Communicating With Clients About Valuation Expectations
We have all been in a situation where a fair, equitable offer is extended by the other side and our client refuses to accept. The familiar responses—"I want my day in court," and, "I won't settle unless I walk away with X"—are predictable and all too common. Despite our efforts to educate our clients on the risks of rejecting a settlement and proceeding to trial, it can seem impossible to convince a stubborn client that he or she is making a poor decision.
Valuing a personal injury case is an arduous and uncertain task. Convincing a client that his or her case is worth significantly less than he or she believes is even more challenging. The majority of personal injury cases do not have enough value to retain a professional focus group.
Advising our clients when to settle and when to push forward is a frustrating process. The risk of trying a case is a gamble that many lawyers are reluctant to take, yet so many clients are eager to have the opportunity to present their case to a jury.
Deflating unrealistic expectations is one of the more challenging aspects of litigation. We all have our own individual strategies for advising a stubborn and unreasonable client.
Pennsylvania Rule of Professional Responsibility 1.2 says in part that "a lawyer shall abide by a client's decision whether to settle a matter." Of equal importance, lawyers also have the obligation to make sure that our clients are making a fully informed and educated decision when the time comes to discuss possible settlement.
Talk Value Early
Discussing the value of a case with a client early can be effective in tempering high expectations at an early stage. The conversation about case value may be premature if a client is still receiving ongoing medical treatment and the prognosis and need for future treatment are uncertain.
Many clients are aware of large verdicts from friends or media outlets and have a pre-existing perception, so they assume that every case is exponentially more valuable than it really is. There is often a perspective and predetermined mindset of personal injury plaintiffs that it is easy to get a high verdict at a jury trial. If you have tried cases, you know that the opposite is more often true.
Discuss Weaknesses and Present Risks
Unfavorable facts—such as an unfriendly county, minimal property damage, lack of objective findings on diagnostic testing, limited tort election, pre-existing injuries and minimal specials—should be discussed as early as possible. A client needs to understand how unfavorable facts could negatively influence a potential juror's view of the case at trial.
One of the most precarious risks of going to trial is an unfriendly county. The counties surrounding Philadelphia have generally been more defendant friendly in personal injury and medical malpractice cases. In 2012, there were 19 medical malpractice cases tried to verdict in Montgomery County. All 19 cases tried ended in a defense verdict, according to the Unified Judicial System of Pennsylvania's website. A client should be aware of statistics like those, and sharing personal experiences of trying cases in the respective county helps to educate a client on the potential for an unfavorable outcome.
Knowing the history of verdicts in a particular county is important. I always explain to a client that an insurance company looks at a case very differently than the client. The interest of a third-party insurance company is based on numbers. Insurance companies often do not care about the actual individual client and how his or her life was affected by a particular injury. Their computer systems consider factors such as the county, the diagnosis, the length of treatment and the age of the client. Insurance companies expect to lose at trial every so often. That risk is factored into their yearly accounting. A disabled individual cannot afford to lose a case at trial and potentially leave tens of thousands of dollars or more on the table.