“What’s my case worth?” and “Can I make the other side pay my legal bills?” are probably the two most commonly asked questions of trial attorneys. This e-newsletter answers the first question. The next will answer the second.
The value of a case is based on two factors: liability and damages.
A. Liability
Liability is about whether you have a winning case. If you were hit by a car while sitting in a parked vehicle, you have a winning case. In legal parlance, you can prove liability, you can show that the other driver was at fault. If you are bringing an employment discrimination case and you can prove you were fired because of your race, you can prove liability. If, on the other hand, you have no evidence of discrimination, you won’t be able to prevail. In legal terms, you won’t be able to establish liability.
B. Damages
The concept of damages speaks to the total monetary value of your losses, regardless of liability. In a personal injury case, your damages are not just your medical bills; your damages include the value, in dollars, of all the pain and suffering the accident caused you, plus your present and future lost earnings and earning capacity. If you got in an accident and were horribly injured, your damages may be astronomical. If you walked away unharmed, they won’t be.
In a commercial case, like a breach of contract action, the non-breaching party does not suffer much in the way of monetary damages if, for instance, it immediately finds another company to fulfill the deal. On the other hand, if a company purchases defective computer programs which corrupt its data, its damages may be enormous.
C. Assessing Value
Now, it is of course true that you need both liability and damages. You need liability because without it, you can’t win. You need monetary damages because without them, you may win but you won’t recover any money.
In most cases, however, liability and damages are unclear. Whether you have a winning case generally boils down to a question of who is believed, you or your opponent. If you think about it, that makes sense. In most motor vehicle cases, the drivers give differing versions of the accident, each claiming the other was at fault. In most commercial cases, each party claims the other breached the deal. Who wins depends on who is believed.
Damages are often not clear cut, either. In personal injury cases, for instance, the monetary value of pain and suffering is subject to opinion.
The real expertise in evaluating cases lies in the ability to appreciate the range of values a case may have, and in being able to use that information to design case strategy. The right attorney will be able to do both.