Weekend!

Burt Likko in reply to Morat20 says:

Well, I’m a lawyer and perhaps I can help you.

What you ask for is not necessarily what you expect. In some jurisdictions (like, say, California) there are rules about how you take judgments. You must put a defendant on notice that you intend to demand “up to” X dollars from a court.* Once you do that, your damages are capped at X because you’ve said, yourself, that this is the full amount of your claim. If you don’t state the amount at all, then you can’t proceed to get a default judgment in the event the defendant doesn’t answer. You may not reasonably expect that you’re going to get X. But you never know because things might happen that the lawyer who writes this document wasn’t aware of or didn’t fully appreciate when the document got written.

For instance, let’s say that you’ve got something more serious than a soft tissue injury coming out of an auto collision. Broken bone. Needed reduction in surgery before it got patched up. Lawyer gets hired fairly quickly (because that’s how these things go and I have some gripes with that but that’s not your question) so the lawyer knows “I’ve got a sure-fire liability collision, an an open reduction on a broken bone. That’s six to ten weeks before my client can go back to work, a surgery and two days inpatient care, so hard damages of around $50,000 in medical bills and maybe as much as $10,000 in lost earnings.” Using the traditional valuation of three-times-specials to compute general damages (aka “pain and suffering”, although that characterization is inaccurate through underinclusiveness) you get a total anticipated value of $240,000 to that claim.

What the lawyer can’t know is that staphylococcus got into the patient’s bone marrow during the surgery. Yes, the hospital and the physicians may very well have direct responsibility for it, but the auto collision set that chain of events in motion, so it’s up to that defendant to come into court and argue “independent, superceding, and unforeseaable subsequent causation” as an affirmative defense. And they either succeed in that or run up against the doctrine of “you take your victim as you find her.”

Anyway, a staph infection in bone marrow might take some time before it manifests and grows malignant, and now you’ve got a patient with a seriously compromised immune system, a body that is literally rotting from the inside out until some pretty powerful medicine gets deployed to stop it (if it gets identified and applied in time, and if it’s effective). So now you’re looking at lifetime injuries, if not death. Much higher damage profile than you were looking at before, which was a serious broken bone.

That would really be a million-dollar claim.

And you’ve gone and put the defendant on notice that the value of your claim is less than a quarter of a million dollars, for no reason other than good optics to third parties. Now, you’ve just shortchanged your client out of three quarters of a million dollars. That’s legal malpractice, buddy, and you’re on the hook for it, buddy.

Same thing might apply, probably with a less dramatic scope, in a soft tissue injury case arising out of a low-impact collision, like the kind of case you’re discussing above.

That’s why I phrase the purpose of the statement of damages as advising the defendant that the plaintiff will claim “up to” a certain amount of money — “up to” includes all smaller amounts, but excludes all larger amounts. Meanwhile, there is functionally zero disincentive to putting in $10,000,000 in the box on that form, even if you expect that the claim is worth $240,000 dripping wet based on what you know at the time you fill out the form. So someone reads this form and says, “Holy cow! How can she possibly ask for that much money based on an accident like this? It’s just a broken bone out of a run-of-the-mill accident, she hasn’t won the lottery! Frivolous lawsuit! Greedy, unethical lawyers! Harrumph, harrumph, harrumph!”

It’s quite likely the case when you read that paperwork that there is some cocktail of a) this dynamic of caution, b) there are facts at play which you don’t know, and c) standardized practice based on the cautionary principle above at play.

The result has bad optics, I know. The reality of it is that it’s very unlikely in a soft tissue, low-impact case that the plaintiff or her lawyer actually expect to recover seven figures.

* At least in California, in a personal injury case, that demand may not be included in the complaint itself at all. CCP § 425.10(b). It’s served on the defendant in a separate document called a “statement of damages” which is typically not filed with the court except in the event of the plaintiff taking a default judgment. In other states, including Tennessee where I practiced for a while, the amount of the demand is in the complaint, but again, the cautionary dynamic is sort of forced on the lawyer by the rules: you can understate your client’s actual damages in a filing and get the recovery capped and thus commit malpractice, or you can overstate your client’s damages in a filing and maybe scare some people but avoid liability to your own client after the real value of the case becomes apparent, and leave yourself the ability to settle or get a judgment for the actual damages.Report