Decision Tree Analysis of Personal Injury Cases

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Many variables affect the evaluation of a personal injury case. You may prevail on some issues, but not on others. Because you must consider a variety of trial outcomes, you will need to develop a range of values. One way to do this is by decision tree analysis.

A decision tree is a graphic illustration of various possible outcomes. For each issue, there should be a branch going one way for a positive result and the other way for a negative result. This process can get complex, but don’t overthink it. There are rarely more than five crucial issues in any case.

Here is a simplified decision tree:

Decision Tree Analysis

If the plaintiff cannot prove liability, the case has no value. Often, questions of comparative fault can arise. Was plaintiff partially responsible for this outcome? Perhaps there are other entities to which responsibility can be assigned who may not even be part of the lawsuit. In the illustrated case, if the plaintiff can prevail on liability and show the defendant bears all responsibility, plaintiff can expect a valuation of a million dollars.

But what if the jury believes that the plaintiff or someone else bears some responsibility? What if the parties disagree about the calculation of the damages? Based on a review of the facts and the different positions parties have taken in the history of the litigation, you can define those areas and assign a value for each outcome. You come up with that value using the methods described in the prior chapters.

Inevitably, you are more likely to prevail on some issues than others. This decision tree shows five possible outcomes. But do they each have a one-in-five likelihood? You can produce a better evaluation tool by weighting which outcomes are the most likely. Here is a simplified weighted decision tree analysis for the same case.

Weighted Decision Tree Analysis

Now we have a better guide to making a settlement decision. Litigators frequently ponder, “If you tried this case ten times, how many times would you get your best possible outcome?” This chart shows the estimates for a specified result.

One time out of ten, the defendant will win, and the plaintiff will get nothing. This result is called a “take nothing” or that the case was “defended.” Three times out of ten the plaintiff is projected to show full liability, but in only half of those cases will plaintiff be able to prove up damages sufficiently. According to this chart, the most likely result is that plaintiff will be able to show the defendant is 50% responsible.

Settlement Statement Shows the Net Result

A settlement statement is a document plaintiff’s attorney prepares to demonstrate how the money received from the defendant is being allocated and the remaining amount the plaintiff will receive. At the time of this evaluation, $100,000 has been spent to prepare the case. If plaintiff accepts a $300,000 settlement today, the likely settlement statement will look like this:

Attorney Fees (1/3) $100,000.00
Legal Expenses $100,000.00
Net to Plaintiff $100,000.00
$300,000.00

Going to trial is expensive. Each side must pay to prepare exhibits and for experts’ time. Here plaintiff’s legal expenses to go to trial are estimated at $300,000. If the plaintiff obtains the higher likely result of $500,000, the settlement statement will look like this:

Attorney Fees (1/3) $166,666.66
Legal Expenses $300,000.00
Net to Plaintiff $ 33,333.34
$500,000.00

In this scenario, plaintiff would be better off negotiating a settlement of at least $300, 000, which would still be a bargain for the defendant. Not only would the defendant end up paying at the low end of the possible verdict range, but defendant would also be avoiding its expense of a trial, probably also about $300,000. This deal would be what’s known as a “win-win” settlement.

Is there a chance that plaintiff will be entirely successful and get the full million dollars? Sure, but your evaluation tells you that the chance of that result is only 15%. If a settlement offer comes within the zone of the most likely outcome, are you willing to throw it away and possibly become indebted for additional legal expenses on a 15% chance of success?

If you do have a favorable settlement, what will usually occur then is the payment to you will be done through a structured settlement. Doing so is for not only your benefit but for the interest of the insurance company or defendant. Usually, agreeing to a structured settlement will give you a higher settlement figure since you agree to accept the payments over time, instead of with a lump sum. Of course, your attorney will give a recommendation, but often attornies have deals worked out with settlement companies which may not be in your best interest.

Do your homework first as you hired an expert attorney to represent you and you also want an expert serving you for the structured settlement you are about to receive.

Decision tree analysis can help you make better rational decisions about how to negotiate an agreement.…

Personal Injury Focus Groups and Mock Juries

Personal Injury Settlements

Jury consultants are professional researchers who will predict how jurors will perceive your case. They will also opine on the characteristics of the ideal and worst jurors you might choose or reject. Jury consultants are expensive; historically, lawyers only used them in multi-million dollar cases. But more reasonably priced options are now available.

Focus Groups

To create a focus group, the consultant gathers a group of people chosen for characteristics likely to reflect the jury pool. These include race, gender, and age, but may also include other features. For example, one 2012 focus group study drew conclusions about how Tea Party adherents were likely to affect jury deliberations.

Once the group is assembled, it hears a presentation of the case. The range of formality can vary from one person talking about the case to an attorney examining an actual witness. The goal is to discover how people react to the story of the case, the attorney, and specific witnesses, primarily the plaintiff and defendant. Besides learning which profiles are favorable or unfavorable, the study will disclose the group’s evaluation range.

Participants in a focus group are carefully chosen—quite different from gathering the opinions of friends and neighbors. Sometimes plaintiffs fixate on a value based on a story told to a friend or neighbor, refusing to consider other evaluations. This obstructs reasonable and meaningful negotiation. It can lead to a take-nothing result.

Mock Juries

Mock juries are full-blown dress rehearsals for a trial. Actors are hired to play the part of the other side’s witnesses. Mock trials often take place at a law school; some jury consultants have their mock courtrooms. Mock jurors are recruited who will mirror the likely composition of the real jury. They render a mock verdict and stick around afterward to explain it. Mock jurors can describe their reaction to issues and witnesses and explain the deliberation process. Organizing and staging the mock trial is very time-consuming and very expensive.

The upshot of a mock presentation is that the attorneys and clients have a pretty good idea of what will work and what won’t. They may change tactics to improve the chance of success. They may adjust their thinking about the value of the case.

Internet Options

Several vendors offer comparatively inexpensive focus group and mock jury results. Examples include ejury.com, onlineverdict.com, and jurytest.net.

The party using the service submits a written explanation of the facts and law. Photos, diagrams, and audio and video clips can be included.

If your case is pending in a good-size city, jurors will be drawn from your geographic area. Otherwise, the service will strive to put together a demographically representative panel.

The jurors individually (not together) review the submission and submit their verdict, including comments. You will receive a report showing what percentage voted for plaintiff and what percentage for the defense, as well as the dollar amount each juror would award. You will have information on how jurors voted categorized by gender, income, and age. The report will include jurors’ comments on why they voted as they did, including what information would have changed their minds.

Plan ahead. Turnaround time for the report can be as fast as overnight or as long as several weeks. Turnaround time depends on how long it takes to assemble the jury. Submissions for cases in populous areas will see faster turnaround times than for cases in smaller towns or rural areas.

With some services, for an additional fee you can also get help from the service’s consultants. Based on the jurors’ decision, the experts can suggest ways to re-shape your presentation for the best result. They will help you better understand what worked, what didn’t, and which issues you should stress or downplay.

This electronic alternative has several drawbacks, such as that jurors are not able to assess witnesses’ credibility. Presenting facts as straightforward when the real witness may not be able to tell the case story believably skews the result.

Some people become professional electronic jurors who can lead to bias. Attorneys usually choose jurors who come to the process with an open mind. If a juror, real-life or virtual, has judged other cases, comparisons are inevitable. So if a juror thought a prior case with an injury worse than yours was worth, say, $25,000, that juror would be psychologically unable to award more for your injury. The outcome of your case can be hurt by comparison with a badly-presented case. The opposite is also true; if a juror saw a previous stellar presentation, the juror might be more inclined to escalate the value of your injury to bring it in line with the prior case. However, you are not likely to be able to learn about the caliber of any presentation the juror previously saw.

Another drawback of the internet mock jury process is the absence of discussion among the jurors. An expensive mock trial simulates a real one; the jurors meet. In the jury room, differences in perception can be reconciled and jurors often persuade each other. The movie “Twelve Angry Men” illustrates this process. Juror communication is vital to securing unanimity or at least a majority, depending on the jurisdiction and type of case, necessary to produce a verdict. That won’t happen when jurors are working in solitude.…