Case Evaluation for Settlement

February 2011
By Judge Jerome LaBarre, Multnomah County Circuit Court.

The chorus of a great song says it all: "You've got to know when to hold 'em - know when to fold 'em - know when to walk away - know when to run...."*

So it is with making important decisions about cases in litigation. At every stage the case needs to be sized up and pivotal decisions made. The big one is: "Do we settle now and for how much?"

But first evaluation must occur. Since the late 1990s, I have had the best view in my courtroom looking at cases that are winners and losers. Before that, for many years I had the more limited view from counsel table. Out of all of this involvement in cases, I have created my own personal list of the sequence of steps I believe are best to evaluate a tort case. Sometimes the evaluation is right at the front end. Sometimes it is on the eve of trial. These are the first questions I ask myself:

  1. How Serious is the Injury and what are the Provable Damages?

    At first it seemed counterintuitive to start with damages. After all, liability is the big emphasis in law school. And most of the early work on a case in litigation focuses on the whether or not you can prove liability. But if a plaintiff's attorney has a case with big damages then frequently even a weak liability case can have significant value. Again and again in trial I see attorneys who forget that it is the amount of damages that the jury must enter on the verdict form that really decides if it is a win or a loss. Too often the damages proof is the poor cousin of the trial presentation.

  2. Who is the Plaintiff?

    Two of the great moments of truth in a jury trial are: 1) when the plaintiff and defendant are introduced to the venire along with their attorneys at the start of jury selection; and 2) when the plaintiff gets on the witness stand and tells the jury about herself. The jury is always watching very carefully at these times. And they should. After all, the plaintiff's side of the case is trying to convince 12 citizens from our community of the righteousness of the cause and sell them on awarding a large amount of damages. It is always surprising to me how intimate this process becomes. If the plaintiff is deserving and sincere, that comes across and is powerful. If it's the opposite, then the defendant has a serious advantage.

  3. Who is the Defendant?

    Drama takes place inside of courtrooms. True, the jury is given an instruction of law not to let bias, sympathy or prejudice enter into their deliberations and verdict. Still, we all have human emotions, just as it matters whether or not the plaintiff is sympathetic. It also matters how appealing or unappealing is the defendant. I have seen this translate onto the verdict form in significant ways.

  4. Where is the Liability?

    Obviously liability matters. This is the field on which most of the action in litigation plays out. Even if all of the other factors are strongly present there still must be a case that can survive summary judgment and a motion for a directed verdict. By all means a plaintiff's lawyer should drill down deeply on liability. But also make sure that the other components of the case are in place when you are evaluating winners and losers.

Oh yes. The chorus of the song also ends: "...You never count your money when you're sitting at the table. There'll be time enough for countin' when the dealin's done."

* From "The Gambler" written by Don Schlitz.