How much is my medical malpractice case worth?
This question is a very important one. In our civil justice system money is the only thing clients can recover and money is often the only difference between whether their family survives or thrives following the catastrophic injury or death of a loved one. Still, it is a question that even we lawyers sometimes hesitate to answer because the factors that determine value are often hard to pin down with any accuracy, especially at the beginning of a case.
Telling a Client’s Story
I often do not discuss a specific dollar amount until the case matures to settlement or trial stage. Nonetheless, I do explain at the outset the factors that influence value. When I first meet with my clients I tell them that all medical malpractice cases are stories, but to be a good story it must have the following elements: a likable protagonist, an unlikable opponent, and a loss a jury can do something about.
The protagonist is, of course, the plaintiff and whether they are likable depends mostly on whether they are perceived as vulnerable. Vulnerability is critical because everyone knows what it’s like to feel vulnerable even if they haven’t experienced the exact loss the plaintiff has experienced. Vulnerable plaintiffs, then, bring forth the holy grail of emotions in litigation: empathy. No juror ever votes in favor of a plaintiff without empathy. Vulnerability is most evident in people who are trying hard to overcome a serious loss but need help in doing so. Minor injuries, whininess, exaggeration, and anger are all examples of characteristics possessed by unlikable plaintiffs because these characteristics communicate the opposite of vulnerability. The more genuinely vulnerable the plaintiff, the more valuable the case.
By opponent I mean of course the defendant-the person or entity being sued. By being unlikable, I do not mean that the opponent has to be Osama Bin Laden. I mean that they act or speak in a way that shows they don’t care. A doctor who doesn’t return calls or a hospital that uses paramedics in triage because it’s cheaper than using nurses are examples of uncaring-and therefore unlikable-defendants. The reason this matters is because jury verdicts not only compensate the plaintiff but also communicate outrage to the community; that is, they are statements to the world that such conduct will not be tolerated. The more uncaring the defendant, the greater the outrage; the greater the outrage, the greater the verdict.
When a plaintiff’s story is told well the jury will want to make them whole. They want to help them so that they can move past their tragedy successfully. A good lawyer will know the elements of a good story and be able to use them well. This is how we help our clients move forward with their lives and cope with their future.