Link to original WordPerfect Document
87 N.J.L.J. 609
September 24, 1964
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 50
Verdict of Expectancy Service
Furnishing Data
An attorney representing a party in a personal injury action
in which a general verdict was entered inquires whether he may
properly accede to a request from a publishing concern to amplify
in certain respects facts stated in a newspaper report of the case.
If it is found to be proper to supply such information under any
circumstances, he inquires whether he must first obtain the consent
of his client.
Specific information requested is the amount of medical
expense and loss of earnings of the injured person, description of
the injuries, the amount of plaintiffs final settlement demand and
any settlement offer, and a statement of "Liability Facts." The
concern making the request publishes for sale to lawyers, insurance
companies and others, a loose-leaf book which it describes as a
"Jury Verdict Expectancy Service," and an edition is published for
each state. An advertising brochure issued by this concern urges
its use "for more profitable personal injury claim and law suit
management." The service includes so called "personal injury and
liability evaluation tables" which claim to be based upon over
20,000 personal injury verdicts collected from all over the United
States and analyzed by "an outstanding research staff who have
placed the evaluation and trial of personal injury cases on a
scientific basis." These tables and other information contained in
the service are designed for the purpose of showing the "current
verdict expectancy for all bodily injuries usually encountered in
personal injury accidents." The concern's brochure suggests that
citing the valuation tables to opposing personnel usually results
in prompt settlements and citing them to one's client makes for a
satisfied client. The statement is made that such valuation tables
have been tested for over two years by several thousand lawyers,
insurance companies and others who have found that the tables can
be relied upon as a valid means of predicting jury verdicts. For
the first time, it states "you can predict trial results in your
own jurisdiction with the same degree of soundness that life
expectancy tables predict longevity." The advertising brochure
lists an advisory board containing the names of a number of very
prominent lawyers in the personal injury field, two professors and
the vice president of an insurance company.
The concern publishing the service has furnished sample copies
of the publication to this Committee. In response to the suggestion
that the Committee would be interested in any additional data from
the company, its editor has made the statement that it is a
research organization which is compiling information of valuable
use to the profession. He calls attention to the fact that the
court involved in this case is a court of record and accordingly
the records of what occurred at the trial are available to the
public, that most information received is merely used in
statistical work and is not published with the name of the case or
attorneys involved. He contends that his concern is merely seeking
to check the accuracy of information received from public sources
and seeks additional information, "none of it confidential," so as
to make the record meaningful. He states further that the concern
has received the cooperation of the foremost law firms in the
country.
Two questions are involved. The first concerns the matter of
public policy, the second the matter of the attorney's obligation
not to disclose confidential information.
On the first question, it is the Committee's opinion that
there is no inherent reason why such information should not be made
available to a legitimate research concern. An attorney handling a
personal injury action is faced with the necessity of evaluating it
and deciding on the basis of such evaluation whether to settle the
case or to try it, and, if to settle it, on what basis. Such
decisions are extremely important to the client as well as to the
attorney.
There is no established method or formula for evaluating
personal injury actions, but the amount of recovery in similar
actions for similar types of injuries is one of the factors which
can and properly should be used in making the required
determination. Any information which will be helpful or serve as a
guide to the attorney in making a proper decision or recommendation
should be used. Such information on a statewide or national basis
showing the range of recoveries in similar cases should certainly
be extremely useful.
The result of such a service would appear to supply a tool by
which the legal profession and others concerned with personal
injury actions might better serve their clients in bringing fair
and equitable settlements. The more accurate the service, the more
valuable it should be in the interest of the clients and,
therefore, the legal profession. For a lawyer to supply information
by which that service can provide as accurate a statistical and
factual basis as possible for its publication is entirely
consistent with that objective. Therefore, from the standpoint of
public policy, the service appears to be a legitimate one.
The second question must be answered on the basis that it is
the attorney's obligation not to disclose to any source, no matter
how commendable, information concerning his client's case which is
not a matter of public record, unless it is done with the approval
and consent of the client. The amount of any jury verdict obtained
in a court in this State is a matter of record and may, therefore,
be divulged without consent of the client. Other matters of record
may similarly be divulged. Information as to settlement demands and
offers is clearly confidential and should not be disclosed without
the consent of the client. The nature of the injuries, the facts
concerning liability and the amounts recovered for loss of earnings
and medical expenses comprise information not ordinarily separately
stated in the verdict. These items cannot correctly be said to be
a matter of public record, even though the evidence as to them upon
which the verdict may ultimately be based is a matter of record. To
the extent that any such information is not clearly a matter of
record, it should not be revealed without the client's approval.
This Committee should not be understood as endorsing the
particular service, its reliability, or the accuracy of its claims.
* * *
This archive is a service of
Rutgers University School of Law - Camden