By Roy Strom

T rial lawyers pride themselves on winning over juries. But first, they must decide to goto trial rather than settle. That decision sometimes rests less on one’s ability to win overa skeptical jury and more on playing the odds.

Is a jury in Cook County or one of the collar counties more likelyto rule in favor of the defense? Is my client too old to elicitsympathy? How often do juries vote in favor of the plaintiff suingover a medical-malpractice neglect claim? What about wrongfuldeath?

Think you know the answers?Chicago Lawyer constructed a quiz using data from the Jury Verdict

Re p o r t e r — a division of Law Bulletin Publishing Company — andpast settlement reports to help trial lawyers translate the an-

swers to those questions into the best trial strategy and tostay up to date on what firms are raking in the biggest

settlements.Take the quiz below. Test your courtroom acumen. The results

might change how you approach your next settlement hearing.

Test your knowledge of settlementrates in med-mal cases, the top

names in plaintiff firms and whenlawyers start ‘running scared.’

Photo by Lisa Predko

What do you really know aboutverdicts and settlements?

October 2015

Volume 38 Number 10 • chicagolawyermagazine.com

Question No. 1: True or False? The plain-tiff in the largest settlement in the 2015Settlements Report, worth$61 million, wasrepresented by adefense firm.A. TrueB. False

Question No. 2: Over the past 10 years, whichfirms have ranked No. 1 in Chicago Lawyer’s

annual settlements report?Circle all that apply.

A. Burke Wise Morrissey KavenyB. Clifford Law OfficesC. Corboy & Demetrio

D. Power Rogers & SmithE. Salvi Schostok & Pritchard

Question No. 4: Where are deadlockedjuries more common?A. Cook CountyB. The collar countiesC. I’m at an impasse;I can’t decide

Question No. 5: In most types of medical-malpractice cases,the defense verdicts become more likely as the plaintiff getsolder. For plaintiffs witha cardiovascular-relatedclaim, at what age rangedoes the plaintiff-verdictwinning rate dip below50 percent?A. 10-19 years oldB. 20-39 years oldC. 60+ years old

Question No. 6: Whichtype of case is more likelyto settle?A. A medical-malpracticelawsuitB. A personal-injury suitresulting from an autoaccident

Question No. 7: In which typeof case is a defense verdict morelikely?A. A medical-malpractice lawsuitB. A personal-injury suit resultingfrom an auto accident

Question No. 8: Among thefollowing types of medical-malpractice claims, whichsettles most frequently?

A. Cardiovascular-related claimsB. Wrongful-death claimsC. Neglect claims

Question No. 9: Among verdictsreached in the following types ofmedical-malpractice claims, whichmost frequently favor the plaintiff?A. Cardiovascular-related claimsB. Wrongful-death claimsC. Neglect claims

Question No. 3: True or False?Juries in Cook County aremore likely to rule in favorof the plaintiff than juriesin the collar counties.A. TrueB. False

Answer No. 1: True. The plaintiff whoreceived the largest settlement wasrepresented by a defense firm.As if spoiling cases brought by Chicago’sbest-known plaintiff firms wasn’t enoughfor Swanson Martin & Bell, the high-powered litigation-defense firm alsograbbed the largest settlement of the year.P. Stephen Fardy (featured on the coverof the magazine) and Peter G. Skikonegotiated $61 million for their client,Business Logic, which filed a trade-secretslawsuit alleging Morningstar Inc. used itssoftware without permission to manageretirement accounts.Swanson Martin & Bell is better knownfor defending hospitals and health-careprofessionals in medical-malpracticelawsuits. In one 12-day span last year, thefirm won four med-mal defense verdicts inCook County. But it also features agrowing intellectual property practice ledby Fardy, who represents both plaintiffsand defendants.“We’ve had other seven-figuresettlements, but not eight-figuresettlements,” said Fardy, who began thepractice after the firm paid for him to earnan IP LL.M. in 2001.Today, the firm lists 16 lawyers in its

intellectual property litigation andtransactional services practice.“This was a culmination of 14 years ofhard work,” Fardy said.

Plaintiff’s lawyers can take some solacein this though: The defense firm doesn’tplan on venturing into contingent fee-based plaintiff-side litigation any timesoon.

Answer No. 2: B, C, D. Only Clifford LawOffices, Corboy & Demetrio and PowerRogers & Smith have topped the charts inthe past 10 years.Parity? Save it for the sports leagues. Theupper echelon of Chicago’s plaintiff firmshas been dominated during the past decadeby just three firms: Clifford Law Offices,Corboy & Demetrio and Power Rogers &Smith. They are the only firms to haul inthe most money in any given year forclients in settlements worth more than $2million over the past decade.Even among those three firms, PowerRogers & Smith has been separating itselffrom the pack: It has ranked No. 1 in thesurvey in each of the past five years. Thelast time it was out of the Top 3? 2005. Sohow does the firm do it? Partner Joe Power attributed the firm’ssuccess to its attorneys’ work ethic and toa history of strong relationships withattorneys who refer them cases.He begins looking for lawyers dedicated

Dynasties: One of these three firms has ranked No. 1 in each of the last 10 Chicago Lawyer Settlement Reports. Graphics byMaria Marquez

High, low: Cook County’s largest cases create a wide gap between the court’s median verdicts and settlements and the averages.

to their practices with a single question.“I was joking about this yesterday: Myfirst question in an interview of a lawyer isif they’re a golfer or not,” Power said. “If Iget an answer to that question, I knowwhether or not I want to continue with theinterview.” Translation: If you have an upcoming jobinterview with Power, ditch your clubs.

Answer No. 3: B. False. Juries in CookCounty and the collar counties rule infavor of the plaintiff at nearly the samerates.In Cook County, 51.6 percent of verdictsreported to JVR have gone to plaintiffssince 2009, while 51.0 percent of verdicts inthe collar counties have been for thelawsuit-filer.While it is well-known that CookCounty juries have historically returnedhigher verdict amounts, it is less obviousthat they are statistically just as likely tofind in favor of the defense as are theircounterparts in suburbia.“What separates Cook County from thecollar counties is, in the serious cases,you’re much more likely to get the eight-figure verdicts in Cook than in the collarcounties,” said Patrick A. Salvi, whose firm

maintains offices in Chicago and inWaukegan.That sentiment is captured by another

data point — the vast difference betweenthe average and median value ofsettlements and verdicts in Cook County.The median verdict amount is $125,000— half of verdicts went higher, half wentlower — but the average verdict amount ismore than 10 times higher at $1.3 million.The spread between the median andaverage settlement is narrower, with themedian at $700,000 and the average at $2million; just less than three times themedian.

Answer No. 4: A. Juries in the collarcounties are much more decisive thantheir Cook County peers.While there hasn’t been a singledeadlocked jury in the collar counties inthe past five years reported to JVR, therewere 24 in Cook County, averaging just lessthan five a year, causing plaintiffs anddefendants to shoulder the extra cost of aretrial or, in some cases, leading to asettlement. Take comfort, though, in thefact that deadlocks still account for a mere1 to 2 percent of trials in Cook County ayear.

Answer No. 5: B. Plaintiffs with a

Flip the script: Cook County may be known for higher damages awards than the collar counties, but its jurors are not necessarilypro-plaintiff.

Age Bias: A stark example of the difficulties facing older plaintiffs.

cardiovascular claim lose more often thannot starting in the 20 to 39 age range.For plaintiffs who are 20 to 39 years old,the defense won 71 percent of verdicts incardiovascular cases from 2009 to mid-2015.It is well-known that older plaintiffs fareless favorably in the courtroom thanyounger ones. But nowhere is that trendbetter seen than in cardiovascular cases.There were zero defense verdicts whenthe plaintiff was 9 years old or younger.That percentage jumped to 50 percent inthe 10-to-19 age range. For plaintiffs aged20 to 39, the defense won 71 percent ofverdicts. For those 40 to 59, 75 percent ofcases ended in defense verdicts and forplaintiffs 60 and older, 84 percent of thetrials went to the defense.

Answer No. 6: A. Medical-malpracticecases are more likely than auto cases tosettle.Medical-malpractice lawsuits weresettled 56 percent of the time, while only42 percent of personal-injury suitsresulting from auto accidents got settled.The reason? See the answer to the nextquestion.

Answer No. 7: A. Defense verdicts aremore likely in medical-malpractice cases.The defense won 67 percent of verdicts

in medical-malpractice cases from 2009 tomid-2015, while they won only 28 percentof verdicts in auto-accident trials.Venturing a guess at how often thedefense wins in med-mal cases, Powerpegged the number at around 80 percent. He was not going from personalexperience, however. He said he has never

lost a verdict in a medical-malpractice case.He stresses one tactic: Simplify.“If it’s a very complicated case and itremains complicated to the jury, invariably,in my opinion, the defense is going to win,”Power said. “I want the jury to say tothemselves, ‘I understand what wentwrong. How come the doctor didn’t?’”

Answer No. 8: C. Neglect claims are morelikely to settle than cardiovascular orwrongful-death claims.Neglect claims settled 75 percent of thetime, while cardiovascular claims settled 48percent of the time and 41 percent ofwrongful-death claims settled.See the next answer to understand whythis result is unexpected.

Answer No. 9: C. Verdicts in neglect casesare more likely to favor the plaintiff thanverdicts in wrongful-death orcardiovascular cases.Verdicts in medical-malpractice neglectcases favor the plaintiff 49 percent of thetime, compared to 28 percent in wrongful-death trials and 22 percent incardiovascular trials.This bucks a general trend seen acrossother types of cases: When verdicts are wonless often by the plaintiff, cases are morelikely to settle.

Daniel Wolfe, a senior vice president attrial consultancy Decision Quest, saidplaintiff lawyers become less likely to trycases as the percentage of defense verdictsincreases.“The plaintiff attorneys start runningscared,” Wolfe said. “They see an increasein defense verdicts and there’s thatphenomenon. Perception becomes reality.” For instance, medical-malpracticeverdicts go to the defendant much more

often than auto personal-injury verdicts (67percent versus 28 percent) and also go toverdict far less often (44 percent of casesversus 58 percent). Among medical-malpractice claims, the trend also holdstrue when comparing wrongful-deathlawsuits to cardiovascular lawsuits:Wrongful-death cases go to verdict morefrequently and the plaintiff wins thoseverdicts more often.Neglect cases seem to be an outlier. They

go to verdict less often than any other claimtype in the data despite the fact thatplaintiffs have a relatively high chance ofwinning (49 percent).

Your results?1 to 3 correct: Law student.4 to 6 correct: Recent graduate. 5 to 8 correct: Partner.9 correct: You must not play golf. n

rstrom@lbpc.com

© 2015 Law Bulletin Publishing Company. Reprinted with permission from Law Bulletin Publishing Company.