Hey, guys. How you doing? This is Joseph Ott here, an attorney at the Ott Law Firm, and I want to come and make a video that explains, in all its gory detail, how you assess the value of your claim. Now, a lot of people will focus in terms of this analysis on the type of the case, but our firm takes a little bit different approach.

That’s based upon statistical science and financial modeling to give our clients a more accurate assessment of the value of their claim without regard for the type of claim. So what I mean by that is a personal injury claim is a claim in tort law. And tort law means that you’re suing somebody for a legal wrong that was done to you.

And this covers a whole universe of possible fact patterns, which can entitle you to recover money from someone else, and that can include tortious interference with a business relationship. It can include defamation. It can include medical malpractice. It can include wrongful death. So it’s not strictly limited in terms of this analysis to personal injury. But personal injury is where it’s most common.

So I’m going to show you on my screen. And I’ve created this little slide that I’ll share in the comments, that indicates, you know, it says, how much is my case worth? Now, the first principle that you’ve got to get, through your head about this is anything that I tell you in this video is just going to be an estimate.

The explicit methodology that I’ve adopted is using the what’s called an expected value calculation to discern what the appropriate value for a claim is, but it’s based upon a few initial assumptions. And so I’m going to just make a little box here. And we’re going to draft our assumptions. So the first assumption is that the value is derived entirely with reference to the damages.

And with reference to the liability. Okay. And that is a big assumption that you would have to make in order to accept this analysis as being one. That’s correct. So what we’re trying to do is look at if you have a case and a particular set of facts, and you take the same set of facts and the same exact case a thousand times, or at least a large enough number of times that it qualifies as being, statistically significant data set.

Okay. If you do the same case a thousand times in front of a jury, how much on average would you get in those thousand times that you tried the case? And we’re looking at constraining how those decisions would come out. So we’re constraining the decisions based upon the damages in the liability. And we’re assuming for the purposes of this model, that those are the only two things that affect the outcome.

Now, there are other possibilities about what affects the outcome. For instance, if you have a case where the damages are extremely difficult to measure, there’s a high amount of punitive conduct that the jury might wish to punish them for. The model will be difficult to ascertain exactly how much that would be. And I don’t just mean punitive damages in the context of a case where you’re legally authorized to pursue punitive damages, there’s also a class of cases that will warrant the award of soft punitive damages.

Meaning when we say pain and suffering to the jury during closing argument, the jury is actually returning a verdict that may reflect some amount of punitive conduct and that they’re saying, you know, this person suffered a lot, but we’re going to give them a little bit extra because the defendant is a complete liar or something like that. So the model can’t predict that type of thing, which a skilled advocate is always going to bring up.

Nevertheless, it’s a useful methodology, and this assumption is one that makes sense because as a matter of law, if you’re prosecuting a tort claim, the two things that you’re assessing are duty and breach and then the damages on the other side. So what are the two variables that are considered within the model. The first is the liability. Now liability is a percentage estimate okay.

So I can even put that on here. So liability is a percentage. So it’s a number number between 0 and 1. And this reflects the percentage of fault that you can put on to the defendant okay. Now liability has some complexity to it in terms of its assessment. And it would depend upon the state that you’re in. In a state like Missouri, the defendant is awarded or taken away from in terms of where the damages award lands based upon how at fault the plaintiff is.

So if you have a case where you get $1 million judgment, but the plaintiff, the person that filed the lawsuit, also has some fault in the process. In Missouri at least, and in about 20 other states, the jury can go back in the room and be like, well, let’s cut down the plaintiff’s award a little bit because they really should have seen that puddle that they slipped on or whatever it is.

Okay. And so in the context of this liability decision in those states, it’s all it’s going to be reflective of the comparative fault associated and attributed to the plaintiff in the other states. This is still an effective assumption, because what the liability number is going to represent is the likelihood that you have a prevailing at trial. So for instance, in Illinois, you have to show that the plaintiff was less than 50% at fault, meaning the defendant was more than 50% at fault for causing the crash in that type of state.

This liability estimate is estimating what is the percentage likelihood that I get above 50%. And so similarly, in other states like in Alabama, I believe you have to show that there’s no fault at all on the plaintiff. And so again, it’s going to be an estimate in that circumstance of the percent likelihood that you’re going to get a judgment in those states, though, you’re going to have to lower the percent likelihood to take into account the notion that the jury needs to assess the defendant as being in excess of a certain percentage at fault.

So it’s a little bit compound, but it is, you know, a logically coherent and probably the only way that you can do this type of calculation now damages, damages means all sources of pain suffering, compensatory damages, medical damages and the like. And we’re going to add all of those damages together. That’s your number. Damages is is more easy to estimate.

And in the context of plaintiff’s litigation damage is is going to be the question that you have the most control over. So what I mean by that is the liability number is based upon an event that’s already occurred. So with liability you’re assessing based upon the facts here. How likely is it that the jury is going to believe that the defendant was the one that caused this fall?

That’s something that is based upon the evidence. So there may be videos. There’s going to be possibly an incident report, there may be witnesses. And what those people and that evidence says is relative tively fixed. Now a skilled advocate is going to be able to portray that in a way that’s more, more beneficial to your case. There’s a skill component to it, but you can’t change what actually happened.

So if you slipped and fell on a puddle of motor oil, you can’t change it and say, I slipped and fell on ice because that’s not what happened. Okay. The damages number, as I was saying, you have a little bit more control over. And that’s because damages is an ongoing process. So if you fall at somewhere and the damages number is at at the time you fall is effectively zero, you know, maybe it’s a little bit of pain and suffering because you fell and hurt yourself.

And the jury should award your damages for that moment or instant of pain. But as the case progresses out longer and longer and on average for our in our experience, it takes about two years after a case is filed before you’re going to get in front of the jury. So throughout those two years, damages is compounding the entire time, especially if you have a severe and permanent injury.

It’s going to limit your ability to do certain tasks, around the house and the like. Similarly, in the context of a business case, if you’re alleging that there was violation of your business expectancy with another party that was unlawfully or tortuously interfered with, the damages component will continue to grow because after that initial interference, you have run on damages in the sense that missing that initial opportunity has caused you to miss additional opportunities that would have been obtained had you had that initial opportunity.

And so this damages number is the most important in the context of plaintiff’s litigation. And it’s also the, as a matter of psychology, one that the jury will frequently conflate with the decision regarding liability itself. So there’s a lot of research that suggests that when somebody is assessing causation because of the inherent philosophical difficulties in assessing whether or not one thing caused something else, that the jurors will tend to use a doctrine similar to where there’s smoke, there’s fire.

And if there’s a, a lot of damages, then they’re much more likely to find liability. Now, the liability number and the causation question, it bears worth mentioning to have a little bit of a commentary on that. In the context of causation. Causation has been examined by, you know, philosophers and all that throughout history. There’s a really good description in, John Stewart Mill’s philosophy of empiricism about the nature of causation.

And basically the idea is that the only way you can discern if something caused something else is you physically watch it, and your sensory information shows that repeatedly when something is in front of you and then it impacts something else, and the other thing moves, you repeatedly have deduced on the basis of your sensory perception, that the impact is what caused the item to move forward.

But of course, we know that that’s not necessarily true. There could be any number of causes in terms of why the object that collided with the other object is moved, and those can include the volition of the person that caused the initial object had when he propelled it into motion. So for instance, if you cause somebody else if I drop my pen, the pen will fall to the floor.

And we know that because we’ve seen it happen repeatedly. But there’s any number of reasons why it dropped to the floor. One way, one accurate way of describing it is to say that I dropped it, and therefore I am the cause of the pen falling onto the floor, but equally so if you get more zoomed in, it’s the gravity that’s pulling it down.

Or you can zoom out a little bit and say, well, it’s his hand. The, the, the movement in the brain of the nerves into the hand, causing the hand to release it is what caused it. So there’s an infinite regress with causation. And this is something that jurors, they will it’s more difficult to show somebody your theory if they get bogged down in that type of philosophic detail, which is frequently what the defense lawyer will try and do as a plaintiffs lawyer, we’re just going to focus on damages.

Nobody wants to assume that somebody could get very seriously injured. Just during the normal course and scope of their life, and as a psychological matter, they will assume that there must have been some sort of bad actor that caused this super severe injury, rather than think that it was just an ordinary accident. So with those assumptions aside, we can do some investigation of particular cases and I’ll start with the most easy one.

And this is the one that’s the most easy because the math is the most easy. So say we have so here I’ll just put examples. Oh boy. And my writing is not the best, but I think it’s kind of more engaging to do it like this. So here’s example one. You have $1 million of damages. And this is what I said before.

And you have a 50% chance of winning at trial. So in that circumstance it’s just a million times 50. So or times 50%. And that’s going to be equal to 500 k okay. Now what is this equation basically saying let’s look at all the constituent factors of the damages. So if you want to get up to $1 million in damages, you’re going to be looking at something like this where you’ve got you could have $500,000 in medical bills, okay.

And the $500,000 in the medical bills can be derived from all of the different medical providers. So you have say you have a $250,000 surgery, and then you also have the other component, the $250,000 that occurred over the course of the case of going to the physical therapist and the like. Now, another component of the damage that’s only 500,000, and that’s your compensatory damages.

But you’re also going to be looking at the pain and suffering. Now, the way that we present this is we say, what if there was a pause button directly before the incident giving rise to this injury? So returning to my example in the store of the lady falling on the puddle of oil, what if before the lady falls on the puddle of oil, some threw a cosmic hiccup?

A man appears directly before she walks across the oil and he says, you have two choices. The first choice is you go to the left and you don’t fall on that puddle of oil, and you get to leave and live your life as if none of this happened. And the second choice is, if you take this choice I’m going to give you, you’re going to you’re going to fall on the oil, and I’m going to give you a briefcase.

And the briefcase is filled with cash, and the cash is intended to make the fall on the oil get you to the same spot that you would have been in had you never fallen at all. How much cash needs to be in that briefcase? And this is the question that can orient and as a thought experiment, help you to understand and that the value of that injury is often significantly more than the medical you had to pay the bills.

But throughout all that time, every single day, you’re dealing with the pain associated with this injury. And maybe you can’t pick up your grandkids or something like that. If you can’t do the one thing, if she can’t do the one thing that she loves most for the rest of her life, then where is the situation going to land?

I mean, how much is that worth? Should be a lot. So in this case, we’re saying we got $1 million in damages and a 50% chance of winning. Now, the 50% chance of winning means this could go either way. That was a big puddle. She really should have seen the puddle. I don’t know how she didn’t see the puddle.

It was something that you know anybody, any reasonable person should see. But equally so the store owner, they made a mistake. There shouldn’t be puddles of oil on the floor. And in fact, the manager walked directly over the pile of oil and didn’t do anything about it. And you can see it on camera. So maybe that’s where the jury comes back and they say, well, they’re both both at fault.

It’s 50%. There’s one, final thing to consider with this, in terms of the percentage, and this is why the percentage is what really where it where it really starts to come back. Because percentages can be nestled. So you can have your $500,000 in damages or your million dollars in damages, like I was saying. And remember, this is the damages at trial.

So we’re projecting going forward how much damages you’re going to have on the day of that trial. Now, in terms of that liability figure, if you have that 50%, that 50% represents how much you’re likely to win in front of the jury. But if there’s also a probability that you could lose entirely on it at a different stage in the case, say, on summary judgment, because the judge has the ability to kick the case out of court.

So in a car crash case, it’s almost impossible for this to happen. But unlike a slip and fall, there’s a lot of law and nuance. Depending on what state you’re in about, under what circumstances a store owner can be held liable for having oil on their floor in my jurisdiction, they need to know that the oil was there, or have reason to know that it was there, either because it was there for so long, or because there was a person that walked directly over it and didn’t do anything to stop it.

If you have a chance of losing on summary judgment, you have to Nestle that percentage into the previous percentage. So now it’s say you have a 50% chance of winning on summary judgment, and you have a 50% chance of losing at trial. And the nature of this is that, you know, you got to factor in that, that likelihood of losing twice.

So in that circumstance, if the liability is 50% times 50%, you’re going to actually have a 25% chance of winning that summary judgment. All right. I apologize a 25% chance of winning your case. And that means that your damages calculation, or rather your, expected value calculation is modified. So in this example, if you have $1 million in damages, you have a 50% chance of winning at trial.

Then the expected value before trial, meaning after the summary judgment is decided is $500,000. And that’s the level where we would want you to settle the case. Nothing less than that, but before trial. So we’ll just say pre summary judgment. It’s actually 0.25 times 1 million which is of course $250,000. And so if we think that you’ve got a 50% chance of losing at summary judgment, we’re going to tell you that and we’re going to say, you know, really, before that summary judgment is decided, this case is worth to 250 K.

But then after the second the summary judgment is denied, it’s worth 500. Okay. And so that’s why it’s kind of a complex thing. Now in the context of this case, and this is the final section about, I guess like the ethics of this. So in the context of this, we as attorneys are here to be your guide.

And we’re going to give you a lot of good, examples and a really deep understanding of what the facts and the law are as they are relevant to the claim that you’ve hired us to represent you on. And a lot of firms, particularly these big box firms that spend billions of dollars on advertising, the ones that say that they’re the largest, you know, these ones, these guys, when they’re when they’re going through it, they’re just going to tell you to settle the case because they want to get that money in and have you pay their advertising fees.

But the ethical way to do it is to explain the consequences to the client, because people have different valuations about how much it’s worth to get money now. So for somebody that’s like about to lose their house or something like that and they just like really need the money, it’s unfortunate it, but they have a higher incentive to settle the case and they may take less than the this expected value figure just because they really want the money, they can’t deal with that.

Two year wait. Conversely, there are people that like to take a chance on it and they’re saying, I don’t care what the percentage likelihood of me losing is. If I have any chance of winning $1 million, I want you to prosecute my case and try and get my million dollars. And both of those decisions are completely right, because the decision belongs to the client.

So the purpose of this is just to educate and identify with the client what we think would happen if we had the same case a thousand times. And the, all the assumptions were proved true.

So that’s it. Thank you for watching this video. Please hit like or subscribe and if you have any questions then feel free to leave a comment below.