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Monthly Archives: August 2008

What is life worth?

“‘If it saves one life, it’s worth it,’ goes a common refrain. So said The Chicago Tribune about a gun buy-back program in July. So said a Mercer County, Penn., cop about his department’s use of all-terrain vehicles for remote patrolling. So said a Massachusetts advocate for primary enforcement of seatbelt laws, and an Atlantic City, N.J., health official in support of needle-exchange programs.

The notion that no price is too high to pay to save a single life is a widely accepted view. But, according to A. Barton Hinkle, a Ricmond, VA Times Dispatch columnist, it is not accepted in Washington, D.C. — and for good reason. Inside the Beltway they take a very hard-nosed approach to the value of human life. Recently the EPA marked down its estimate of that value, from just a hair over $8 million to $7.22 million. The federal Department of Transportation, meanwhile, raised its estimate of the value of a life, from $3 million to $5.8 million. The Consumer Product Safety Commission has held its estimate steady for a decade, at $5 million. Government agencies need to put a price on human life to help them evaluate the merits of the choices they make. Suppose the Mine Safety and Health Administration is considering a rule to require a canary in every coal mine. If the rule would cost $10 million to implement, but would save 10 lives a year, then from a cost/benefit perspective it’s entirely worth the price.”

The columnist provides some useful insight into a question that personal injury attorneys are called upon to assess and consider on a regular basis. To view the full article, click here.

The article also reminded me of the book written by Kenneth Feinberg, the administrator of the 9/11 victim compensation fund entitled what is life worth. You can preview that book by clicking here. You can read the New York Times book review by clicking here.

In determining the amount compensates victims of the 9/11 tragedy, Feinberg was called upon to calculate the incalculable. For 32 months, he tried to “fill the hole in a family’s life with money,” attempting to bring some fairness to settlements for the families of wealthy stockbrokers, middle-class firemen and policemen, and immigrant restaurant workers. What Feinberg struggled with most was the awesome task of deciding the value of human life, acknowledging his own clumsy insensitivity at the beginning, and gradually learning to deal with grieving families who wanted as much to be heard as to be compensated.

So what is a life worth? It’s an interesting and daunting question to say the least. And as the article and book points out, there is no simple formula or answer.

Plaintiffs who reject settlement offers do worse at trial

At times, it is suggested that taking the case to a jury is akin to rolling the dice in Las Vegas. That gamble of going to trial does not pay off for most plaintiffs, according to a study of more than 2000 civil lawsuits from 2002 to 2005.

The study, conducted by DecisionSet, and to be published in the Journal of Empirical Legal Studies in September, noted that on average, getting it wrong cost plaintiffs at about $43,000. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million. Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.

If anything is to come out of the study, it is the idea that lawyers must fully advise their clients about the risks of going to trial, and must be honest with the client in assessing the case. A good lawyer has to be able to tell clients how a jury may see their case, and how they may see it differently than the client. Part of that is judgment, and part of that is diplomacy.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

For more on the study, you can read the New York Times article by clicking here, or the American Bar Association Journal article by clicking here.