Letters.

Another View of the Break-even Offer

I read with amazement the February Trial Lawyers Forum, "Settlement Offers in Personal Injury: Identifying the Break-even Offer."

My amazement arises from almost total lack of consideration of the injured client's interests, substituting instead analysis focused almost exclusively on the interests of the attorney. While insurance companies and their actuaries may operate on the "probability theory: in the long run, higher than projected claims will be offset by lower than projected claims ...," this same probability theory can hardly form the basis of the individual claimant evaluating the individual death or individual serious injury.

Look at these excerpts from the article:

"The authors believe that if attorneys used experts more often they would make more money per case, and would spend less time and effort on cases that prove to be less profitable."

"Negotiations currently are controlled by guess work, and the attorney with limited resources cannot afford to guess wrong."

These are examples of how the authors apparently focus on the economic benefits to the lawyer without consideration of the client's needs or desires.

This kind of thinking is what leads to the hypothetical; concluding that the "break-even offer" is "$13,479" in a situation in which "you can easily establish damages in excess of $25,000, which happens to be the policy limits."

The further suggestion that if the hypothetical case involves a 10 percent chance of loss, then the break-even offer is $10,028, and the obseration that the "break-even point" is intended to represent the cases handled by an attorney, indicates that the authors are not in touch with the reality of the plaintiffs personal injury practice.

The solution offered in the hypothetical case for the lawyer to protect the lawyer, rather than the client, is personally offensive to me. Frankly, most trial lawyers, faced with the hypothetical, would be able to obtain et settlement offer for the full $25,000 and to suggest recommendation for settlement for $13,000 would almost be evidence of malpractice.

I am surprised that the Trial Lawyers Section would submit an article expressing these thoughts as representative of the professional responsibility of a trial lawyer to an injured client. Articles such as this may have some value to those academicians wedded to the Chicago School of Law and Economics, but they should not; be proposed to trial lawyers as representative of the way in which any client should be treated or any client's case should be valued.

BILL WAGNER

Tampa

Editor's Response

The article titled Settlement Offers in Personal Injury: Identifying the Break-Even Offer, which appeared in the Trial Lawyers Forum of the February Bar Journal, is not, and was not intended to be, the view of The Florida Bar Journal or the Trial Lawyers Section. The Trial Lawyers Forum is simply intended to be a platform for the...