WHAT RELIEF DO YOU WANT?
In its simplest form, every lawsuit has 2 parts. The first part generally encompasses what the problem is, and why you feel you are entitled to some relief. The second part is what are the damages or relief you seek. People spend a lot of time formulating their problem. Indeed, when potential clients call me to discuss their situations, they usually want to discuss every little detail of what he said and she said and did, etc., and how they were wronged, etc. This is often a cathartic process for them, and besides the verbal discussions they will often make copious notes or prepare a diary.
However, when I ask them what relief or damages they seek, they often seem flummoxed by this question. It appears as if they can’t get past the wrong they felt was done to them to determine what they want. Or, they ask me to determine what they should ask for in damages.
Damages are an elusive thing. The Internet has not been helpful as a tool to guide people as to what a realistic damages assessment is. In fact, it leads to unrealistic expectations. Every case has specific fact circumstances and individualized damages. Further, there are many factors which impact a case, and those factors determine the results. Some of these factors may be who is deciding the case—an arbitrator, a judge, a jury, etc.; whether the case is being decided in a court or in some type of mediation or arbitration forum; who are the parties, and what type of witnesses they make; if there are expert witnesses, are they believable; what were the injuries caused; what is the law of the jurisdiction they are involved in, and on and on.
As a result of the above, it is entirely possible and probable that even in a case with nearly identical situations, such as a person who breaks a leg in front of an apartment complex after tripping on a crack in the sidewalk, the results can be diametrically different.
Therefore, when someone asks me what damages they should request, I can only give them an estimate or a ballpark figure. Generally the damages are whatever amount I can negotiate with the other lawyer or what a fact-finder decides to award my client.
So, when someone tells me that they read about a case which they think is a similar case to theirs in Idaho I tell them that it is highly unlikely that the case is similar to theirs, the law of Idaho is different, and it is an individualized instance.
A final thought is that I have noticed when a case has concluded and a client has agreed to a settlement, they sometimes have a difficult time signing the release, which ends the case, and even if they sign the release, they decide at a later time that they should have settled for more, or the opposing party didn’t apologize or suffer enough, and on and on. I feel this because the client has been so involved in telling their story and in the lawsuit for some period of time, often years, and when it is finally ending, they feel bereft. There will be something missing from their lives. The story they have nurtured for so long is coming to an end. But, everything has to come to an end, and I feel that part of my job as a good and experienced lawyer is helping the client realize that it will be good for them to end years of drama and litigation, or that it would be financially foolhardy for them to shoulder on, or that the law doesn’t provide the panacea to their problems, and they have to accept what the law can provide and move forward. Many clients have thanked me for assisting them in bringing to an end an unhappy situation so they can move forward.
You can find this post and others by Ms. Cohen at her blog Touglawyerlady found here.