Wednesday, March 17, 2010
What should plaintiffs in large-scale litigation that settles as an aggregate settlement -- like Vioxx or the WTC litigation -- ask their lawyers in trying to evaluate the settlement? As a general matter, plaintiffs are trying to compare unknowns and this is really hard.
If it were the case that a lawyer could tell her client "well, if you go to trial you will get X and if you settle you will get X minus 10 but will save transactions costs" this would be easy. But nobody knows what will happen at trial, and sometimes settlements themselves can only offer ballpark predictions rather than actual numbers. For example, the plaintiffs choosing to participate in the 9/11 victims compensation fund were taking a risk that they would get something different than what the tort system would provide and they did not know in advance what that number would be. Most of them elected to participate in that administrative process rather than the tort system. Those that did not eventually settled, but it took a lot longer. Settling is not just about money and the risk of losing at trial or pretrial motions, but also time and the emotional costs of litigation.
Here are some ideas for questions - happy to add others as comments come in:
1. What are the weaknesses in my case? What are the strengths?
2. What are the chances we will lose before or at trial?
3. What are the costs to me of going to trial, in terms of money, time and emotions?
4. If we go to trial, how long will it take for me to eventually get paid? Are there likely to be appeals and how long will that take?
5. How does the amount I am being offered compare to what other, similarly situated plaintiffs are getting?
6. How does the amount I am being offered compare to what plaintiffs who have lesser harm/greater harm are getting?