If someone breaks your arm or your leg, a competent lawyer can probably give you a reasonably good estimate of how much your prospective case is worth.
But if someone breaks your heart, putting a value on your legal claim becomes decidedly more difficult.
North Carolina is one of the few states that still recognize so-called “heart balm torts” such as alienation of affection and criminal conversation—essentially claims for home-wrecking and adultery, respectively, brought by an aggrieved spouse against the alleged interloper. If the spouse prevails at trial, jury verdicts can be substantial, with some juries having awarded verdicts exceeding a million dollars.
But jury trials in such cases are very much the exception to the rule. The vast majority of cases settle out of court, and often they settle as part of the divorce proceeding between the estranged spouses, with the jilted spouse agreeing to drop all claims against the paramour in exchange for concession like additional marital property or a more favorable custody arrangement, which may be difficult to put a price tag on. And even if the plaintiff and defendant do settle the case directly, those settlements are almost always confidential.
Family law attorneys say that makes it difficult to give prospective clients a meaningful sense of what their case might be worth, and thus the extent to which it’s worth pursuing.
“I think when you look at alienation of affection cases, most of the ones that go to trial are the really good ones and the really bad ones,” said John Vermitsky of Morrow Porter Vermitsky & Taylor in Winston-Salem, a leading expert on alienation of affection suits.
“So as a result, you end up seeing oftentimes either a very large verdict or a very small verdict. A lot of the average, run of the mill cases are settled in a different way … I think that’s the challenge, and so you’re going to have trouble getting a good range of value for alienation of affection cases.”
And in many instances, those very large verdicts may not be as valuable as they appear, since plaintiffs may not be able to actually collect the full amount. Oftentimes, Vermitsky said, those large verdicts occur in cases where a defendant is either representing themselves, or simply failed to appear in court.
Lisa Angel, a family law attorney with the Rosen Law Firm in Raleigh, says that sometimes clients have very clear actual damages, such as bills for counseling or attorneys or private investigators. But in the vast majority of the cases, the biggest component of the damages is the pain and suffering, which while significant, is much harder to put a value on.
“In an average automobile accident, there are a lot of professionals that really know the range of settlements,” Angel said. “But with alienation of affection, it’s not like you have an alienation of affection bar or a mediator who does these all of the time. And because we don’t see that many trials, it makes it much harder for us to have a range and have a benchmark to use.”
Angel said that unlike in other types of cases, it’s difficult for attorneys to divine the factors that make the settlements and the damages vary, whether those might be the number of years the spouses where married, or the length of affair.
Knowing the ranges of what other cases are settling for in similar circumstances would be useful for both plaintiffs’ and defendants’ attorneys, she said—but settlements are the reality in most cases, because attorneys generally have to take alienation of affection cases on a billable-hour model, and very few plaintiffs have the resources to pursue such cases all the way to a jury trial.
Vermitsky, who has become well known for defending clients facing claims for heart balm torts, said that the lawyers who handle a lot of them end up becoming good at valuing them because they know what their own cases settle for. He said he can oftentimes give clients a pretty decent range for a case, by looking at different factors that either increase or decrease its value.
But attorneys who haven’t personally settled a high number of alienation of affection cases will typically find themselves having to make much wilder guesses.
“It’s incredibly difficult,” Vermitsky said. “I think that’s the challenge, and you’re going to have trouble getting a good range of value for alienation of affection cases.”
Follow David Donovan on Twitter @NCLWDonovan