Oct. 4, 2023 – You’ve met with the client and drawn up an engagement letter, but should you take the case? To answer that question, you’ll need to weigh financial, ethical, and tactical factors, say three litigators in Wisconsin.

Personal Injury: Through the Client’s Eyes

“The problem is the client is never going to be served well by that representation if the subrogation on the $100,000 of medical expenses gobbles up the proceeds because it’s preemptive,” says Robert Kasieta, founder of Kasieta Legal Group.

For veteran litigator Robert Kasieta, founder of Kasieta Legal Group, the most important thing when sizing up a personal injury case is looking at it from the client’s perspective.

“If somebody comes to me and says, ‘I’ve got a serious injury and $100,000 in medical expenses,’ and there’s a $100,000 insurance policy for liability and the tortfeasor is uncollectible, the economics work for me because I’m taking a third right off the top,” Kasieta said. “If liability is fairly clear, there may not be any problem in me getting $33,333.33, right now.”

“But the problem is, the client is never going to be served well by that representation if the subrogation on the $100,000 of medical expenses gobbles up the proceeds because it’s preemptive.”

In Kasieta’s opinion, taking such a case just for the fee is a bad idea.

“You’ll make money off the case but you’re going to have a client who’s really unhappy, and understandably so, because here you are with fiduciary duty to this client and all you’re saying is, ‘I’m going to grab the money and run,'” Kasieta said.

Kasieta said that it’s common for attorneys to forget about subrogation when performing an initial case calculation.

Anchors Away?

Managing client expectations is critical in the early stages of a personal injury case, Kasieta said.

“If I say to a client, the words ‘One million,’ I’ve anchored them to a high number, and if I settle that case for $900,000 and it’s a great settlement by any lawyer’s standards, I’ve got a disappointed client who’s saying, ‘You left $100,000 on the table because you didn’t get me the value you promised when we first met,’” Kasieta said.

Kasieta recommends having an honest conversation with the client about the value of the case and a “real, principled discussion about what the client can expect.”

Take a client fresh out of the hospital after a car crash.

Kasieta said the answer to “What’s my case worth?” in that scenario is “‘I don’t know,’ because what the case will be worth is what your maximum medical improvement looks like.”

“If seven months, eight months, two years from now, you’re exactly like you are today, but you’re using a walker to come to my office, that’s one case,” Kasieta said. “If a year from now, you’re calling me and saying, ‘I can’t talk to you because I’m running a marathon,’ well that’s another case.”

“If I say anything to that client about the value of the claim, the client is going to consider that to be a promise, and I have no business making a promise about evaluation at that juncture in the relationship, because I can’t tell,” Kasieta said.

Into the Arena

Kasieta said it’s getting harder for lawyers to have such honest conversations as the personal injury marketplace becomes ever more competitive.

The profusion of personal injury lawyers leads some would-be plaintiffs to go lawyer shopping – obtaining a case estimate from one attorney, then shopping that estimate to a second attorney in hopes of finding someone who thinks he or she can get them more.

Kasieta said he never takes such cases because he doesn’t like poaching from other attorneys.

But for those considering representation in those cases, Kasieta said it’s even more important to manage the would-be client’s expectations.

“They will not remember your words about ‘it could be me, maybe, possibly, worth a million,’” Kasieta said. “You just basically ensured that the client is going to be disappointed unless the client turns out to be catastrophically injured, and nobody celebrates that.”

Deserving Plaintiff?

While it’s a mistake to inflate client expectations, it’s also a mistake to devalue a case at the outset, Kasieta said.

“I can’t tell you how often I’ve been surprised when I start digging into the story and find out that it’s a bigger deal than I thought it was, and suddenly I’m standing in front of a jury asking for a half a million dollars on a case that, when I was introduced to it, thought ‘Oh it’s a simple story, it’s not that big a deal,’” Kasieta said.

A plaintiff’s in-court testimony can be powerful, Kasieta said, especially if the attorney knows how to shape a story for the jury.

Kasieta cited a case where he represented an 84-year-old woman who’d suffered $19,000 in medical special damages in a car crash.

The woman wasn’t a candidate for surgery – she’d outlived the life expectancy tables so there were not future damages, and she’d quit working so far back that calculating wage loss was impossible.

Kasieta focused on her status as a grandmother in his presentations to the jury.

“We concluded that the code was ‘Grandmother,’” Kasieta said. “Once the jury understood that she was somebody’s grandmother, they would understand it from their own perspective, because I’ve never met anybody who said, ‘I really hated my grandmother.’”

The jury awarded the woman $300,000 in pain and suffering damages.

“There are compelling things you can talk to the jury about, and they really matter to people, and they’ll matter to the jury too, if presented well,” Kasieta said.

Business Litigation: Documents are Critical

“You’ve got to evaluate whether it makes sense financially to engage in that expensive litigation and put yourself more in debt,” says Kevin Palmersheim, shareholder at Palmersheim Dettmann, S.C.

The first thing that Kevin Palmersheim, shareholder at Palmersheim Dettmann, S.C, looks at when analyzing whether to take a partnership or shareholder dispute case is the entity’s documents.

Nearly 80% of the time, Palmersheim said, would-be clients “don’t have anything or they have something that they just printed off the internet.”

Palmersheim, who’s been practicing law for 30 years, said that if there’s no partnership agreement, LLC operating agreement, or corporate bylaws, the breakup of the entity will be governed by default rules spelled out in state statute.

“Those statutes have gotten better over the decades I’ve been practicing, but a lot of these cases are still just a one-side-says-one-thing, the-other-side-says-the-other-thing, and it’s just a messy dispute,” Palmersheim said.

How Much is at Stake?

Even if the entity’s documents are in order, the attorney should determine how much money is at stake. Doing so is essential, Palmersheim said, because attorneys usually bill on an hourly basis in business disputes.

“You’ve got to evaluate whether it makes sense financially to engage in that expensive litigation and put yourself more in debt,” Palmersheim said.

A growing part of the expense associated with business litigation is the explosion in electronic discovery.

“When I started practicing, you might have a couple of file cabinets or a few banker’s boxes full of documents,” Palmersheim said. “Now, you’re talking about hundreds of thousands of pages, which are received electronically.”

Expanded discovery means expanded pre-trial fights, Palmersheim said.

Attorneys are increasingly squabbling over discovery violations – arguing that the other side didn’t produce responsive documents or failed to use search terms likely to grab the types of documents requested.

Role of Jury Instructions

Palmersheim said that attorneys who do take business cases to trial often come up against another document issue – a lack of good standard jury instructions.

The creation and refinement of standard jury instructions is dependent on trials, and comparatively few business disputes make it to trial. That means fewer jury instructions for business cases – a factor attorneys should keep in mind.

“Jurors don’t have copies of the transcripts; sometimes they don’t even have copies of all the exhibits,” Palmersheim said. “But what they do have is this list of all their rules, the jury instructions, that they use to decide the case. I think trial attorneys underestimate the importance of those.”

‘A Different Animal’

The rarity of trials in business disputes means attorneys should remember that they’ll likely be educating the judge as well as the jury.

“In my practice, I’ve had a half-dozen or more jury trials in business cases where it was the first civil jury trial that the judge had heard,” Palmersheim said.

“They’ve been surprised afterward, and learned a lot about the amount of documentation and accounting that are involved, and how much more document-intensive it is than a normal case.”

“The judges will even say that they’re used to having one manila folder on their bench for a criminal jury trial, and then we come in and we have four to ten large binders of exhibits that you have to go through,” Palmersheim said.

“Some of them are summaries, so there might be banker’s boxes of accounting records that back up those summary exhibits, and that’s just a different animal,” Palmersheim said.

Trust and Estate Cases

“If you’re defending a trustee, the default under Wis. Stat. section 701.1004 is that the trustee is allowed to pay their defense costs, including attorney fees, out of the corpus of the trust, as long as the trustee acted in good faith,” says Kai Hovden, an attorney a DeWitt LLP.

How to assess whether to take on a trust dispute depends on what side you’re on, says Kai Hovden, an attorney at DeWitt LLP.

“If you’re defending a trustee, the default is that the trustee is allowed to pay their defense costs, including attorney fees, out of the corpus of the trust, as long as the trustee acted in good faith,” Hovden said. “You're kind of playing with house money, although any funds spent on litigation reduce the corpus.”

“There are ways for the other side to prevent you from doing that, but it requires a court ruling in your favor,” Hovden said. “So, unless that happens, the trustee is in a safer position because their costs can ultimately come out of the trust.”

For cases involving wills, the attorney should determine how much money is at stake, as well as the best- and worst-case recovery scenarios for the client and the amount of likely attorney fees and costs.

“Is there enough at issue to justify the attorney fees that it’s going to take to either defend your client or win some recovery for your client, and does the delta between the attorney fees and how much your client is likely to take home make it worth it for the firm to get involved?” Hovden said.

Everyday Issues, but Beware Emotions

Hovden said that trust and estate lawsuits are usually less complex and less techncial than intellectual property disputes, the other half of his practice.

“The topics involved are things that people touch in their day-to-day lives,” Hovden said.

“In a garden variety probate case, you’re looking at what the decedent owned at the time of death and what plans did they have in place for the disposition of those assets? You’re looking at someone’s house, you’re looking at what bank accounts and retirement accounts did they own? People generally have exposure to all that stuff.”

But if trust and estate cases are easier because they usually don't require expensive expert witnesses, they’re more difficult because they’re often driven by emotions and family history.

“Often in these types of cases, there are family members who don’t talk to each other anymore because there’s so much animosity there,” Hovden said.

Attorneys assessing whether to take a trust and estates case should bear in mind how that animosity might play at trial.

"The emotions are likely to come out a trial," Hovden said. "Will those emotions manifest in a helfpul way or in a counterproductive way?" Hovden said. “That’s going to influence your risk assessment on whether you should more strongly pursue a settlement or going to trial.”

Mediation Is Common

Hovden said that in his experience, about half of trust and estate disputes that come to the firm proceed to litigation. Of those that move forward to litigation, about 90% settle, often after mediation.

But discovery – and the cost associated with it – is likely even in cases that end up settling.

“Most people don’t like to go to mediation until they’ve done at least a first round of discovery, and collected enough information that allows them to bluff that they’re going to trial,” Hovden said.

“You want to at least know what’s out there before you go into mediation.”