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Making the Decision to File a Lawsuit

In this article, I will provide a general overview of the most important points to consider when deciding whether to file a personal injury lawsuit. 


It is the Plaintiff who decides whether to file a lawsuit, not the Plaintiff's lawyer. When I represent a client in a personal injury case, I certainly advise my client as to whether I recommend filing a lawsuit, but I never make that choice for my client because the choice belongs to the client. 


Second, filing a lawsuit does not necessarily mean that your case is going to go to trial. It takes a long time to get to trial, and during that time there are many opportunities for the case to settle. The vast majority of lawsuits get settled before trial. However, as I explain here, it is critical that you prepare your case as if it were going to trial. In fact, being prepared for trial is one of the best ways to avoid having to go to trial.


The plaintiff in a personal injury lawsuit bears the burden of proof as to his or her claims. In baseball, a “tie goes to the runner.” Similarly, in litigation, a tie goes to the defendant. In other words, litigation defaults to victory for the defendant and defeat for the plaintiff. To meet its burden, the plaintiff must introduce evidence that proves its claims. Therefore, before filing a lawsuit, the Plaintiff must carefully consider whether he or she will be able to meet his or her burden of proof. 

Assessing Risks and Benefits


In the same way a military officer must try to discern his or her enemy's thoughts and intentions, the plaintiff's lawyer must understand how his or her adversary views the case. In this article, I discuss the most significant risk factors that often loom large for defendants in personal injury litigation.


Of course, you must also assess your own risks and benefits. Blindly bluffing all the time is not a recipe for success. Unfortunately, as human beings, we tend to be quite bad at recognizing our own risks. This human shortcoming is the reason why lotteries exist. It should be obvious to everyone that playing the lottery is an unwise investment, but people continue to play en masse. Those same tendencies that drive people to play the lottery are at work in the human brain whenever we subjectively weigh risk versus benefit. The benefit is so attractive; whereas, the risk is repulsive. Therefore, we tend to focus on the pleasing benefit and ignore the abhorrent risk. This phenomenon is known as confirmation bias. Our bias leads us to seek out evidence that confirms our beneficial prospects, and our bias simultaneously makes us skeptical of any evidence that would confirm our prospects of risk. There are three broad categories of risks and benefits that I believe plaintiffs should consider when deciding whether to file a lawsuit.


“What would a jury do with this case?” That is, almost always, the most important issue that a plaintiff should consider when weighing his or her risks and benefits. You can click here to to learn more about the possible outcomes in a jury trial. And, you can click here to learn about how to calculate the expected value of a case based out on outcome forecasting.

Of course defendants also need to be keenly focused on the question of “What would a jury do with this case?” That is the key issue for them too. Plaintiffs and defendants have that in common, but there are also some significant differences between plaintiffs and defendants in personal injury cases–those differences generally lead plaintiffs to weigh the prospective risks and benefits of trial much differently than defendants.

For the plaintiff in a personal injury case, especially when the plaintiff has suffered severe permanent injury, his or her case is of vital importance. The result of the case will have a profound impact on the rest of his or her life. The outcome of the case will very likely be the difference between comfortable prosperity and abject poverty. On the other hand, the stakes for the individual defendants are usually very low because he or she is usually covered by an insurance company. And while the stakes are quite real for the insurance company, the case at hand is just one of many for the insurance company. The insurance company will likely be involved in thousands of lawsuits at any given time. It is the insurance company's chosen business, and a profitable one at that. The outcome of any one case, whether it be good or bad, just does not matter all that much for the insurance company because the insurance companies risks and benefits are broadly spread out among many other cases. In stark contrast, the plaintiff only gets one shot. (Cue Hamilton or Eminem.)

One advantage that plaintiffs generally have over defendants at trial is that the plaintiff's downside is bound, but the plaintiff's upside is unbound. For defendants, the opposite is generally true. In other words, the plaintiff's worst day at trial (which would also be the defendant's best day) is generally a verdict of $0, but there is no upper limit to the amount of the verdict. Arizona juries are generally not known for being particularly generous, but in some cases, where the plaintiff succeeds in proving his or her case in a very compelling way, Arizona juries will rise up and deliver large verdicts that send a message to defendants and insurance companies. While you cannot simply assume that you are going to get a large verdict, the possibility of a large verdict should increase the value of the case to anyone who is attempting to rationally determine the case's settlement value.


Plaintiffs generally experience the costs of litigating a case much differently than defendants do because the plaintiff's lawyer is generally working on a contingency fee arrangement; whereas the defendant's lawyer is usually getting paid by the hour. Therefore the plaintiff does not have to come up with money out of his or her pocket to his or her lawyer, but the defendant does. 

The defense lawyer's bill usually gets paid by an exceedingly well-capitalized large corporation or insurance company. They can afford to pay their lawyers, but they would still prefer to avoid that expense if possible. 

For plaintiffs, costs other than attorney fees are usually a more important consideration than attorney fees because the amount of the attorney fees generally will not change much as the case moves through litigation. However the “other costs” can increase substantially. These “other costs” include things like expert witness consultations and reports, court reporter fees, private investigator fees, and court filing costs. Expert witness fees are the main area where these costs can really mount. Generally, the plaintiff's attorney will advance those costs, but the attorney will get reimbursed from the settlement funds when the case settles. If the case can be settled before these costs are incurred, then that is an advantage for the plaintiff.


Non-economic factors should also be considered when deciding whether to file a lawsuit, including both risks and rewards.


In my experience, clients generally know intuitively that being a plaintiff in a personal injury lawsuit is hard, but they don't have a clear idea as to how or why. Even after going through the process, I think most plaintiffs would have a difficult time articulating the difficulties. I believe that one of the most challenging aspects of the claims process for plaintiffs is that they are subjected to intense scrutiny, which can sometimes be quite painful. 

A scrutinous defense attorney does not generally come as a surprise to a plaintiff, but the scrutiny can still be painful; however, when the scrutiny comes from unexpected sources, it can be downright depressing. The plaintiff may feel that he or she is not being trusted by his or her family, friends, doctors, and lawyers. It hurts. So generally, the sooner that pain can be brought to an end, the better.  

The claims process requires a substantial investment of time from the plaintiff. But beyond the hours that are spent, the claim requires a mental, emotional, spiritual, and physical dedication from the plaintiff. When I get a client's case settled, I can usually perceive a dramatic brightening of their countenance. It is as though a weight has been lifted from off of their shoulders. 


On the other hand, sometimes there are real, though hard to quantify, benefits to pursuing a personal injury or wrongful death claim. In fact, sometimes the non-economic factors vastly outweigh the economic factors.

Chief among the compelling non-economic factors that are involved in a personal injury or wrongful death claim is the pursuit of justice. I believe that justice is a virtue unto itself. In other words, I believe justice is a good thing. There are many good things in the world, and I cannot pursue them all, so I must be selective in what I choose to pursue. But sometimes the pursuit of justice alone is sufficient to justify the pursuit of a claim, notwithstanding any economic benefit or detriment that the pursuit may entail. That is why lawyers, including myself, sometimes handle cases on a pro bono basis — because we have decided that a case is worthwhile to pursue even though we know from the outset that we will not get paid for our efforts. Plaintiffs have similar motivations. They often pursue claims to vindicate a principle of justice. Many of my clients (possibly most) have expressed the idea to me that their case is not about the money. Money may be a factor, but oftentimes it is not the driving force in a claim. 

There are many other non-economic benefits that could motivate a plaintiff to pursue a claim. It would be impossible to catalog all of them, but there are a couple more that merit mention here. First, I mentioned above that the scrutiny to which plaintiffs are subjected can be painful. But on the other hand, when the plaintiff perseveres through the scrutiny and prevails in his or her case (whether through settlement or adjudication), it is like an acquittal. The plaintiff has essentially been scrutinized, and found worthy. Second, the claims process can be a cathartic experience for the plaintiff because it may require the plaintiff and his or her family to work through difficult issues. Working through the issues may be painful, but sometimes it can have a beneficial healing effect.

The philosophies, strategies, and tactics I've outlined above are the principles that guide our actions at Cluff Injury Lawyers. I've outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them. 

Author: Brigham Cluff

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