Factors that Impact the Expected Value of the Case

Here’s what to consider before taking steps towards Mediation:

Factors that Impact the Expected Value of the Case…

1. Applicable law

a. Which laws apply?

b. How clear are the laws (unsettled, unambiguous, conflicting)?

c. How applicable are the laws (precedent directly on point, or not)?

2. Actions by other parties

a. Risk of counterclaims?

b. Will there be third-party defendants?

c. Possible counterclaims and cross-claims by third parties

d. Joining together to pursue third parties

e. Class actions

3. What relief is available?

a. Damages

b. Injunctive relief

c. Declaratory judgment

4. Availability of defenses

a. Immunity (e.g., sovereign, diplomatic, charitable)

b. Statute of limitations (some or all claims)

c. Lack of standing

d. Mootness, ripeness

5. Theory of the case

a. Is it coherent?

b. Is it consistent?

6. Counsel

a. Quality and experience

b. Demographic fit with decision makers

c. How well do they know the judge, and vice versa (positive/negative)?

d. How well do they know each other (good/bad relationship)?

7. Relevant facts

a. Disputed, undisputed?

b. Quality of the evidence

i. Documentary

ii. Witness testimony

c. Availability of evidence (who has it?)

d. Cost of obtaining evidence (e.g., electronic discovery)

8. Expert testimony?

a. How good?

b. Other party’s experts?

9. Principal-agent issues 

a. Influence of business colleagues, family members, etc.

b. Insurers (might have their own agenda)

c. Insureds may need to consent (e.g., doctors in medical malpractice cases)

10. External factors

a. When will the case be tried? (e.g., Christmas is a good time for plaintiffs)

b. Public/cultural attitudes (e.g., tide has turned against “hot coffee” cases)

11. Who are the decision makers?

a. Judge/arbitrator - known/unknown? fair?

b. Jury—demographics

c. Appeals court—likelihood of success of appeal (might depend on type 

of case)

12. Jury appeal

a. Fairness issues

b. Likable parties, witnesses

13. Measure of damages

a. Liquidated

b. Contractually limited (e.g., no lost profits)

c. Conventional (e.g., tort plaintiffs get three times special damages)

d. Punitive

e. Prejudgment and post-judgment interest

14. Attorney fees and costs (e.g., depositions)

a. Recoverable under fee-shifting statute?

b. Contingent fee arrangement?

15. Enforceability of judgment?

a. Jurisdictional problems

b. Practical problems (e.g., cost of enforcement, defendant’s lack of funds)

16. Impact of judgment on other cases

a. Plaintiff could leverage favorable result against other defendants

b. Defendant risks suits by other plaintiffs, or might need favorable precedent to deter suits

17. How long until trial/appeal?

a. Time value of money

b. Effect of uncertainty on other plans

18. ADR provisions/statutes

a. Mandatory arbitration?

i. Known or unknown arbitrator

ii. Rules of evidence apply, or not

b. Screening panels (e.g., medical malpratice cases)

19. Confidentiality rules/statutes

a. Mandated reporters (child abuse/neglect; professional misconduct)

b. FOIA or open meeting laws

c. Non-disclaimable reporting rights (professional misconduct)

d. Optional reporting (e.g., FINRA disciplinary record)

20. Financial resources

a. Parties’ financial resources to fund the litigation

b. Private market for litigation funding

21. Other resources

a. Time/distraction

b. Emotional resources

22. Risk preferences of the parties and counsel

a. The lawyers

i. Plaintiff’s counsel could attract other clients

ii. Defendant’s counsel could attract other clients

b. The parties

i. Personal goals

ii. Law reform goals (e.g., same-sex marriage)

23. Reputational impact—negative

a. Plaintiff’s risks (e.g., employee suing employer)

b. Defendant’s risks (e.g., product reputation)

c. Personal embarrassment or invasion of privacy (e.g., tax returns)

24. Reputational impact—positive

a. Vindicating public image (e.g., pursuing defamation claim)

b. Asserting public interest (e.g., whistleblower)

c. Establishing product safety

25. Psychological value

a. Vindication, retribution

b. Sending a message to internal constituencies (e.g., business colleagues, 

family members)