Sometimes, the case has to be tried. - Mark P. Loftus
When I evaluate personal injury cases, my initial assessment involves two primary questions: 1) is there a serious injury and 2) can I prove liability against the defendants. I would like to say that every injury case sitting in my file cabinets is a million dollar case. But that isn’t the case. Some of my files feature serious injuries[sadly sometimes including death] but the liability picture is very weak. And some cases have very provable liability but the injury is not one that would get the average Cook County juror particularly worked up. When a significant verdict is unlikely, my practice is to explain that to the client well ahead of trial. Most of the time, the clients tell me they understand and then instruct me that I am to accept any reasonable settlement offer. And in virtually all cases with reputable insurance carriers, an offer will eventually be made. I convey the offer to the client with my thoughts. More often than not, the client decides to settle before trial, thinking that even a modest recovery, is better than a Not Guilty.
A couple of months ago, however, things did not go as I had anticipated. I represented a nice young woman who had been injured after falling due to a large defect in a public sidewalk. Unfortunately, she delayed a bit before coming to see me, and, in the interim, the area of the occurrence had been substantially modified. We didn’t have very good evidence of the actual defect. And as discovery moved forward, the defendant[a self-insured municipality] uncovered some statements that my client had made that raised some doubt about precisely where she had fallen. I have tried enough slip and falls to know that juries don’t like them. It is virtually impossible to keep property owners off juries. There are normally at least one or two jurors looking across the courtroom at the defendant thinking “That could be me.” I advised my client of these difficulties as the case unfolded. When the trial date was set, I called her into my office. I explained that her previous statements were going to be admitted. And that the defendant would use them to suggest that she was lying about how and where the incident occurred. I told her a Not Guilty was not only possible, but probable. She sat quietly for a minute, and then asked if it was too late to settle. I explained that the municipality in question aggressively tried these types of cases and to date, no offer had been made.
“So we will have to go to trial?'” she asked.
“Looks like it,” I replied. She thanked me and left.
Two weeks before trial however, an offer was made. It wasn’t much of an offer, but it was a start. And, over the next 10 days or so, the amount on the table moved up. On the eve of trial, defense counsel called, and made her final offer. Given that we were looking at very weak liability on a slip and fall, the final number was larger than I expected. At the same time however, it was nowhere near enough to compensate my client for a surgically repaired ankle and continuing pain and discomfort. I called my client to advise of the final offer.
“I went through alot, Mr. Loftus,” she began. “That simply isn’t enough.”
And I explained to her that I agreed – that the offer wasn’t enough. I also reiterated that it was a tough case. She needed to understand no guarantees could be made and there was a very real possibility of a defense verdict.
“I understand,” she said. “Let’s try it.”
“Good deal. I will be in touch – we need to go over your testimony before trial.” I was pleased she had agreed to try the case. Her ankle was only going to get worse over time. And the offer didn’t reflect that reality.
Our case got assigned out and we agreed on a trial judge. The evidence was largely uncontested and things moved quickly. Unfortunately, my client was nervous on the stand and stumbled a bit during her direct exam. And the defendant got the conflicting statements in, as I had anticipated. I knew where things were headed. After closing arguments I told the client the jury was going to return a defense verdict. And not quite 2.5 hours later, the jury did.
Both of us were disappointed, but neither one of us were surprised. We knew it was a tough case. My client made an informed decision, with my help, to try the case to a jury of her peers. We got our evidence in. And the jury decided against us. That is how things work.
Sometimes cases need to go to a jury. You won’t win all the time. No one does. But you will know you did all that you could for the client.
