Numerous services compile case data. The question is how can you mine that data to help evaluate your case?
Insurance companies assemble data on thousands of cases. This allows them to extract historic data on what they paid on cases with specified characteristics. Several commercial software companies sell vehicle collision claim data processing to insurers. These include Colossus, Claim Consultant and Claims IQ. Claims Outcome Advisor crunches data from vehicle claims and slip-and-fall cases.
Here’s how they work. The program takes the adjuster through a questionnaire asking questions about issues such as plaintiff age and gender, treatment history and cost, medical diagnoses and prognoses, and extent of damage to the vehicle. The program then produces a range of settlement valuation. The next step is supposed to be human intervention to review what the program has produced.
Lawyers’ and Public Research Services
Lawyers typically subscribe to electronic legal research services. The biggest are LexisNexis and Westlaw. Each service also includes searchable data on verdicts and settlements. While these services are marketed to and priced for lawyers, anyone can buy short term access for a day or week.
An internet search for “verdict search” brings up multiple databases which compile this information. The generic term for case result research is “verdicts and settlements.”
Searching Legal Databases
Verdicts and settlements research is an art not a science. For all the reasons stated in Chapter 1, the same case will have a different settlement value than it may produce at judgment. In researching jury verdicts, the goal is to find cases with profiles as close as possible to yours. For your research results to be persuasive, you want to make apples-to-apples comparisons, even if your case is a Gala and the closest fact pattern you can find is a Macintosh. Factors include:
Look for plaintiffs of the same gender and as close in age as possible. You can search by decade; for example, for people in their 40s and 50s, a Boolean search would look for 4* and 5* year olds. Race information is not usually available, but is helpful.
Ideally, you would like to see reports of cases tried in your own county since that is the jury pool from which your own jurors will come. But you may not find a good match from such a limited search. Researchers seldom look at cases outside the state where the case is pending as that is the applicable law. Unusual fact situations my require searching in other states. Within the state, look for similar communities if possible. If you are in a metropolis, you will probably be judged by jurors from a more diverse population than in a rural area. If you are in a big city, try to look at cases from other large cities and vice versa. You probably have a good idea of the political leanings of the majority in your area. Communities with similar politics tend to produce similar verdicts. Lawyers will refer to certain courthouses as drawing a “conservative” (low verdict) or “liberal” (high verdict) jury pool. Defense lawyers and insurance companies dub some communities such as Madison County, Illinois and New York City, as “judicial hellholes” for their extremely high verdicts. While this information can be helpful, it can also mislead litigants. Jurors might be generous once convinced by the facts, but that may not mean they will excuse an absence of proof. Just because a community is known for producing high or low verdicts does not mean your case will go that way.
Search for similar injuries using every applicable term. For example, don’t stop with “fracture.” Look for “fracture or ‘Open Reduction and Internal Fixation’ or ORIF”. Include the body part: “leg or lower extremity.”
The easiest comparison is between cases where the defendant is 100% liable. Don’t make the mistake of comparing verdicts where the defendant is fully responsible with those where the defendant is partially responsible. Depending on the rules of the jurisdiction and the nature of the damages, trials involving the same injury can produce wildly different results. For example, a California defendant who is only 1% liable will be judged 100% responsible for a plaintiff’s special damages. A different jurisdiction’s rule could result in a verdict one-one hundredth (1/100) the size of a California case with the same facts.
Use Caution in Assessing the Results
Verdicts are a public record. Settlements are not. Many verdict databases and all settlement databases get their data from the attorneys who tried the case.
Verdict databases will cover the range of all cases that were tried. But most cases are settled, not tried. Those that go to trial do so because at least one side made a mistake in their evaluation. Verdicts are the results from outlier cases, cases so extreme or unusual that experienced people were unable to come close enough in their evaluations to lead to settlement. Therefore, verdicts may not be the best guideposts in evaluating your case. Settlements would be, but the best research cannot discover all settlements.
While some settlements may be reported in public media, most are not of sufficient public interest to warrant the attention. Some settlements, particularly seven-and eight-figure settlements, are confidential. Many settlement agreements include confidentiality provisions which forbid participants from disclosing information about the terms. Usually these are blanket prohibitions, though sometimes the restriction is limited to information which would identify the parties.
Savvy attorneys race to submit non-confidential case result reports in a way that shows them in the best light. Because there is no third party oversight, the report of the facts or the pivotal legal issue may not be accurate. Attorneys may slant information so it looks like a bad result was really a win in view of the situation or the opponent’s good result wasn’t as good as it could have been. Many law firm websites report the results of the firm’s own settlements. These reports are skewed to show the most successful results.
When trying to use verdict research for persuasion, negotiators usually offer records of a range of verdicts. Sometimes in negotiation the highest and lowest results are thrown out, especially if they are much different from the locus of verdict results. Parties will argue about how comparable the verdicts are to the case at hand.
The challenge of finding and using verdicts and settlement research does not mean you should ignore this information source. Being aware of the limitations helps you evaluate what you find and what may be presented to you in negotiation.