A provocative article caught my eye recently. Justice in Crisis: Victim Access to the American Liability System. The author, Joanna Shepherd, is an Associate Professor of Law at Emory. The question she intended to answer was simple. What amount in damages must a medical malpractice plaintiff’s attorney expect in exchange for representing a potential client? The common refrain from the trial bar is that everyone deserves their day in court. But, if many would-be plaintiffs can’t find a lawyer to represent them, isn’t that aspiration hollow?

Ms. Shepherd sent her survey to self-described medical malpractice attorneys across the U.S. Here’s what she learned. It’s expensive to litigate and economic reality causes many attorneys to reject many legitimate cases. “The attorneys indicate[d] that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases.”


More interestingly, over half of the attorneys responded they will not accept a case they are almost certain to win unless the expected damages exceeds $250,000. To drive home that point: that’s for a case they would be otherwise be almost certain to win. For a case that they are only slightly likely to win (e.g. 51% or better), the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Not a small sum.


Does this mean that no attorney will take a low value case – meritorious or otherwise? Not so fast. It means that seasoned veterans in prosecuting med mal claims shy away from low value claims. But, second and third tier attorneys might not be so dissuaded. Such attorneys often know not what they know not. And, a lawsuit is still a lawsuit.