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Case Evaluation

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.)

September 2005 – Accurate Evalution of Risk Saves You and Your Client Time and Money

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September 2005 – Accurate Evalution of Risk Saves You and Your Client Time and Money

Judge Arthur M. Monty Ahalt (Ret.)


The accurate evaluation of risk is one of the first steps to take when making a determination to file suit when settlement negotiations have reached an impasse; but the evaluation process should start early. If you start negotiating with your opponent before you go through a disciplined approach to evaluating the case, you start with a weak foundation. The key here is to start with a strong foundation.
The principles, which are set out here, are based upon my 38 years of experience as a trial lawyer (15), as a judge (17), and as a neutral case evaluator, mediator and arbitrator(6). As a Judge on the Circuit Court for Prince George’s County, I tried over 1,000 jury trials and handled over 10,000 settlement conferences.
If the case will ultimately end up in front of a jury, then you want to evaluate what a jury would award your client in the jurisdiction that you will file suit. If a Judge will ultimately hear the case, then you need to evaluate what a judge would award your client in the jurisdiction that you will file suit. Building a strong foundation will put you at a negotiating advantage with your opponent. It also serves three other strategic functions:
1. Protect you against a claim of malpractice.
2. Give you client control.
3. Allow you to have confidence in front of a Judge or jury.
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 overlook any. There are also 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 the value of a case until you know all of the facts which are relevant to the issues of liability and/or damages. Once you have accurately evaluated a case you can assess the risk of going to trial or making a decision to arbitrate a case.
Let’s look at two hypothetical cases.
First, the low impact rear end – soft tissue case.
Property Damage – $500
Emergency room – $300
Orthopedic evaluation – $500
X-rays – $300
Physical Therapy/Chiropractic Treatment 12 weeks – $3500
Last demand $10,000 – Last Offer $4000

Second, the clear liability shoulder injury (rotator cuff)
Successful surgery – $15,000
Physical therapy – $3,000
No permanency
Loss wages school teacher – $5,000
Last demand $80,000 – Last offer $30,000
Now in each of these cases settlement negotiations are at an impasse and you must decide whether to file suit or negotiate a high/low arbitration agreement. In each case you have concluded that you only have a 10% chance of achieving your last demand and your opponent has only a 10% chance of achieving their last offer. Further, you have evaluated the probable range of a verdict for the soft tissue case as $5,000-$7,000 and the shoulder case as $45,000 – $55,000.
If you are able to negotiate a high/low agreement of the last offer and last demand, arbitration would appear to be a clear choice; that is where VirtualCourthouse.com™ comes in. You can file your claim, select a neutral from a growing list of highly qualified neutrals and have a decision in a matter of days rather than months and years if you choose to file suit. Your VirtualCourthouse.com™ cost is $200 as opposed to your trial costs of $2,000 to $5,000. You cut your risk, your cost, your time, AND make your client very happy.
Using VirtualCourthouse.com™ for an arbitration, mediation or Neutral Case Evaluation, the parties accomplish the following on the Internet: (i) Agree on a neutral; (ii) Present the documents which support their case; (iii) Have access to an Online Case File; (iv) Schedule a face to face hearing (if necessary); and (v) Receive the Neutral’s Decision
The VirtualCourthouse.com list of neutrals is not only impressive, but growing.To see the growing list click here
Aaron E. Price, Sr.

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For further information contact;
Judge Arthur M. Monty Ahalt (Ret) Karen Pelton
410-263-6163 Director of Customer Service
amahalt@virtualcourthouse.com 301-655-1611karen@virtualcourthouse.com