QUESTIONS CLIENTS SHOULD ASK COMMERCIAL LITIGATORS (#1): What Is My Case Worth?
Updated: Dec 11, 2020
Commercial Litigators are the lawyers companies and people hire when they have a business dispute. They don’t put up billboards or send letters to your house. You generally aren’t going to see the news van outside the courthouse when they try a case, even a big one. If it’s your trial, it’s the kind of stuff you care about, a lot, but the world will not find it that interesting.
If you have a business dispute, and don’t know a Commercial Litigator, you are probably going to find one by asking people you trust
And you are going to find that there are surprisingly few of us out here. So you call one of those guys up and find yourself sitting in his office talking about the money that’s owed to you or that some other company says you owe it. Before you know it, he’s sending you reams of paper you don’t understand and invoices for his services that you can’t dispute because you don’t have a clue what he’s doing. Then you start thinking of some questions you realize you should have asked at the beginning, but how the heck could you have known what they were?
As a Commercial Litigator, I would rather answer those questions before you hire me
It saves us a lot of time and anguish and helps us form a litigator/client team right at the outset. And, like most things in life, resolving your business dispute is a team effort, or at least it should be.
So, here is the first question I think a client with a business dispute should ask a Commercial Litigator to which he has been referred: what is my case worth?
Commercial Litigators understand this question. This is how we talk to each other. Right after the client leaves our office we call up the attorney who filed the lawsuit (because we usually know each other–remember, there are not that many of us) and ask him this very question, “Hey Ted, what’s this case worth?” We do that to get a feel for how much and what kind of effort we should put into it, how big the case is. No case is “little” in the sense that we won’t do our best, but we just want the effort (and cost to our client) to match up.
Most clients don't have a clear idea of what their case is worth
In my experience, new clients who have been sued (defendants) have not really thought about it (perhaps they would rather not know) and our court rules do not permit the plaintiff to put the actual number in the complaint. The reason for this rule is to keep unethical plaintiffs from using the threat of the filing of a “million dollar lawsuit” as business blackmail.
So, if you are sued the complaint will usually (there are exceptions, there are always exceptions) only say that the damages “are in excess of $25,000.00”. What the case is “worth” to a defendant is the litigator’s estimate of the judgment and/or settlement range the client is facing. That is, what he can expect to pay whether he tries it or settles it.
Conversely, I have found that new clients who have been economically harmed (plaintiffs) are both vastly overestimating their potential damages and vastly underestimating the offset the other guy (the defendant that is) might be entitled to. An offset is the counterclaim the other guy will usually make in Commercial Litigation, because business disputes are generally a messy two-way street. What the case is “worth” to a plaintiff is the amount of recovery that is likely from judgment and/or settlement. That is, what he can expect to get whether he tries it or settles it.
Estimating case value is the lawyer's job
Asking your lawyer to estimate your case's value before you hire him is the best and most direct way for you to find out if he can’t or won’t do it, and whether his valuation of your case is consistent with your expectations.
Finding out a year into litigation that your lawyer thinks that your "million dollar case" is only actually worth $50,000 is not good. So the first question a client should ask a Commercial Litigator is: what is my case worth?