Every day, the newspaper websites (does anyone read an actual newspaper, anymore?) have articles loudly proclaiming the amount of money that victims seek in lawsuits. These media accounts don’t tell people that the amount claimed at the beginning of a lawsuit usually has very little relationship to what is claimed at the end of the lawsuit. The cynic in me thinks that the news stories are simply for sensationalism, but pragmatically I bet that the media just has a very poor understanding of how lawsuits work.
Here in Maryland, we have courts with the following choices:
- District Court: Lawyers must specify the upper end of what they are seeking, either (a) $5,000 (small claims cases); (b) $15,000 (for cases that can only be heard in the District Court); or (c) $30,000 (for cases that can be heard in the District or Circuit Court).
- Circuit Court: Lawyers typically tell the court if they are requesting a maximum of $30,000, or some amount higher than that. The Circuit Court can hear cases with any amount of money in controversy over $15,000.
- United States District Court: civil diversity cases must be filed for a minimum of $75,000.
- Medical Malpractice cases: Lawyers are not allowed to claim a specific amount of damages in medical malpractice cases when seeking over $30,000 (Md. Cts. & Jud. Proc. Â§ 3-2A-02(b)).
Journalists cite to the amount “sought” in the lawsuit (called the ad damnum clause) because, unless it is a small case filed in the District Court, it is usually a fantastic number. Sometimes it is one, two or three million dollars (or even more). There are two reasons that lawyers request outrageous amounts in their early lawsuit complaints.
First, personal injury lawyers often don’t know the value of the case at the beginning of the lawsuit. So much depends upon the discovery process, which involves the exchange of information between the parties during the case. Lawyers frequently enter a case with one opinion about the value, and have a completely different opinion by the middle of the case.
The second reason is that the courts require plaintiffs to put a number down, and problems can arise if the judge or jury awards an amount more than what the plaintiff claimed in his lawsuit. It is possible that a court would limit the plaintiff to what he requested in his complaint, and the lawyer could even get sued for legal malpractice. Therefore, the safest route is for the plaintiff to request a large amount that could not possibly be awarded under the law.
In personal injury cases like Maryland automobile accidents, plaintiffs can seek all economic damages relating to their injuries (which includes lost wages and medical bills), and a portion of non-economic damages (including pain, suffering, mental anguish, disfigurement and inconvenience). We have a limit on non-economic damages. For most non-medical malpractice cases, the 2012 cap (effective for injuries that occurred between 10/01/11 through 09/30/12) is $755,000. So, a lawyer should claim an amount of damages that equals the full cap plus whatever economic damages he estimates at the time of filing suit. Then, because we are risk averse, we frequently add a couple of million dollars. You never know-the non-economic damages cap could be overruled, or something might happen to increase the value of the economic damages later in the case.
If we didn’t claim a high amount of damages in the ad damnum clause, our clients would have a good legal malpractice claim if the jury awarded more than we asked for, and the judge refused our request to modify the ad damnum clause.
Even Maryland courts know that the ad damnum clause is a mere formality-parties are routinely forbidden from mentioning the amount at trail because it is irrelevant to the case. The legislature has gone so far as to prohibit ad damnum clauses in medical malpractice cases that are filed in the Circuit Courts for more than $30,000. The important number is what the plaintiff asks for on the last day of closing arguments-that’s what the plaintiff is really looking for at the end of the case. And that number rarely makes the newspaper headlines.
It would be nice if the Maryland legislature would take the lessons learned from medical malpractice cases and do away with requiring plaintiffs to put a specific number in their ad damnum clauses for circuit court cases. We don’t like putting those meaningless numbers in our complaints.