Every attorney wants a “strong” case, but strength is a term that is difficult to quantify since it has several subjective variables. All attorneys agree that the elements of negligence are the most important factors in determining global strength since all strong cases are rooted in solid negligence theory. In other words, the probability of success primarily depends upon the ability of breach, harm, and causation to withstand the rigors of litigation. In a more general sense, strength means a favorable chance of prevailing with a minimal amount of risk. The greater the probability of success, and the lower the cost or risk of achieving it, the stronger the case. For plaintiffs, a strong case is one that is likely to succeed, at settlement or trial, with a high net return. For defense, a strong case implies a probability of victory or dismissal with the fewest dollars at risk. While the determination of strength is thus inextricably tied to both case theory and economics, there is a third factor that is mission-critical to case success: the trier of fact. Since a jury can derail even the strongest case, the role of the trier of fact must enter the calculus when contemplating case strength. Consequently, the three primary determinants of strength are case theory, economic outcome, and jury appeal.
Sound negligence theory is the predominant determinant of case strength. Either duty, breach, harm, and causation align for the plaintiff, or one or more tip the win to the defense. Given this mission-critical stature, it is imperative to meticulously and objectively explore each element of negligence from the outset. This process begins by securing and summarizing medical records for presentation to a medical expert. The expert has a far greater role than simply determining whether breach and causation exist. The expert will actually serve as the first objective starting point for determining case strength. Skilled litigators use this first interaction to observe and catalog important clues. For example, even though opinions must only be stated to a reasonable degree of medical probability, how certain is the expert about the findings? Is the case so solid that the expert will serve as an enthusiastic advocate for the case theory, or so soft that you will be busy educating the expert on the meaning of “more probable than not?” Beyond a global discussion of strength, take the time to candidly discuss the weakness of each element of negligence. A thoughtful discussion of contrarian views will readily expose case weaknesses and give insight into the opposing theory. In fact, understanding critical points of failure is perhaps the most objective ways to assess overall case strength. Given the pivotal role that experts play in assessing case strength, it is imperative to identify and select outstanding experts at the earliest possible opportunity.
Case economics are the second critical determinant of case strength and generally focus upon upside benefit and downside risk. For plaintiffs, the essential calculation is an estimate of net return — potential recovery minus costs for time and expense. Cases with a potential for high net returns, or those with modest returns but low cost, are inherently favorable. For defense, the risk of substantial pecuniary loss is the primary economic driver. For either side of the bar, a range of values for potential recovery (or loss) is easy to estimate based on prior experience, published verdicts and settlements, and general gestalt. Researching and considering such data serves as the basis for formulating a realistic assessment of this important variable. Beyond outcome considerations, hard costs are also a concern, particularly for plaintiffs. The predominant driver of costs is expert-related expenses. Typical hourly rates for experts range between $400 to $800, with higher costs for testimony and travel. Budgeting and controlling cost is important in all cases, but it is especially relevant in cases with modest risk and return.
The third key determinant of case strength is jury appeal — the intrinsic ability of a case to resonate favorably with the trier of fact. While many subjective factors determine jury appeal, the element of simplicity is perhaps the most compelling. The concept of simplicity does not mean that the medical details must be simple. Rather, simplicity means that the case theory can be explained and understood in a straightforward manner. When a case theory is so intuitively understandable that it takes a juror from “A” to “B” as a natural progression, then it has simplicity. The attorney’s role is to distill the core elements into their most basic form while the expert compellingly and succinctly explains the facts to the jury. This means that simplicity relies upon the intrinsic facts of the case and the way in which the story is told. When simplicity aligns with other subjective factors such as likability, empathy, and a juror’s desire to deliver justice, there is no doubt that a case has an abundance of jury appeal.
Case theory, economics, and jury appeal are independent and interdependent determinants of case strength. They are independent because any single variable — if taken to an extreme — will make a case irresistibly strong. For example, if a case economics are potentially astronomical, a plaintiff attorney may pursue it even when the case theory is not rock solid. Or, if a case is so intuitive that it is sure to resonate with a jury, then it may be worth litigating even if the economics are less than stellar. The concept of interdependence is best appreciated from an intuitive perspective with the three variables estimated on a scale from 1 to 10, and then added to give a maximum score of 30 points. Cases are always scored from a plaintiff perspective with a score of 30 indicating that a plaintiff case is off the charts in terms of anticipated success. A score of 16 or less tips the odds almost certainly to the defense. Here’s a Case Strength Score (CSS) summary:
- CSS ≤ 16: Critically flawed plaintiff case; optimal for defense.
- CSS 17-20: Plaintiff may cautiously explore; defense position favored
- CSS 21-23: Warrants plaintiff exploration; defense at moderate risk.
- CSS 24-30: Strong plaintiff position; maximal defense risk
Although lacking scientific validation, there is no doubt that a gut-level case strength analysis provides valuable and time-saving insight into a case’s integrity and strength. It’s a simple calculation that’s worth performing when considering the strength of your next case, whether plaintiff or defense.
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