Pushing Past The Glamour Of Trial: The Quiet Skill Of Potential Case Evaluation

For the plaintiffs' lawyer, evaluating a potential case isn't always easy, but it's extremely important.

Americans are fascinated by the concept of the jury trial. Movies and television shows are made about the lives of fictional lawyers who participate in these increasingly rare events. The worlds of bankers, accountants, and a host of other professionals just don’t seem to pique a similar interest level.

As a result, the lawyerly skills associated with trying cases have become overly glamorized. The passionate opening statement. The aggressive cross-examination. The climactic closing argument. For many outside of our profession, such skills depicted in a two-hour movie become the measuring stick of a good lawyer. Even within our profession, we have legions of “trial groupies” who perpetuate the glamorization of such skills.

Trials are great. Jury trials are even better. In my opinion, jury trials are the single most exciting part of our job. They can become wildly addictive. But there are an infinite number of lawyerly skills that are equally important and are practiced with significantly less fanfare. For the plaintiffs’ lawyer, one such skill is potential case evaluation.

It is said that the profitability of a plaintiffs’ firm hinges on the cases it rejects more so than the cases it accepts. Even the best trial lawyers around cannot change the facts of a bad case. Bad cases taken on a contingency fee basis set plaintiffs’ firms back. Heavy dollars are invested in such cases with little to no return. The risks associated with a contingency-fee practice require plaintiffs’ lawyers to carefully screen potential cases.

Evaluating a potential personal injury plaintiffs’ case is an exercise in attempting to predict the future. The plaintiffs’ lawyer is called upon to predict the likelihood of success on liability. She must analyze what, if any, fault may be attributed to the plaintiff for the accident that led to the injury. She must predict the extent of the plaintiffs’ damages that will ultimately be recoverable. She must anticipate any peripheral issues surrounding the plaintiff, the defendant, or the accident that may affect the outcome. This calculus must be performed before a decision can be made on whether to take a potential case.

Plaintiffs’ cases rarely morph into something better than they appear when first presented to a plaintiffs’ lawyer. Such cases typically get at best, more complicated, and at worst, more treacherous, as additional information is uncovered. The best plaintiffs’ lawyers know how to flush this information out during the evaluation process as opposed to the litigation process. The ability to flush such information out during the evaluation process is a quiet lawyerly skill that is no less important than the more flamboyant trial skills.

The timing associated with gathering such important evaluation information can be an obstacle that must be overcome by the plaintiffs’ lawyer. Contrary to popular opinion, most seriously injured plaintiffs do not rush out and hire a lawyer in the days immediately following a serious accident. Many plaintiffs mull over hiring a lawyer for months before actually reaching out to one to begin the evaluation process. As a result, information that may have been more easily obtained immediately after the accident is now gone or is much more difficult to obtain. Likewise, the evaluation process must often take place in a more compressed time period because of looming statute-of-limitation issues that arise because of the plaintiffs’ decision to delay consulting a lawyer. Finally, the plaintiffs’ lawyer must deal with the pressures associated with the potential client’s desire for quick answers to complicated issues. While potential case evaluation is critical, the last thing that the plaintiffs’ lawyer wants is for a client with a good case to seek representation elsewhere because the client feels that a timely evaluation is not being performed.

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Identifying and accessing the most critical information needed for good case evaluation can be equally difficult. Witnesses to an accident can be tough to locate. Even if located, many such witnesses are reluctant to speak with lawyers. Documents needed to investigate the issue of liability can be difficult to obtain without the discovery tools afforded the parties after suit is filed. The plaintiffs’ lawyer must decide whether to incur the expense of an expert in evaluating liability in a potential case. Pre- and post-accident medical and wage records are often needed to accurately assess the damages. The plaintiffs’ lawyer is at the mercy of the plaintiff’s memory in identifying medical providers and employers from whom to request records. Obtaining and analyzing such records takes additional time that may again conflict with the plaintiff’s desire for quick answers in the face of a looming statute-of-limitation deadline.

In addition to navigating through the external obstacles of timing and information gathering in evaluating a potential case, the plaintiffs’ lawyer must also navigate through her own internal issues that may lead her to accept a bad case. It can be difficult to turn away potential plaintiffs with sad stories that do not have viable cases. It can be difficult to resist the competitive temptation of accepting the case of someone whom the plaintiffs’ lawyer believes was wronged without accumulating sufficient information. But potential case evaluation requires such temperance.

Mastery of the quiet skill of potential case evaluation is critical for those lawyers who sustain themselves on contingency fees. Jury trials are great. But jury trials with good cases are even better.


Jed Cain is a trial lawyer and partner with Herman, Herman, & Katz, LLC in New Orleans, Louisiana. Jed writes about family, the law, and Louisiana current events at Cain’s River. He can be reached by email at jcain@hhklawfirm.com.

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