5 What Are My Chances in Litigation?

Bernard had thought that his lawsuit was a sure thing going in. Now, Bernard was no longer so sure. When Bernard first met with his attorney, the attorney had told him that from what Bernard said, he had a strong case. But the attorney had also cautioned that every story has another side and that they might learn things in the lawsuit’s course that they did not know and that could change their assessment. And boy, had that ever happened. Surprise documents and even more-surprising deposition testimony had turned Bernard’s sure thing into a coin flip. Bernard could now see that his lawsuit could go either way, for him or against him. Bernard’s only solace was that his attorney didn’t seem fazed. Indeed, his attorney had said not to worry because it generally went that way.

Probabilities

Your likelihood of winning your lawsuit or losing it is one way of looking at whether you should proceed with filing a lawsuit. Your chances of prevailing are also a way of measuring how you should proceed with your lawsuit once you file it, to account for both the opportunity of winning and the risk of losing. Clients ask their lawyers about their chances all the time. Some attorneys hesitate to give specific predictions. Litigation isn’t exactly a science. It can be more like art, hard to grasp precisely and harder to predict. Attorneys may thus speak more in generalities, telling their clients that they have a strong or weak case or, right in the middle, a coin-flip case. As the above brief story reflects, a party’s probability of prevailing can change quickly with the discovery of surprising new evidence and with court rulings, changing witness accounts, and even changes in a party’s financial or medical condition or other circumstances. 

Predictions

If only parties had a crystal ball to predict a lawsuit’s outcome. Then, we would not have to go through the time, cost, and trouble of a lawsuit. You should want to know whether you have a strong or weak case, and your attorney should be able to help you evaluate. Predictions can help you decide whether to file your lawsuit, whether to settle your lawsuit, and the terms on which to settle. Listen to your attorney’s evaluation. But the outcome of your lawsuit is likely to be either one way or the other, a win or a loss, never mind predictions. Looking back, the probabilities and predictions won’t have mattered. You’ll be celebrating or ruing the result, one way or the other. Thus, don’t overly rely on predictions. Make up your mind to proceed or not proceed, and prepare to live with your decision no matter the outcome. Once you proceed, either way, with or without filing your lawsuit, you generally have no opportunity to go back and do it over again. 

Discounting

As briefly suggested in a prior chapter, one way that parties sometimes evaluate their case is to discount its full value by the chance of prevailing. Thus, if you had a claim worth exactly $100,000 if you win it, and you evaluate that your chances of winning are 90%, you might value your case at $90,000. Conversely, if you had the same claim but only a 10% chance of prevailing, you might value your case at just $10,000. And if instead you had a 50/50 chance of prevailing, you might value your case at $50,000. Your discounted valuation might help you decide what figure to demand in settlement, what settlement offer to take, and even how much money and time to put into the case for the return you expect. You wouldn’t, for instance, spend $20,000 in attorney’s fees on a case you valued at only $10,000, at least not wisely. But you’d probably spend at least $20,000 in attorney’s fees on a case you valued at $90,000. If you have a contingency-fee attorney, your attorney is making the same judgment as to how much time and expense to put into your case. Consult your attorney about how your attorney discounts and values your case, so that you know how to control the time and resources you put into your litigation. 

Damages

It’s not only the probabilities of prevailing that may be highly uncertain. The damages figure in your case may also be in dispute. Personal-injury cases, for instance, attempt to award money in exchange not only for economic losses like medical expenses and lost wages but also non-economic losses like pain and suffering. One jury might award $1 million in the same case in which another jury would award $10,000. Damages evaluations can be that far apart. Even in a breach-of-contract case involving purely economic loss, parties can dispute the quality or quantity of the goods, the time of delivery, or other particulars, injecting uncertainty into what looked like a clear contract damages figure. Thus, when evaluating your case, give good thought to the certainty or uncertainty of your damages. Don’t assume that you’ll receive from the judge or jury the pie-in-the-sky figure that you project. You might instead receive the very conservative damages figure that the defendant will likely argue is the correct figure, if the judge or jury are to award any damages at all. Consult your attorney as to the probable damages range in your case. 

Compromise

Compromise can be a significant part of litigation. Cases are seldom entirely one sided. Nearly every case involves some argument for at least somewhat reducing the demands that the claiming party makes, while increasing the offers that the defending party makes. The costs of the litigation alone are enough to consider paying more, if you are the defendant, and taking less, if you are the plaintiff, no matter how you evaluate the probabilities of a win or loss, or how you calculate damages. Compromise, though, is usually the big consideration in settlement, not in the trial and outcome of a case that you cannot settle and must instead litigate all the way through court. Judges, especially, must follow the law when making decisions and awarding damages. Juries may make compromise damage awards to reach the supermajority that law generally requires for a civil verdict. But neither judges nor juries discount damage awards by the probability of prevailing. Judges and juries decide, one way or the other. Cases that go to trial generally produce big wins and big losses, not compromises. 

Evidence

When attorneys evaluate a case, they generally first think of evidence. To file a lawsuit, attorneys are supposed to have both law and facts to support the lawsuit’s claims. The party and attorney who file a lawsuit without evidence can face court sanctions for a frivolous filing. You must have evidence supporting each element of your claim, if your claim is going to reach the judge or jury for a decision. Without evidence on each element, the judge should dismiss the claim. Evidence is generally either witness testimony or documentary evidence, especially business, medical, personnel, academic, or other records and reports. If, for instance, you have a personal-injury claim for a motor-vehicle accident, you’ll need witnesses or exhibits to prove the other driver’s negligence and the extent and cause of your injury. For witnesses, you might call yourself as an eyewitness and the police officer who investigated the accident, an employer representative as to your wage loss, and your physician as to your injury and prognosis. To evaluate your case, consider the weight and credibility of your evidence against the other side’s evidence. Ask your attorney on which claim and element is your strongest and weakest evidence, and what is the overall evaluation of your case. 

Factors

Other factors beyond the strength or weakness of your evidence can play into the evaluation of a lawsuit. Jurors are supposed to decide cases on the law and evidence. But jurors are human, too. Sympathy and compassion can sway jurors. A seriously injured breadwinner, child, or homemaker can look needful and deserving enough to overcome a weak liability case. An especially engaging or winsome party, attorney, witness, or expert witness can sway jurors, too. Conversely, a gruff, coarse, rude, or unlikable party or witness can lose juror respect and, with it, lose a winnable case. Jurors can also need a case to have a compelling theme and understandable story. Long, dry, complex, hard-to-grasp presentations without any memorable hook may have all the facts in the world but no framework on which to hang them. If you lose the jury’s attention, you lose the jury. Listen carefully to your attorney to see if you can clearly identify your lawsuit’s compelling narrative and evocative theme. Your case may seem real enough to you, but your presentation must reach and move the judge or jurors. 

Law

The law applicable to your case can also play into your chances of prevailing. Law sometimes presumes certain things, helping your case along. Law presumes a child born to a married couple to be the husband’s child, not the child of a man from outside the marriage. Law presumes a document deliberately destroyed by a party, who knows that the document is material evidence in the litigation, to favor the opposing party. Law may also presume a record kept in the regular course of business to accurately reflect the matters it states. Law also establishes the proof standard, harder to meet in some cases than in others. While the plaintiff party must prove most civil claims only by a preponderance of the evidence, meaning more likely than not, a plaintiff may have to prove fraud, punitive damages, a civil commitment, or withdrawal of life support by clear and convincing evidence. And some claims are just easier to prove than others. Negligence, for instance, can involve any departure from reasonable care, when reasonable care itself depends on what jurors determine is ordinary and reasonable under the particular circumstances. Malpractice, by contrast, generally requires expert testimony of a departure from the established medical custom, a much more difficult fact to prove. Ask your attorney’s evaluation of just how hard or easy your case is to prove. 

Procedure

The procedures your lawsuit goes through can also affect its evaluation. Simply getting your lawsuit to court can itself be a big step, especially locating an attorney to represent you. Then, the complaint that you file must withstand scrutiny. If the defendant challenges it as lacking legal merit, the court can dismiss it. Surviving such a motion proves that you’ve stated a valid legal claim. Yet the defendant can also challenge whether you have evidence to support each element of your claim. Surviving a motion challenging whether you have evidence means that your case is going to trial. Clearing that last procedural hurdle can substantially increase the settlement value of your case because it means that your case is up to the jury to decide, if your case is a jury triable case, or for the judge to decide on the evidence, if neither side requested a jury or the case is not a jury triable case. Many cases do not settle until the defendant has challenged the case through these procedures. Surviving them means your case has triable value. Consult your attorney regarding the value of your triable case. 

Justice

Ultimately, though, your case’s evaluation depends on whether it resonates with justice. Your case may have to meet challenging legal requirements, in an uphill battle. Your case may have only a single compelling witness testifying against a slew of lesser witnesses. Your case may have only a single smoking gun document to support your case. Your attorney may not be the most expensive or most famous, nor even the most skilled nor most experienced. Your attorney may tell you that you barely stand a chance. The judge may not even like your case. But if the jury sees justice in your cause, they may do the right thing and give you a verdict that vindicates your every claim. Some lawsuits can go up against all odds and yet still prevail. And that is the beauty of justice. Justice may stand up for you when everything else fails. Listen to your attorney’s evaluation. Be wise. Yet stand up for yourself if you believe in the justice of your cause. Sometimes, a winning case only takes a committed party.

Reflection

What do you believe the probabilities are that your lawsuit will prevail? How does your attorney evaluate your case? If your case involves a request for damages, what value do you put on your case after you discount your damages by the percentage probability of prevailing? On what issue is your evidence the strongest and on what issue is your evidence the weakest? Does your claim translate emotionally? Does your claim tell a clear and credible story? Or is your case instead especially complex from a legal or factual standpoint? Are you prepared to have your opposing party test your claims with pretrial motions to dismiss them, so that you do not get to present your case at trial? Do you have something about your case that would make jurors want to see you prevail as a matter of justice? 

Key Points

• Listen to your attorney’s evaluation when deciding how to proceed.

• Listen to predictions of outcomes, but predictions are uncertain.

• Evaluate a case by discounting damages by the probability of winning.

• Consider the full range of damages when evaluating your case.

• Compromise is common in settlement, not in trial outcomes.

• Evaluate your case by the strength or weakness of your evidence.

• Other factors like emotion and affinities can influence your case.

• Some legal claims are harder to prove or defend than others. 

• Getting past pretrial procedures can increase a case’s value.

• The justice of your cause may carry the day against other challenges.

Read Chapter 6.