a judge and was a diffuser of controversy, voice of reason, and a leader by all who came in contact with him. Bill McCullough enjoys life. He loves a party. Quick to laugh, he doesn’t let a bad back stop him from dancing or playing golf. He has a quick wit and the ladies refer to him as “Ol’ Blue Eyes”and “Twinkle toes”, probably because of that ever-present charm and his dancing ability.”

Judge Steven I. Platt ( Ret.) – “The things I learned from Judge McCullough – His humor; his warm personality;his ability to see through almost every situation and get to the heart of it and understand what motivates people; and the ability to apply the law in a common sense manner that takes into account both the effect of the law, and what the judge does, on the people before him.”

Judge Richard H. Sothoron, Jr. ( Ret.) – Consistency was always a strong suit of Judge McCullough’s in that his rulings were fair, his impartiality unrefuted and his dedication to the role of a Judge unquestioned. As a lawyer and a judge his temperament was that of a considerate and well mannered counselor whom the entire bar respected. And it was this respect that set him apart form others.

I remember Bill McCullough, the lawyer , as a principled lawyer. He wouldn’t make an argument on the law unless the law clearly supported it. He wouldn’t make an argument on the facts unless the facts clearly supported it. He would not cut corners to achieve a result for his client. He had a clear concept of justice, of fairness, truthfulness and credibility…and he made his clients conform. If they fell short of it, well, he’d help them deal with the consequences;but he would not change his advocacy to conform to their shortfalls.He was the glue that held together families , the communities and the people he represented. Good judges are made of good lawyers and good lawyers are made of good people.