Myth #3: Litigation research is only for high exposure cases

Steve Wood, Ph.D.

In the next installment of our “Myths of Litigation Science” series, we examine the notion that litigation science services are only needed in high exposure cases. The potential clients who tell us that our services are not needed because the monetary values are not high enough are commonly those who represent individuals or organizations involved in medical malpractice cases. With over half of all states having some form of caps on medical malpractice damages, it makes sense for clients to believe that the exposure on any given case is not high enough to justify the expense of a litigation psychologist. However, according to the National Practitioner Data Bank, approximately $4 billion was paid to plaintiffs in medical malpractice lawsuits in 2018. Of those payments, the average amount was $348,065—the highest it has been in the last 15 years.

Why cases settle for higher dollars

One of the primary reasons why cases are settling for such a high dollar value is because clients are not investing in properly training their witnesses for depositions. Research has shown that poor performance in a deposition is the leading factor in increased damages. Some corporations will rely on the fact that, even if they are required to settle the case, the amount of damage awards will not exceed a statutory limit. As we have heard from clients in states where caps exist, this is not a beneficial practice. We have been told by a Senior Claims Specialist, “Just because a case is capped, does not mean that [a] particular case warrants a full capped payment. The client will inadvertently build a case against themselves through poor decision making in a deposition. If that happens, then you have no choice but to pay the full capped amount.” Another Senior Claims Specialist told us, “Whether or not caps exist, the question for the liability carrier remains the same: do you want to be forced to pay a premium to settle a claim that could have been won but for the performance of the insured at deposition? It can mean the difference between paying nothing versus paying a statutory cap in a case that may have had little or no merit.” There is no doubt that plaintiff attorneys are astutely aware of some clients’ willingness to settle cases for the capped amount, despite the weaknesses of the case. This willingness to settle cases also makes these clients prime targets for repeated litigation. The best way to prevent this is to provide witness effectiveness training with a litigation psychologist prior to deposition, which costs only a fraction of any potential settlement.

The value of a litigation psychologist

If corporations in states with caps can find value in hiring a litigation psychologist, it makes even more sense for businesses in states without caps to seek out a trained litigation psychologist. As we mentioned in one of our previous blog posts, litigation psychologists can add value to a case by partnering with counsel to assist witnesses in overcoming mental, emotional, and behavioral mistakes, while allowing counsel to focus on the legal issues. Therefore, the next time a corporation assesses a case, the question should not be, “What is our maximum exposure?” The question should really be, “What can we do to ensure that we are settling this case for the most appropriate value?” Until this question begins to get asked more often, it is unlikely that we will see a significant decrease in the overall dollar amount of settlement payments anytime soon.

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