The Injury Litigation Canvas

Step 1. Case Facts

In less than three sentences tell a judge or mediator about your case.  Include date of loss, how the loss occurred, why it occurred, who caused the loss, and legally why they are responsible for the loss. Then…describe the damages your client suffered, the monetary value of such loses, and any indisputable evidence that support such losses.

The first step is to develop your elevator speech for the case.  This may evolve over time as more evidence becomes clear, but at every stage of the case you should be able to quickly articulate the ‘what (happened), when (did it happen), who (was involved), why (did it happen), how (was the defendant(s) at fault) and where (did you client suffer damages)’.  Ok, so that’s a little forced, but you get the idea!  If a Judge or Mediator asked you for the meat of your case in a few sentences, what would you say?  Attorneys are typically way too verbose without saying what is meaningful.  Every word or two should convey important information about your claim.  If it does not, remove it from your Case Facts section.

Step 2. Liability/Proving Fault

What event occurred that caused your client to get injured? What wrongdoing occurred? Why is the defendant responsible? Was your client at fault also?  If so how and why?

How often do attorneys tell you about their case by focusing on the damages first?  How many conversations begin with ‘I have a client who got hurt badly.  The damages are huge….and the client is such a nice guy– this just shouldn’t have happened to him.’   What’s hidden in that comment is what is not said.  What event occurred for which someone else was responsible that caused the damages.  The irony with this misplaced ‘damage first’ analysis is that it unwittingly puts your client on trial as the focus of the case.  Any decent trial attorney knows to frame his case from the standpoint of what the defendant did wrong, why it was wrong, the grave danger involved in such actions, and only then….what damage this caused to your client.  By training your brain to first see all the bad acts committed by the defendant, and only then, the damages those acts caused, you will be continuously framing your case as you would at trial.

Key Witnesses Needed

Who knows something about the incident and needs to be questioned or deposed?
Were there any ‘eyewitnesses’ who have firsthand knowledge of the incident? Who?
Is anyone relevant immediately before or immediately after the loss causing event, such as someone who helped afterwards or set up the situation before it happened?
Are any experts needed to address liability?  If so, who or what type of expert?

Key Documents/Items Needed

What documents are needed to prove the incident happened and/or liability for the event?
Are there any photos, videos or computer/electronic data that will help your case?
Are there any ‘physical things’ that are needed for your case, such as physical equipment involved in the event or small models of things involved in the event?

We attorneys always speak in terms of ‘facts’ without putting a ‘source note’ by each fact.  One of my favorite thinking tools in a case is the term ‘as evidenced by what?’  You must continuously be challenging every ‘factual’ statement you make or assume about your case.  Anytime you say this or that happened, or you can prove this or that, you need to add the words ‘…as evidenced by ____’ behind your ‘factual’ statement.  ‘Factual’ statements without supportive evidence are also called assumptions.  Assumptions can’t win cases.

Step 3. Physical Damages/Losses

What physical or emotional injuries were suffered by your client? Exactly what medical injuries occurred to each affected part of their body? 

This part comes easy for most plaintiff attorneys!  Time to talk damages and harms.  We naturally know our clients and what they have been through a lot better than we will probably ever know the defendant.  This makes identifying injuries and damages and quantifying these losses easier than finding all the relevant and important liability facts.  No wonder we focus on this part of most claims more than the liability. 

The key here is to engage in ‘second level’ thinking.  Meaning, identify direct losses as separate from the consequences of those losses.  Each of these will need their own proof and a connector or bridge between them.  In a typical injury case, it’s the equivalent of arguing that your client can no longer work thus suffering millions in wage loss…without first establishing that the injury was actually caused by the accident and not his preexisting conditions. Those are two very separate, but equally important elements of damage.  You can win a case by proving the first element of damage (the physical injury) and missing the resultant second tier damages (the wage loss or future medical needs).  You can’t win a case by skipping the first tier of damages and just proving the second.  Remember to build the bridges necessary to relate all the damages to the accident.

Doctors/Specialists/Non-Experts Needed

Who will you rely upon at trial to prove your client’s physical or emotional injuries?
Any medical experts who can quantify/explain the losses?
Any non-experts who have knowledge of the losses?

Test/Reports Needed

What documents or other things do you need to prove the physical or emotional injuries?
Are there any medical test results or medical imaging done, or that need to be done, to show the injuries?

We all know juries (and opposing counsel!) don’t give any weight to what us attorneys say.  You need ‘who’s’ that will explain your case to the jury and impart credibility upon you simply because the jury believes they are honest and impressive witnesses.  These can be fact witnesses as well as expert witnesses.  We often spend so much time focusing on the technical issues in a case, we forget to build up compelling testimony from just ‘regular people’.  Your jury will be regular people.  Don’t forget to use some of their own people to present your case to them.  Even when a document says something happened and there is no ‘legal’ dispute it happened, a few solid regular non-expert people explaining that to a jury can go a long way for your client.  When I try cases, I look for a witness or two who can explain documents for us even if their contents are pretty easy to understand.    ‘Who’ is available to bring life to your case?

Step 4. Resultant Economic Losses

What resultant economic losses will occur due to the physical or emotional injuries suffered by your client? Consider wage and benefit losses as well as future medical costs. What experts or non-experts will you use to prove such economic losses?
What documents or other things do you need to prove such losses?

These boxes form the economic losses suffered by your client.  Making economic loses a separate step in the damage analysis, only after the physical or emotional injury is fully established and supported, helps you to breakdown exactly what must to proven to recover economic damages.  In an injury claim, it’s the different roles played by the medical doctors (what ‘first tier direct’ injury did your client suffer—injured back, brain damage, etc) versus the roles played by the life care planners, vocational and economic experts (because of your client’s injured back/brain damage he will loss $2 million dollars in wages and need $1 million dollars for future care…).

Step 5. Possible Value of Claim

Looking at the physical, emotional and possible economic losses based on the boxes above, what is the judgment value of your claim if the defense doesn’t even show up at trial? If you prove 80% of what you think you may, how much will the claim be worth?  If you prove only 20% of what you think you can, how much will it be worth?

Pretty basic stuff, but its always good to put pencil to paper and run different scenarios.  If only your ‘first level’ damages are accepted by the jury, where does that put your recovery?  Is the proof for your first level damages weak? How about liability?  Don’t get sucked into focusing on all those second level damages without building a strong provable bridge to them.  0% of the largest damages in the world is still zero.

Step 6. Cost to Litigate Claim

Looking at the boxes directly above, what do you estimate the total cost will be to take case to settlement?  How about to trial? How much will each of the following on the case cost to develop to settlement?

Have you ever gotten ‘upside down’ in a case?  Ever had to lower your fees or even waive your fee just so you could recover your costs?  At each step of your case, keep an eye on the input needed to get the expected output.  We trial lawyers are great at imaging the high output, but what will it take to get there?  If your output creeps higher, will there be enough recovery net to your client for the case to settle?  It’s your client’s case; run the numbers with what it puts in his pocket, not just what you spend to recover a certain settlement or judgment. 

Step 7. Red Flags/Dismissals

Could your claim be dismissed before a trial?  How?  How do you prevent such? Is there unclear/uncertain law that needs to be researched? Are any experts subject to possible exclusion due to their qualifications or not being necessary?  If so, how will you prove what they would have proven? Could your client sabotage their own case?  Truthfulness of your client?
Are there other red flags unique to this specific case?

A great business coach I know has a practice of always asking his clients ‘what are you missing…what don’t you see?’  Everyday so much of what we take as given truths are really preceded by many assumptions.  In every case there are things you are simply not seeing unless you dig…and dig… and dig even more.  The most powerful strategy in preparing a litigation case is to play the ‘what if’ game.  What if your expert gets struck?  What if your trial date gets continued?  What if your client is lying? Thinking that way is the best way to see the only important aspects of your case.  If you don’t, they just may run you over from behind!