Think Like a Defense Lawyer – Verdict and Settlement Analysis

— By John Merrick —

As a plaintiff’s personal injury lawyer, it is important to think like a defense lawyer. For every case, I still put on my defense attorney hat and prepare a verdict and settlement analysis throughout the case.

Below is a template I used for pre-trial reports in disputed liability cases where there was plenty of insurance coverage. [If there is a risk of an excess verdict, the analysis changes].

What sets our firm apart from most other personal injury attorneys, is that we each handled cases for the defense / insurance carriers for over a decade. We’ve seen personal injury cases from all angles, and we have a solid track record of evaluating cases and working hard to get the best results.

Of course, every case is different, and the settlement analysis depends on its own unique facts, available insurance coverage, witness personalities, injury type, defense / expert costs, potential evidentiary issues, and any unresolved issues.

The analysis should be modified to conform to the case, but this simple template is a good starting point to stay focused on the big picture. Here it is:

Plaintiff makes a [good / bad] impression, and the jury is [likely / unlikely] to believe her and find her [sympathetic / to be overreaching]. Overall, Plaintiff’s witnesses are [favorable / weak] and defendants witnesses are [favorable / weak].

Liability is disputed. Juries are hard to predict, but verdicts are often the product of a compromise.

Based on current information, I would expect the plaintiff to prevail at trial [X] percent of the time. If the plaintiff prevails, based on my experience in the same or similar venue, I expect a compromise verdict in the range of [Y – Z]; however, a [runaway?] verdict up to Y+Y also possible. Based on the foregoing, a reasonable settlement range is X% [Y-Z].

Using this template, the chances are your evaluation will overlap somewhere with the defense evaluation. That is often where the settlement figure lives.

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