Several plaintiffs attorneys from larger firms say they have established minimum financial thresholds in determining whether a case is worth pursuing and will often refer cases of potentially lesser financial value to smaller firms.
Conversely, those smaller firms that do not specialize in medical malpractice or other cases that are expensive to litigate are more frequently referring those cases upward.
The establishment of a monetary floor and the increased selectivity of large firms in taking on cases comes as a result of the rising costs associated with litigating medical malpractice cases.
Slade McLaughlin of Philadelphia-based McLaughlin & Lauricella said in an email to The Legal that his firm is handling more serious injury cases. “We refer out all limited tort auto cases, all criminal cases, all workers’ comp cases, and all slip-and-falls without significant injuries,” he said. “We are probably accepting … one in 25 cases that are called into the office.”
Serious injury cases have become very expensive to litigate, McLaughlin observed, with most cases going to trial having costs in excess of $100,000.
McLaughlin added that “many doctors now want $10,000 to $15,000 to testify at trial (not including travel and lodging expenses), and the cost of a litigation consultant to portray exhibits up on the screen can run $1,500 per trial day. With those kinds of costs at risk, we are looking very hard at both the liability and damages aspect of every case.”
In determining the merits of a case, Matthew Casey of Ross Feller Casey said that the ability to prove liability outweighs the potential monetary value of a successful case.
“Any experienced catastrophic injury lawyer knows you need to have a real case, meaning you need to have real liability, real causation, and real damages,” Casey said. “Having said that, those things are not always as easy to prove in some cases as they are in others.”
If that is the situation, Casey said, the pressure that a lawyer can bring to bear on an insurance carrier is one of the key factors that determines whether a case is worthy of litigation.
Casey added, “What goes into that is a whole range of facts: is the plaintiff likeable, is the defendant not likeable to a jury, economic damages to award, considering whether the jury would be sympathetic” to the plaintiff’s issue.
Furthermore, Casey said he noticed that since the introduction of the certificate of merit in medical malpractice cases, lawyers who previously “dabbled” in those cases are more likely to simply refer the case.
“As a consequence, I think that malpractice cases that have merit are now primarily being handled by firms that specialize in that area of law,” Casey concluded.
Alan Feldman of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig also said he noticed that there are fewer attorneys who do not specialize in medical malpractice trying those cases, due to the high cost of litigating them.
“Firms that used to dabble in malpractice don’t anymore. They’ve determined it’s too risky for them,” Feldman said. “No one likes to do bet-the-farm litigation that they can’t afford; it could wipe out a firm.”
Feldman said at his firm a committee reviews every medical malpractice case to determine if it is worth pursuing.
“It’s been good for us, we turn down a lot of cases, but it has allowed us to focus on the more valuable cases,” Feldman said. “That has been transformational for our firm in the last half-dozen years.”
Those cases that are turned down due to a potentially low financial return or that do not require the resources of a large plaintiffs firm, Feldman noted, are referred to smaller practices.
“By and large we don’t have those $50,000 cases anymore. In fact we have downstream relationships with attorneys that handle cases that may be too small for us,” Feldman said. “It would be hard to get us involved in a case that doesn’t have seven-figure potential.”
Thomas J. Gibbons of Gibbons Legal in Philadelphia said he often receives referrals from other attorneys, including those from larger firms.
“We get a lot of referrals, about 40 to 50 percent of our cases are referral-based,” Gibbons said. “A lot of them are motor vehicle cases and limited tort motor vehicle accidents … which few firms seem to accept.”
Gibbons said that he believes he is offered so many referrals in those types of cases because many attorneys find them difficult to litigate.
Donald Ladd, a defense lawyer and chairman of White and Williams’ health care practice group, said complaints are better drafted and more focused and that the overall quality of plaintiffs’ representation has significantly improved.
“We see much fewer ‘fishing expeditions’ where lawsuits would be brought in the hope that a theory of liability would surface during discovery,” Ladd said. “Since the filtering process and expert review is more demanding and costly, the number of law firms bringing plaintiff cases has reduced dramatically. We tend to see the same higher-quality plaintiffs firms over and over.”
Gary M. Samms, chair of the professional liability practice group at Obermayer Rebmann Maxwell & Hippel, said he also noticed that representation from larger firms has become more prevalent in cases with potential high-dollar yields.
“It’s fair to say we see more established plaintiffs firms in cases that deal with high damages, even if there is a question of liability just because of the large upside,” Samms said. “Some of the cases with questionable liability and with modest returns are not being pursued as much and you’re more likely to see someone who typically does not do a whole lot of medical malpractice.”
T. Kevin FitzPatrick, director of the health care department at the defense firm Marshall Dennehey Warner Coleman & Goggin in King of Prussia, Pa., said, “There are more referrals now from smaller shops to bigger shops because of the fact that it is so expensive to litigate and take on these cases.”
That trend is now affecting defense practices as well, he noted.
“Not only has the volume of cases decreased, but the number of named defendants in lawsuits has decreased as well,” FitzPatrick said. “That impacts our end of things. There’s more competition on the defense side because there are fewer filings.”
But the same caution that smaller firms exhibit in approaching big cases needs to be applied to large firms in pursuing mass tort litigation, said Thomas R. Kline of Kline & Specter.
“There are financial considerations to every decision that’s made by a firm. The decisions of a less mature firm are different than the ones of a mature firm that can absorb a mistake.” However, Kline said, “The issue with the big firms is not to make a big mistake in overcommitting to a mass tort which is not likely to be successful.”
“When a firm does that, it can be a recipe for disaster,” Kline continued. “Betting the house on anything is never a good idea. Large firms can incorrectly bet the house when they double down and triple down resources in mass tort work.”