Day on Torts
Eric Turkewitz, a plaintiff’s personal injury lawyer in New York, wrote about it first. He told us about a plaintiff’s lawyer in New York who sought $30,000,000 for damages to a child who lost part of his ear lobe after a dog bite.
Eric was upset because this "courtroom bulldog who won’t be leashed" (according to her website) either didn’t know or didn’t care about a 9-year old law that prohibits mentioning the amount sought when filing a lawsuit. These actions, in Eric’s view, make the job of plaintiff’s lawyers who choose to follow the law more difficult. He is right.
Then, Max Kennerly, a plaintiff’s personal injury lawyer in Philadelphia, weighed in. He agreed with Eric, but went on to explain that the $30,000,000 request bore absolutely no relationship to amount of the damages in the case. Once again, I agree.
I will add this thought: how in heaven’s name does the New York lawyer who filed this case ever expect to have a satisfied client at the end of this case? Although we do not state an ad damnum in our complaints (except in products liability cases, where they are required by statute), trial judges will normally require us to state an amount certain some number of months into a case. Our view is that we will have a better feel for the case as time goes on and, when we state an ad damnum provision, it will have some basis in reality.
We take this course of action for several reasons, but mainly for our clients. Stating an ad damnum too early will almost always result in it being higher than it should ultimately be. Our experience is that regardless of what we say to our clients, whatever number we put in the ad damnum is a number that sticks in their heads. And, when the number is way too high, it will often lead to dissatisfied clients.
In the New York dog bite case, the incident occurred on May 18, 2012. The article is dated June 5, 2012, so the lawsuit was filed less than three weeks after the incident. There is no way – no way – that any lawyer can truly evaluate that case in three weeks – before plastic surgery has been attempted to repair the damage (except for the initial surgery), before the results of any counseling have been known, and before the impact of the incident is truly known.
So, what has happened is that the plaintiff’s lawyer has, in violation of state law, stated an ad damnum that at the end of day will bear little resemble to the ultimate recovery in the case and has likely set very unrealistic expectations for the clients.
Of course, it did have one other effect: it got the lawyer’s name mentioned in the New York Post.