The Intangibles of Case Evaluation, Part One: Venue

Putting a dollar value on a personal injury claim can be easy when the factors are objective and measurable. Medical expenses, the type of injury and treatment, the length of recovery, and the circumstances surrounding liability are all easy to quantify into a value range. Using these basic measures, claims can often be resolved before litigation begins. However, there is often more to the story that can sway the value significantly up or down.

The intangible factors that affect the value of a claim are often not given enough consideration. A savvy claims professional will know the end game. For plaintiff’s lawyers, the end game is what they think a judge or a jury will award in a trial. In order to effectively know the true value of a claim, these intangibles must be taken into account early. To begin the New Year, we will take a three-part look at the major intangibles that affect value: venue, witness credibility, and opposing counsel. This month’s column looks at the effect of venue on claim value.

Location, Location, Location!

These are the three most important factors in real estate value, and the same could be said of lawsuits, as well. The county (or division in federal court) can drastically affect the verdict estimate that you get from local counsel. The labels of “conservative” or “liberal” are poor descriptors of a venue and can be misleading. Consider the following when looking at the venue:

Jury Pool. You need to know the people who will be deciding the facts of your case. The jury selection process allows you to find out about potential jurors as individuals, but there is more to consider early on. What is the average education level? Is there a particular industry or employer that is prominent in the area (e.g., a manufacturing plant, military base, university, or medical community)? What is the average income level? What is the unemployment rate?

Judge. If you have a bench trial, the judge is particularly important. However, even in jury trials, a judge can impact the value of the claim and the cost of defending a case with pre-trial rulings. It is always helpful to have defense counsel who has a rapport with the judge. In some venues, getting “hometowned” can be a problem. Knowing the judge can lend credibility to your position and predictability to the course of the litigation.

Jury Selection. While the results of jury selection obviously aren’t known until you are in trial, it is helpful to know the process of selection. Does the judge liberally excuse potential jurors? Does it take more or less than a day to organize a jury? Are written questionnaires allowed? Are juries for multiple cases on the docket selected at once? Are jurors recycled for cases later in the week if they are not selected for a case?

Frequency of Jury Trials. In some less-populated venues, jury trials are rare, with jury weeks available as little as one or two times per year. If a trial date could take years to obtain, this will certainly affect your value decision. It also can affect your decision about whether or not to agree to a continuance of a trial setting. Be sure counsel gives you a realistic estimate of when the case could actually be tried if it is not resolved. 

Length of Docket. Most dockets are one week only; however, in some venues two-week dockets are the norm. Your case may be called at the beginning of the docket, but you may not start trial until the following week. This can be a problem if the judge picks all the juries at the beginning of the docket. If your case is held until a later week, jurors will have time to form opinions about what they heard from lawyers during questioning before hearing any evidence.

Local “Expert” for Jury Selection. In smaller venues, it may be helpful to retain counsel in that town to help with jury selection and provide familiarity with the court. Although your usual counsel should be an expert in the particular area of the law your claim involves and should be the most familiar with the facts, having a familiar face at your table in trial can be a good way to buy some immediate credibility. Retain this person early on in the case and use input from your main defense counsel. If you don’t, your opponent may beat you to the punch.

Is It the Right Venue?

Claimants often will have the option of venue in which to file, but that does not mean you cannot fight their choice. Location of the loss, location of treatment, locale where an insurance contract was entered into (in first-party claims), residence of the parties, and other factors all may come into play depending on the jurisdiction. Getting a case transferred to a more favorable venue can make a big difference in the indemnity payment at the end of the day.