Trial Magazine

As plaintiff attorneys, our desire to obtain justice sometimes feels more important than running a successful business—but if you can’t run a successful business, then you can’t get justice for anyone. My law partner and I have a small firm focused on personal injury cases, with an emphasis on wrongful death, insurance litigation, and legal malpractice. After a particularly tough year, we asked ourselves the questions many lawyers ask: Why didn’t this case turn out as well as we expected? Why did it take so much time to resolve, and why was it unnecessarily difficult? Why didn’t the client cooperate and participate to the extent we needed?

After some soul searching, we realized we had accepted cases and clients that we shouldn’t have and that many of the red flags were visible during the intake process, if only we had given them sufficient weight. At our firm retreat, we talked about the types of matters we would prefer to handle and what factors would make a case and a client a good fit for us. Then, we incorporated those factors into an intake matrix that we now use to carefully and objectively evaluate potential personal injury cases.¹ Some clients and cases jump off the page as ones that you should or shouldn’t take; you don’t need a matrix for those. Instead, we use our matrix for the cases that fall in the middle—the ones that require more in-depth vetting of the potential clients and their expectations.

After figuring out what factors are important to your firm, it’s easy enough to create a matrix tailored to you.² Here is an overview of how we got started and how we use our matrix today.

1. Identify the factors that matter to your firm and to the success of the case.

We identified the following factors as the most important when evaluating basic personal injury cases. I’ve also included some of the questions we ask to help assess these factors after the initial information gathering. Your firm might decide that some of these categories are unnecessary or that you need different ones based on your practice areas or other considerations.

Liability. How difficult will it be to prove that the defendant bears the majority of the responsibility for the potential client’s injuries? When evaluating liability, my firm always focuses on what we call “The Big Four”:

1. What did the defendant do wrong?
2. Why is it wrong, and who says so? (Are there standards or rules the defendant chose not to follow?)
3. What should the defendant have done instead?
4. What difference did the defendant’s conduct make? (How was the ­plaintiff harmed?)

Contributory negligence. How much did the potential client contribute to the event that caused his or her injuries? Were the potential client’s actions or conduct unusual or unexpected? We have found through focus group research that juries tend to punish plaintiffs who behave in an unexpected or unusual manner.

For example, jurors believe that serious injuries require serious medical treatment; we have found that they tend to minimize the value of a case if the plaintiff did not go to the hospital after being injured or was treated primarily by chiropractors and physical therapists because they believe the plaintiff acted inconsistently with a case involving serious injuries.

Injuries and medical treatment. How serious are the injuries? How soon were they treated? Did the potential client get the appropriate medical treatment from the proper providers? Are there permanent injuries?

Special damages. How much are the present and future bills? How much are the lost wages? Are there ­problematic subrogation issues that will make the case difficult to resolve, such as an ERISA plan that requires “first dollar” recovery regardless of whether the plaintiff is “made whole?”

Potential clients. Does their story make sense? Do they communicate well? Do they listen and follow instructions? How do you think they will do at deposition and trial? Are their expectations reasonable?

We try to give “homework” at the very beginning to see if potential clients will comply. Often, this is just asking them to bring to their initial appointment each and every communication they’ve received about the event that caused their injury, their insurance declarations pages, and relevant photos. If they show up without that information, it’s a big red flag that they won’t comply when discovery responses are due and that they may be disengaged throughout the litigation. We also carefully evaluate how they tell their story, how they respond to our answers, and how they communicate. We are trying to determine whether they will perform well at their deposition.

Doing this at such an early stage is crucial because we are at our most objective about clients the first time we meet them. After we’ve accepted their case, gotten to know them, and understand how the injury harmed them, we’re not as objective about seeing them as jurors might.

Insurance coverage. Is there sufficient insurance coverage? Does the potential client have health insurance, “med pay” insurance, or personal injury protection (PIP) coverage? Will there be subrogation issues?

Preexisting conditions. Are there preexisting conditions? How difficult will it be to prove that the injuries caused by the defendant are different?

SOL issues. When does the statute of limitations run?

Referral source. Why did the potential clients contact you? Do you know who referred them? Does that person have a history of making good (or bad) referrals?

2. Determine “Potential Case Value” categories.

In the next section, decide what the case value and budget (or expenses) would be for your firm in “A,” “B,” and “C” cases. “A” cases have higher net value than “C” cases and usually require a larger budget for litigation costs. This step focuses on establishing objective measures and will not be tied to any specific case that you are evaluating. Once you determine your firm’s case values and budgets, you won’t have to do this again, unless you decide to update your goals for the types and sizes of cases you want to accept.

In some types of cases, you likely will tie case values to common amounts of insurance coverage. For example, you may decide that the lowest value auto case that is financially feasible for your firm to take is one with $50,000 in total liability coverage. If so, you would put “$50,000” as the “Potential Case Value” for “C” cases. For “A” and “B” cases, the Potential Case Value and “Fees” will be higher, but the “Budget” also will be higher. You will have to choose your firm’s risk tolerance when you set these values.

Calculate the attorney fees and estimate the litigation costs that likely will be necessary to do a proper job on each type of case. 

3. Fill out the matrix as a team.

After we’ve collected information about the case and have met with the client, we schedule a team meeting to fill out the matrix together and decide whether to accept the case. We include the staff members who have had the most contact with the potential client so they can provide input too. This meeting usually takes no more than an hour, and we think it’s important to make a decision by the end so we can inform potential clients.

Discuss the factors, and mark the most accurate box for each. Then give the case an “Objective Case Score” that reflects whether there are more checkmarks in the “A,” “B,” “C,” or “F” categories.

We often find that our ­checkmarks are all over the place. When that happens, we spend more time discussing those ratings: Why did one aspect of the case get an “A” when other factors got lower ratings—and which aspect is more important? Although all the factors matter, we place the greatest weight on the “Liability,” “Insurance Coverage,” and “Potential Client” categories, in that order.

4. Compare the Objective Case Score to the “Case Value Score” you assign.

If the case has an Objective Case Score of “A,” “B,” or “C,” then given what you now know, determine whether the case value is likely an “A,” “B,” or “C.”³

Ideally, the Objective Case Score will track closely to the “Case Value Score”—in other words, a strong prospective case with an “A” score would also have a strong potential case value of “A.” If it does not, address the discrepancy, and decide whether it makes sense to take the case.

Although the objective measure of the individual factors may be favorable, the likely value of the case may not warrant your firm accepting it, and it may be one that you should refer to another firm. Likewise, if the case budget or liability factors would be too great a challenge, this may be a case on which it would be wise to associate with another firm.

5. Assign the total score.

As the final step, we give the case a “total score” based on the Objective Case Score and Case Value Score. We also record on the form whether we declined the case or entered into a fee agreement. For all cases we accept, we list a plan of action for the first 60 days.

On the rare occasion when we accept a “C” case, we schedule it for reevaluation in 60 days. We try not to do this very often, but there are times when the “C” rating is because of an uncertainty about insurance coverage or subrogation issues that we can’t possibly answer until we accept the case and gather information.

This intake matrix and evaluation process have helped us make good business decisions about which clients to help and which clients to refer to firms that might be a better fit. You will rarely regret turning down a case, but the consequences of taking a case you shouldn’t have taken are profound.

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Deborah M. Nelson is an attorney at Nelson Boyd in Seattle and can be reached at nelson@nelsonboydlaw.com.

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Notes

1. We designed a different matrix for legal malpractice cases since those have different considerations. 
2. Our firm is small, but the matrix is scalable to larger ones; it enables firms to make more objective decisions about what cases to accept, which is especially important when more decision-makers are involved.
3. Our firm does not accept “D” or “F” cases, and neither should yours.