Everybody Hurts

People who complain about frivolous lawsuits have no idea. Christina M. Habas, for example, a plaintiff’s personal injury attorney with Keating Wagner Polidori Free in Denver, estimates that “only about 10 percent of the cases [people want to retain me for] are accepted.” 

Why do lawyers decline so many cases? “Cases where someone’s hurt on another’s property can be difficult,” adds Lorraine Parker, a personal injury and medical malpractice attorney with Parker Lipman LLP. “Unless the property owner knew or should have known about the dangerous conditions, there is often no case. We all also have a duty to watch where we’re going.”

So how do you know if you have a personal injury case?

“When we’re screening the case of a potential client, we look at four things,” says PI attorney Jim Chalat of Chalat Hatten Koupal & Banker in Denver. “One is the claim on liability under the facts of the applicable law. The next thing would be ‘significant damages,’ which would be a case that would attract a settlement or a verdict. The third thing would be ‘collectability,’ whether they have the assets or the insurance. The fourth element is much more subjective: whether or not the plaintiff is a likeable person. If someone is very wealthy and comes off as entitled, it could be off-putting.” 

Chalat often deals with suits involving Colorado ski slopes—generally stemming from, he says, “two skiers or snowboarders that collide into one another.” He estimates there are about 1,250 emergency-room visits from collision injuries each year. Fault can be difficult to prove. 

Ditto auto accidents, says trial attorney Michael Burg, of Burg, Simpson, Eldredge, Hersh & Jardine. “We hear all the time: ‘I went to make a left-hand turn, the car was far away, then next thing I know they hit me,’” he says. A speeding car can be at fault, but an inattentive driver can also be at fault. “Under Colorado law, if that fault is 50/50,” says Burg, “you don’t have a case.”

The extent of the fault can determine the size of the settlement, but there are limits. “The current amount for a cap on noneconomic damages is $468,010, which may be increased on clear and convincing evidence to a maximum of $936,030,” says Habas. “For medical malpractice claims, there’s a $300,000 cap on non-economic damages and $1 million for all combined damages.”

“Then there’s a category for ‘disfigurement or physical impairment,’” Burg adds. “And that is not capped.” 

Such was the case with Kenneth McGill, who was awarded $11 million in December when Correctional Healthcare Companies was found liable for keeping him in a Colorado jail without adequate medical care for 16 hours while he suffered a stroke. 

Often, liability is determined only after a great deal of effort and deliberation. “There isn’t an exact science to it,” Burg says, adding that it can require an investment on the part of the attorney to pay for expert analysis of the case—an accident reconstructionist, for example, to analyze the finer details of a car crash and determine which party was at fault. If the amount of liability doesn’t warrant a settlement large enough to justify the investment, most attorneys turn it down. 

It’s all about the math of the free market. “The business side of a law practice eliminates frivolous cases,” says Habas,”because lawyers cannot stay in business by filing those types of cases.”