Make the Most of Your Mediation – The Personal Injury Case

Doesn’t it seem like all personal injury cases should settle at mediation? Due to the mountain of available data, there is much more predictability with the outcome of PI cases than with other civil cases. Yet it still happens that PI cases that should settle during mediation end with no settlement and a degree of frustration. Here are five simple things participants can do to increase the odds of closing the file at the first session:

Submit your brief a month in advance. What, a month in advance? Yes, you read that right. And if you, as plaintiff’s lawyer, can submit it six weeks in advance, so much the better. It is no secret that it takes the defense a long time to evaluate and prepare for settlement. The decision of how much money to place on any case is made by many people sitting in many levels. The more notice defendant has of plaintiff’s contentions, the better the carrier can evaluate the claims by circulating plaintiff’s (thorough and well-written) brief through the chain of command. Analogously, if a key piece of evidence – say, the treater’s diagnosis – won’t be ready until the night before the mediation, consider rescheduling the mediation until the evidence can be intelligently considered by all participants.

Lead with a reasonable demand. Yes, you can ask for any number you wish, but is it really in your best interests to start quite so high? There are many problems with starting negotiations at an astronomical number. Chief among them are: (1) The other side won’t take you seriously; (2) Neither will they be worried about trying the case against that number; (3) Your client might fall in love with that big, fat  number; (4) At some point to settle the case you will need to drop precipitously, and you’ll hate doing that; and (5) The parties will spend a lot of time during the precious hours allotted to resolution just getting the parties to a reasonable starting point.  Avoid all these problems by leading off with a reasonable demand. There’s a market for pricing cases, and if you don’t have the retail book, ask an experienced PI lawyer for help.

Prepare your client. Yes, you have attended many mediations, but what about your client? Does she know what will happen during the day? That there will be long periods of time just spent waiting to hear what the other side has to say? That numbers will be exchanged that may seem disappointing and offensive? That she might be asked questions? Does she know what she’s supposed to wear? The more prepared your client is for the experience, the more likely she will be able to participate in it fully. Even though joint sessions are joining the ranks of endangered species, it is still true that one of the most powerful moments in a mediation can be the joint session where the plaintiff is permitted to explain her losses. Prepare her for that by practicing in advance.

Help the mediator help you. One of the ways that mediation works is that parties come to trust and engage in the process. Lawyers sometimes inadvertently prevent their client from doing so. For example, when the first offer is conveyed from the defense, the wise lawyer will say to his client, “This is a solid start. We started high, they started low. No we can talk about how to get to a real number.” This is so much more reassuring to the client than the lawyer who reacts with, “Outrageous! Bad faith! We’re outta here.”

Similarly, there will come a point when the neutral will talk to your client – either plaintiff or adjuster – about the value of the offer or demand and the risks of not settling. Many lawyers feel obligated to jump in and argue. Because your client trusts you, she may think that she should distrust the neutral’s thoughts. Instead, help your client trust the process by permitting the neutral to explain her concerns. If possible, agree with the neutral on some of the risks. You are not abandoning your role as an advocate by doing so – you are helping your client understand the process and make the best decision for herself.

Decide the case for yourself. Perhaps the main area where the defense is most vulnerable is in its risk of “groupthink” – that is, evaluating a case a certain way and then deciding and reaffirming the defense decision without fully considering fresh arguments from the plaintiff. Sure, most PI cases fall into broad and predictable categories, but sometimes plaintiffs come up with something new. How might a defendant driver be liable when plaintiff was passing illegally? It’s easy to reflexively reject a novel claim, especially when everyone on your team is only too eager to agree with that conclusion.  To avoid this mistake, think of what we instruct jurors: “Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury…Do not give up your honest beliefs just because the others think differently.” You don’t want to be hearing a convincing argument for the first time in trial.

So, to your repertoire of tools, add an extra measure of preparation and thoughtfulness. Will we now be able settle all PI cases? Let’s find out.

Importance of Neutrality

Louis Marlin, JAMS mediator and arbitrator

Louis Marlin, JAMS mediator and arbitrator

October 12 kicked off the 2015 ABA Mediation Week. This year’s theme is “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” Lawyers and mediators understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better and by finding ways to get their important interests met while staying true to their values and belief systems.

Following is an interesting perspective that touches on that subject.

Attorneys benefit from a unique educational experience that trains us to look at problems and challenges from all sides. We learn to think like lawyers, being able to examine issues dispassionately, seeking to find solutions for the benefit of our clients no matter what side of a dispute we are on.  In fact, when representing a client, we frequently try and consider what the opposition would do to defeat us as a method of planning our strategy.

However, in the world of litigation, this broader “two-sided” view of issues and disputes, while helpful, is frequently only one tool used by attorneys. Litigators are, by definition, advocates, and when it comes to trials, mediations and arbitrations, their job is to steer the proceeding or discussion to a view of the dispute that puts their client in the most favorable light possible.

Importantly, the ability to view both sides of an issue returns to the fore when a lawyer moves from the position of advocate to becoming a “neutral” – as a judicial officer, arbitrator or mediator. Making this transition – moving back to the mindset of taking a holistic view of a problem – requires a conscious effort to shed the sword of advocacy for the cloak of neutrality. Neutrality after years of advocacy means accepting the challenge of taking a fresh look at issues that are presented and disputes which require resolution.

The task is not a simple one. It requires the effort of distinguishing between the knowledge one has on a subject from the bias one may have for one side or the other. Having recently undertaken this transition myself, I have found the following considerations to be helpful in this process:

  1. Read the mediation or arbitration briefs carefully. Serving as a neutral in connection with a dispute involving an area of law with which the neutral is very familiar invites “skimming” the briefs. This can easily result in having the neutral’s bias creep into the proceedings.
  2. Ask questions. If a party’s position or argument is unclear, it is the neutral’s obligation to seek clarification. In mediations, both sides are entitled to the neutral’s full and complete understanding of their respective positions.
  3. Limit your decision. In regard to trials and arbitrations, a neutral’s decision should be crafted to fall within the four corners of the dispute presented, and no further.
  4. Know your role. While a neutral may well serve the role of trier of fact in an arbitration or trial, that role is much different in a mediation. The neutral must keep foremost in his/her mind that the role of a mediator is to help move the parties to a mutually acceptable resolution, and that taking a hard and fast position for one side or the other will ultimately result in a lack of credibility that will hamper the neutral’s effectiveness.

Actively working to prevent bias from impacting decisions and actions is the key to transitioning from attorney to credible and effective neutral.

How Likely Am I to Win? Risk, Uncertainty & the Turkey Illusion

Richard Birke

Richard Birke

By Rich Birke

When parties are faced with an attractive settlement offer, they frequently wish to compare the offer to what they might get at trial, which is the product of the odds of winning times the value of the verdict or award.   Naturally, they ask their lawyer “how likely am I to win?”

What kind of answer is called for? Answers to questions like this come in two flavors.  Flavor one – you know the odds – is called decision-making under conditions of RISK.  Flavor two – you don’t know the odds – is called decision-making under conditions of UNCERTAINTY.  The two aren’t at all alike!  The first is more like a slot machine or a lottery.  The second is more like picking stocks, predicting earthquakes and making most business decisions.  Confusing the one for the other can be a disaster.

In his brilliant book Risk Savvy, How to Make Good Decisions, prolific author and scientist Gerd Gigerenzer describes the dangers of confusing one kind of decision with the other.  He says risks can be calculated when there is (1) low uncertainty – a predictable and stable situation (2) few alternatives – not too many factors to estimate (3) a high amount of data available to make these estimations.

However, since at least the 1700s, we’ve known that people prefer risky decisions to uncertain decisions – so much so that they will turn uncertain decisions into risky decisions in their minds, even when reality is different.  An example of this is the “turkey illusion.”

If you want to figure out what is likely to happen tomorrow, you can look at what’s happened in prior days.  If you are in the Gobi Desert and you want to know whether it will rain tomorrow, you can look at the prior day and the day before that, and that data will help you determine tomorrow’s weather.  This “rule of succession” means the past is predictive of the present.

But not for a turkey.  If every day the farmer feeds and pets the turkey, the turkey could calculate the odds starting with the fourth Friday in November and conclude “I’ve been fed and petted 159 days in a row – the odds of being fed and petted on the 160th day are 160/161 or 99+%.”  And that logic will hold true all the way to 364/365…and then Thanksgiving will come and the poor turkey will have logically concluded that morning that it has nothing to fear – because a savvy risk-taker would deem the odds of death as vanishingly small.

Gigerenzer attacks this topic from many vantage points. He analyzes leadership decisions and the work of CEOs (ch. 6), medical decisions and the ploys used by and on doctors (ch. 9), consumer decision-making and the effects of misleading ads (ch. 5) and more.  Each time, there are simple tips and rules of thumb to help navigate through these sometimes murky waters.

Can a lawyer predict with accuracy the outcome of a potential case? Let’s analyze that question further, together, in the days to come.  For now, I strongly recommend you go out, buy and read Risk Savvy.  It might just save your neck come Thanksgiving.

Risk Savvy: How to Make Good Decisions is available from Viking Press and was published in hardback in 2014.

Understanding the benefits of a private judge in California

Hon. Patrick J. Mahoney (Ret.)

Hon. Patrick J. Mahoney (Ret.)

Civil litigants, how would you like to have a process that allows the parties to determine the decision-maker, preserves all civil remedies and appellate rights and ensures effective case management and hearing and trial dates that proceed as scheduled? This process has all of the perceived benefits of arbitration while ensuring the result is subject to appellate review.

California has just such a procedure. The California Constitution, Article VI and the Code of Civil Procedure section 638(a) authorize the parties to stipulate to a private judge and to fashion the authority granted to the person selected. Stipulations vary in scope from a narrow discovery issue to all aspects of civil litigation including the right to act as the settlement judge as well as the trial judge. This affords the parties the opportunity to control the litigation process that does not exist in the court system, and ensures that the decision-maker has the time to consider the issues and to provide the parties with hearing and trial dates that proceed as scheduled.

Given these benefits, it is surprising that this process is neither widely known nor utilized except in family law cases involving substantial wealth. One reason is the right in most civil cases to have the case decided by a jury. Neither the California Constitution nor the Code of Civil Procedure address the jury trial right, and it is unlikely that the state courts are prepared to use their strapped resources to summon jurors for parties’ utilizing private judges.

Recently at JAMS, this issue was addressed by the parties stipulating to the use of jurors located by a jury consultant firm. The lawyers conducted voir dire and the jurors were paid for their services. The parties used the jurors to decide test cases to provide markers for settlement of a large class of cases. In the recent ABA Litigation magazine (Volume 41, No. 4, Summer 2015), there is a description of a private trial of a business case using jurors where the lawyers agreed that the verdict would be treated as an arbitration award.

Both of these approaches involved giving up substantive appellate rights. A viable alternative is for the parties to give up appellate rights only related to jury selection, while preserving all other substantive and procedural grounds for appeal. In reality, little is given up by waiving this right for it is extremely rare for a civil case to be reversed based on jury selection. As a consequence, in a case that warrants use of a private judge, the obvious benefits of a private judge trial out-weigh the right to challenge jury selection.

If you believe your case would benefit by using a private judge to manage and decide the case, do not be put off by your opponent’s insistence on a jury trial. There is more than one way to secure the benefits of a private judge and the insight provided by a jury verdict.