I am watching (again) the movie “A Civil Action”, called by some critics the best legal thriller ever. It opens with the star John Travolta wheeling a paraplegic into a courtroom. The movie audience listens in as Travolta muses silently in his head about the value of the case in personal injury.
“A dead plaintiff”, he thinks, “is rarely worth as much as a living one who has been severely injured, a dead woman is worth less than a dead man, and a dead child is worth least of all.”
Then my phone rings. It is a Plaintiff’s attorney interested in whether I might be willing to help as a trial consultant or expert witness in an employment case. Inevitably, somewhere in the conversation, directly or subtlety, the question comes up - so what is this case worth?
Is Accepting an Out of Court Settlement Offer of $100,000 in an Employment Case a Good Deal or Potential Malpractice?
Two women allege wrongful termination. One was employed for two years and then let go when she told her employer she had cancer. The “go away quietly” offer to her attorney was $10,000. Another woman, also employed two years, quit and then alleged wrongful termination because of “failure to promote”. Her attorney decided to go to trial after turning down $100,000 to drop the complaint. In a third case, the Plaintiff’s attorney advised his client to take $100,000 rather than risk a trial. His client took the money, then later had a change of heart and sued the attorney for malpractice.
How Can You Develop An Estimate of the Worth of an Employment Case?
Looking at the numbers, are you smarter to specialize in medical malpractice or in employment law? Compare an employment case to a product liability case, what is a PL case worth?
Your chances of taking a medical malpractice case all the way to a jury decision is twice as great as that of going the distance with an employment case. Medical malpractice cases constitute about 10% of the civil trials, while employment cases constitute about 5%.
Product liability cases, despite their notoriety, only constitute about 1.5% of cases that go to trial. Almost all PL cases are tried before a jury.
If you are the plaintiff’s attorney, where are your odds the best for winning - Employment, Medical Malpractice or Product Liability? Of the three, you and your client have the best chance of winning when you try to beat the boss. Here your odds are almost exactly 50%. True, Discrimination cases result in Plaintiff’s winning somewhat less (45%) than other causes of action (55%) such as Wage & Hour, Wrongful Termination, and ADA. But the point to remember is that if you decline the offer to settle, you have a 50% chance of winning.
While you may get twice as many opportunities to go the distance with a medical malpractice case, you only have half as much chance of winning. You will lose about 75% of malpractice cases, with 90% of them decided by the jury rather than the bench.
Your odds are winning a trial in a medical malpractice case are not good - and it is a lot of work. While the number of potential cases is smaller with product liability, the odds of being successful as a Plaintiff’s attorney (45%) are greater, about the same as an employment discrimination case. The odds in a PL case are good.
As a Psychologist (PSY 4753) and Trial Consultant, to me these statistics have face validity. A number of psychologists have written hornbooks on the subject of how juries decide damages: (Cass Sunstein - 2002) (David Ball - 2005), (Edie Greene - 2003).
Put into plain English and common sense, juries have more sympathy for doctors than they do for corporations. Most jurists have jobs and bosses they don’t like. The facts in employment cases are far easier to understand than in medical malpractice. Jurists consider themselves first and foremost as employment experts. Next they see themselves as having expertise as consumers, and least of all as expert medical patients.
So - What Is An Employment Case Worth?
The rule of thumb in an employment case is about $150,000 as the final amount awarded to the plaintiff winner. That is a median and it bounces around from year to year and jurisdiction to jurisdiction. The US Department of Justice Bureau of Justice Statistics (BJS) reported $166,000 as the median award for an employment discrimination case in 2001. Of course, other causes of action can (and probably will) yield a different set of numbers. But $150,000 is easy to remember and probably still fairly accurate. Moreover, almost 40% of the Plaintiffs' in employment discrimination cases are awarded MORE THAN $250,000 and 14% are awarded OVER $1,000,000. So in employment cases the odds are good, the awards substantial and the facts easier for jurists (as their own experts) to understand.
A products liability case is still a good case, from the viewpoint of both odds and value. While you have fewer opportunities to go the distance with these, the median award according to BJS was $450,000 in 2001. Here, almost 40% result in Plaintiff final awards are over $1,000,000. All jurists are consumers and they have all had bad experiences with some product or another. Plus, the Defendant is a company and they can afford it.
We have seen that beating the doctors for medical malpractice in the end game is a tough proposition. You have more opportunities (cases) but only one chance in four of prevailing as a Plaintiff’s attorney. Yet the awards are substantial. BJS reports a median award almost the same size as for product liability. But here, only 30% of the awards exceed $1,000,000.
As a Plaintiff’s attorney, if you like winning, your best odds are in employment cases.
The $150,000 median case value number is useful but as always, the devil of course is in the details. Now go back to that offer to settle for $100,000. Both the attorney and their clients need to think about the probabilities before assuming the risk of going the distance. You have a 50% chance of picking up at least another $50,000 if you go to trial compared with a 50% chance of leaving the courtroom empty handed. I wonder - what would John Travolta do?
Michael Nash, Ph.D. is a Licensed Psychologist and Certified Compensation Professional specializing in employment, discrimination, wrongful termination, compensation, Title VII, FLSA, ADEA and other related issues. He has published two books in the field of Human Resources/Personnel and has worked on over 600 consulting assignments in 35 states. Dr. Nash can be reached by phone at (800) 473-1881 or via email at mnash484@aol.com
