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The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zunda, and I'll be your host. Welcome to another episode of the Effective Lawyer podcast. I'm your host, Jack Zinda. And today, we're gonna be talking about how to evaluate tough liability cases.
Speaker 1:As all of us know, the most valuable asset that we have is our time. And if you get on a case that turns out to be a dud and you put in weeks, months, even years on it, that is time you cannot get back, not to mention the case expenses. But sometimes tough liability cases are great to take on because the upside's so big. So how do you decide? How do you pick if this is a good one or a bad one and how to do it?
Speaker 1:Well, our firm has developed a process and a step by step approach to how to evaluate a tough liability case. Okay? Obviously, you know, the trucking cases where someone was killed or rear in collision, those are easy to decide if you're gonna take them off. But your premises liability cases, workplace injury cases, wrongful death cases where there's not many witnesses, there's tons of different types of cases where it's tough to decide if you're gonna take it or not. Sometimes you have a truck case where your client's at fault in the crash report, and the evidence looks like they may be at fault.
Speaker 1:So how what do you do? The first thing you wanna decide is what is the upside on this case? If I win a 100% of the case, how much do I think I can get? Because that's gonna drive a lot of your decision making. If you have an upside of, say, $10,000, and it's a tough liability case, probably not gonna take it.
Speaker 1:If you have an upside of $5,000,000, and a tough liability case, you probably are gonna take it. So number 1, decide what you think the maximum value is. If you're in a situation where it's tough to determine the value because injuries aren't that severe, at this point, that's probably a sign you don't wanna take a tough, liability case. So then you wanna figure out, what how much time would I have to put in this case if I have to take it to trial? Is this gonna be a 10 depo case, a 5 depo case, a 2 depo case?
Speaker 1:And don't assume you're gonna settle any tough liability case in pre let. I've gotten myself into trouble and some and I know other lawyers have as well where they have a tough liability case. They work on it. They hope it's gonna resolve without a lot of fighting and litigation. And then, well, behold, that's the one you end up trying, and it wasn't a good case all along.
Speaker 1:So we take the approach, and we started this about 10 years ago, that every case we take is going to trial. So if you come out with that mindset, you'll say, okay. How much time would this take if I have to go to trial? Is it a 1, 2, 3 expert case? Is it a 1, 2, 10, 20 deposition case?
Speaker 1:And then also figure out how much in case expenses do I need to expend. That's gonna be have a major impact in what the net outcome for the client is. And remember, our clients have hold have hired us to get them justice, but also to get them financial compensation. And you don't help anyone if you go to a jury trial and the clients end up netting 0 because you spent a $100,000, in expenses on a $100,000 outcome case. So you can do that by creating a budget and mapping it out and just estimating what each cost would be.
Speaker 1:Then go through and figure out what your theory of the case is. So, and by the way, we have a checklist for this if he wants a copy of it, and we keep track of these things as we're going through it. In my mind, the theory of the case is what do I want the facts to be? So based on everything I know, and there's a lot of things I don't know, what do I want those not known things be, in order to win the case? I call it the plaintiff's theory.
Speaker 1:And then I also have the defendant's theory. What do they want the facts to be, and what evidence would we need to disprove those bad facts. If you'd like a copy of any of the things you heard about here today or to set up a time to talk one about one of our team members about a case, please go to Zenda Law dot io, and we have amazing resources, downloads, guides, and you can set up a time to talk to us if you wanna talk about how we handle things or any case in particular. For this case, if it's a tough liability case, you wanna go through and say, okay. I would hope there's a witness that saw it.
Speaker 1:Maybe there's a video footage that establishes the defendant's at fault. Maybe the defendant was drinking on the job. Maybe they're high on prescription medication. Things you don't know, but you want to be true. And at that point, will you win your case if your theory is still true?
Speaker 1:If not, you don't want this case. You also wanna put together a jury charge. Okay? I see so many attorneys skip this step, and then they get to the trial and they're surprised that there's another person on the charge, or the defendant brings up an RTP you didn't think about. And you have to be really careful if this passes statute.
Speaker 1:You're in a lot of trouble if they bring up a responsible third party then. So put together your jury charge, and then you might want to do a focus group. So, they're really cheap nowadays. There are a lot of companies who get them cheap just to find out based on what you know, what are get people putting the percentage of liability on. And obviously, this matters if it's a pure comparative state or a pure contrib state, or something in between.
Speaker 1:Then see, has anyone else handled a case like this and been successful? So look for colleagues, look for verdicts, look for settlement reports, and see who else has has had a case. Post on your local listserv, has anyone resolved a case like this? That'll tell you if anyone's been down this path before and if they can help you in some ways you may not be realizing. Then you wanna put a percentage of likely outcomes.
Speaker 1:So what is the percentage that I'm gonna get for liability if I tried the case 10 times? And that'll give you a sense of what you think you might be able to get in the case itself based on all the information you've collected so far. And then if you go back to the value side and put a range of high, medium, low. And then you wanna take that information and multiply it times the odds of success and then, subtract your estimated case expenses and see under the high option, am I happy, under the mid option, am I happy, under the low option, am I happy? And remember, if you're in a contrib state and you're at 51%, on the plaintiff, you're getting 0.
Speaker 1:So you wanna take that into consideration as well. How high are the odds that I'll be at 0%, get a zero outcome because of liability? Then you wanna put it all together, think about it, maybe talk to a colleague, maybe get their opinion, and then make a decision if you're gonna take the case a lot. Now you're like, man, that's a lot of work to just decide if I'm gonna take a case. Well, think about how much work you're gonna put into this.
Speaker 1:I've seen attorneys put a 100 hours into a case they end up dropping after the first set of depositions, and I could have told them they could have gotten to that place way sooner. Doesn't mean you don't sign up the case, but how far you take it. You know, we usually sign up a case evaluating and give ourselves 30 days to make a final decision what we think of the case. And once we're there, we typically have our blinders on like we're going to trial unless some crazy new set of facts pops up. But rarely have I seen a situation where that's occurred.
Speaker 1:It's usually the attorney didn't take their time at that front end and shortcut it and was hoping, ah, I bet they'll pay us because the damages are high. So to recap, what you wanna do is, 1, look at the upside. 2, value the case. 3, look at your case expenses. You also wanna make sure your docket can afford to put that much time into it.
Speaker 1:Look at the odds of success, and then make a a decision, within 30 days of signing it up. I know that's a lot. I hope it was helpful for y'all. If you have any additional questions, wanna talk about this further, please feel to reach out. You can either email me or contact my cell phone, and I'm happy to go over it anytime.
Speaker 1:Till next time. Thanks.
Speaker 2:Thanks for listening to today's episode of The Effective Lawyer. You can learn more about our team and find other episodes of our podcast at zenda law dot com. As always, we'd appreciate that you subscribe, rate, and review the pod.
Speaker 1:Thanks.