MEDIATION IN A PERSONAL INJURY CASE - CHAPTERS FIFTEEN AND SIXTEEN
HIRE AN ATTORNEY WHO IS
A BONA FIDE LITIGATOR
The only way to obtain top dollars in mediation is by presenting a credible threat in the courtroom. It is for this reason that it is critical to hire an attorney who is a bona fide litigator. If the carrier knows that an attorney will go to trial and probably win, they will pay more in order to avoid that outcome. If, however, a lawyer has a lousy set of facts and the laws are against them, then the other side will never pay real money, regardless of how skilled the litigator. It is called risk analysis. If there is no real risk, then there is no real value. This is why it is paramount that the threat of trial be a real one based on law and evidence rather than some lawyer sneering at the other side while holding a pair of two’s.
The Difference Between A Real Trial Attorney And Someone Who Has Tried A Few Cases
A real trial lawyer, as opposed to someone who has only tried a few cases, is a brilliant storyteller. A real trial lawyer will go the extra mile to make their case come alive to the jury through the use of creative exhibits and a compelling narrative, which is hard to beat. They also outsource a number of skillsets, in line with the old quote, “No man is an island.” Some lawyers will try to save money in litigation by doing everything themselves, but that’s a bad idea. The quickest way to lose at trial is by trying to do it on the cheap. Outside consultants need to be used in every aspect, because they are specialists in their particular field and are going to do a better job. Just because an experienced trial lawyer is good at picking a jury does not mean that they know how to put together exhibits.
As an illustration of how critical this is, I will explain one of my past experiences handling a case in which a child was hit by a car and seriously injured. The mother of the child had a disease that resulted in numerous, hideous growths all over her face. It was hard to look at her without feeling repulsed. When trial appeared inevitable, I paid for plastic surgery to have the growths removed, and as a result, she became a compelling and sympathetic witness when testifying to what had happened to her five-year-old son. With the facial deformities gone, the jury would focus on her love for her son and her riveting description of all that he lost. No longer were we worried that the jury would be fixated on what could have caused her to look that way. That case ultimately settled after the mother’s deposition. In private, the defense counsel mentioned the change in the mother’s appearance was one of the factors that increased their valuation of the case.
It is important to remember that the other side pays attention to every detail of every action, whether those actions are effective or ineffective. I instruct my clients to always tell the truth, no matter how bad it may hurt the case. While some facts may hurt the value of the case, lying is fatal. It should be assumed that your opponent is a diabolical genius who knows everything about the case. Your credibility is everything. The real litigators understand this, and the pretenders will think they are smart enough to lie about the bad facts. Every time I catch the defense lying, it is a good day for the plaintiff.
In one case during jury selection, I promised the jury I would tell the truth throughout the trial. I invited them to punish us severely if any of our witnesses were to lie, and stated, “If my side lies, give us nothing because that is what liars deserve.” I then said, “Of course, fairness would dictate that if the other side lies, well, you know what to do.” I already knew the defense was going to lie and I could prove it. I had demanded $50,000 on that case, and the offer from the defense was $15,000. I caught the defendant and the defense attorney both lying during the course of the trial. The jury award was $175,000. Afterwards, several jurors explained that the contrast between the two sides made them want to award even more than $175,000, but that some jurors were too stingy to really give the defense what they deserved for being dishonest.
TIPS FOR A FAVORABLE OUTCOME
I have a number of suggestions for someone who is scheduling a mediation, the first of which is to avoid scheduling it for a Monday or Friday. On Monday, they will have the Monday blues and they won’t really be into what is going on, and around three to five o’clock on a Friday, everyone will be eager to start their weekend plans. It is important that everyone is focused in order to have the best outcome. From personal experience, I believe that midweek is the best time, because people will be more focused and engaged. I always try to schedule mediations between Tuesday and Thursday.
Mediation is a cooperative process. If each side is at war with the other, then each side will be more concerned about winning than about settling the case. When preparing for mediation, I always create a mediation brochure for the mediator, although the other side seldom does. I have had a number of mediators tell me that plaintiffs seldom do either. I do not understand this lack of preparation, given that 96 percent of cases will settle at mediation. Putting together a mediation brochure is just one more piece of ammunition going into that process, because it will equip the mediator with a 50-page source of information. This will supply them with ammunition for your side and it exudes authority. Remember, a mediator just wants a settlement.
When putting together a mediation brochure, I try to keep it as short as possible. If I hand the mediator a 500 page mediation brochure because I included every single document in the case, then I will have guaranteed one thing: that they will not even read it. They might use it as a door stop, but they will not read it and whatever authority is in there will be lost. The brochure needs to be effective rather than thorough, which means highlighting the strongest points that need to be made. For example, there would only need to be one page of medical records explaining that a man’s leg was amputated.
It’s also important to open with a strong presentation. Every time a mediator has decided to skip the joint session or presentation, the mediation has failed. If the other side does not want to put on a presentation, then that indicates that they are not serious. Since the audience in mediation is comprised of the defense counsel and very sophisticated adjusters, it is necessary to spare them the soaring rhetoric, because it will only raise their competitive edge and turn the mediation into a battlefield. Do not use ultimatums, because they do not work. If the other side is careless or inexperienced enough to give an ultimatum, it should be called out every single time. If that causes the mediation to end unsuccessfully, then so be it. If they were serious, then they would not have given an ultimatum to begin with.
When dealing with large cases, a settlement video with a voiceover and an emotionally moving soundtrack can be used, but it should only be shown once, and a copy should not be given to the other side. Using modern technology you can create a compelling video for less than $10,000. PowerPoint presentations are crucial and should incorporate some special effects; people want to be entertained, regardless of how sophisticated they are. If they become bored, then their minds will start to wander and they will stop listening. If they are entertained, they will stay engaged and hear everything that needs to be heard.
For example, I once put on an exhibit for a case that involved a man who had died of mechanical asphyxiation after being pinned underneath a heavy-duty truck. Unable to expand his lungs due to the way in which he was trapped by the truck, he literally drowned in the air. The exhibit was an animation that depicted a human frame enclosing the circulatory system, and included the sound of a beating heart. There was a time clock in the upper left corner that was running down to zero while the blood was turning from red to blue, and a classic heart monitor graph on the top right that showed each heartbeat. As the audible sound of the heartbeat began to slow and the blood was turning blue, the clock eventually hit zero, the heart monitor flatlined, and the alarm sounded.
After that mediation, the corporate representative told me that it was the single best exhibit he had ever seen in 30 years of doing defense work, and he congratulated me on a job well done. The family went into this process with high anxiety and although I was able to get the case settled for a large sum of money, I did not have to offend, attack the character of, or make an enemy out of the other side. Instead, I was able to show the strength of my case and let the value of it rest on what had transpired, rather than on making the other side feel bad or angry.
I also used an exhibit in a case that involved a teacher who had been fired because their immigration lawyers committed malpractice, resulting in the loss of the B1 visa. This teacher’s eighth grade class threw a going away party and presented 40 handwritten cards telling him what a difference he had made in their young lives. During mediation, I placed all 40 cards in a large envelope and slit open the end of it. During my argument as to what had been lost as a result of their malpractice, I tipped the envelope and all 40 handmade cards spread across the table. I knew in advance which letters I wanted to read based on their color, but to the other side it appeared as though I was choosing them at random. Each card was heartfelt, and I became tight in the throat as I struggled to read the words that these children had written. After having read four of these letters, I looked up to see both immigration lawyers and the adjuster bawling like children. In fact, the old grizzled mediator had even teared up. When everyone in the room is crying, the lawyer has done his or her job.
When I handle cases that involve particularly gruesome injuries, I will have a professional photographer take pictures of the injuries and I will incorporate those images into my presentation. While showing gruesome photos in mediation, I always say to the other side, “This is not an opinion, this is not a lawyer’s clever argument; this is my client’s day-to-day reality given to them by your client’s refusal to implement very rudimentary safety policies. Your client’s refusal to care has given my client a life sentence of pain and despair.” When making arguments such as this, I am always careful to keep my tone in check and avoid showing anger. These kinds of lines need to be delivered in a very matter-of-fact way because they are the facts of the case. Additionally, it is advised that the plaintiffs leave the room before the gruesome photos and autopsy report findings are reviewed in detail. It is just not necessary and it is inhumane to put a plaintiff’s family through those details. More importantly, by having them leave the room, everyone will acknowledge—including the defense—that there are just some things the family should not be put through.
Another crucial tip is to videotape every single deposition, because an employee or an angry defendant could say something outrageous, cruel, or stupid at any time, and that needs to be caught on tape. My partner once handled a case that involved a fatal collision that occurred at six-thirty in the morning. He argued that it was dark and that the defendant had no taillights, while the other side argued that it was light out when the accident occurred. Since he had video footage of the scene of the accident at six-thirty in the morning, he was able to prove that it was in fact dark. He even had security camera footage that showed the truck leaving when it was dark.
When the truck driver was being deposed a year after the accident, he said that it was light out when the accident occurred. My partner, Keith, then questioned him about how light it was. His response was, “As light as it is outside right now.” This deposition was being taken at two o’clock in the afternoon in broad daylight. My partner then very effectively asked the videographer to turn the camera that was videotaping the deposition to the outdoors in order to show that the deposition was being taken while it was light outside. He then asked the driver, “Are you telling the jury that it was this bright?” The response was “yes.” This was such an outrageous and ridiculous lie that the other side could not figure out a way around it. If a jury were to hear this evidence, they would realize that the other side was willing to say anything simply to avoid having to pay. This case ultimately settled for a huge sum at mediation.
It is important to keep in mind that when a deposition is being recorded, everything that is said in that room will also be recorded. You are on trial as well. This means that it is necessary to remain professional, avoid showing anger, and withhold cheap shots. You do not want to appear in the other side’s settlement video as the jerk lawyer a jury will hate.
With regard to the setup for mediation, the initial demand needs to be high, because it can always be lowered. In addition, if mediation is going to occur, then pre-mediation negotiations should not be held; doing so would create an artificial ceiling before mediation even begins. I prefer to enter mediation with an offer of zero from the defense, because that would allow me to present my side with bad facts and horrendous injuries, and to conclude by saying, “In the face of all this evidence and these crippling injuries, the defendants have offered nothing.” I would say it very softly so the tone would in no way be offensive or provocative.
The mediator is charged with being neutral, but because mediators are human, that is impossible. Humans are emotional creatures that cannot help but be moved one way or another by their internal emotional state. While they will try to conceal this reality from the litigants, it cannot be assumed for one second that they are not reacting emotionally on some level. The mediator is also not anyone’s friend. Their goal is simply to settle. Many very skilled defense attorneys will often try to kill with kindness, so I always warn my clients by saying, “Never forget that when the other side smiles at you, there are real teeth in that smile.”
It is my sincere hope that I have taken some of the mystery out of mediation for the uninitiated. To those who have been seriously injured or lost a loved one, do not lose hope. Regardless of what you hear on the Internet, I assure you the system is rational and usually gets it right. Not always, of course, but most of the time. Stay strong, everyone, and I wish you the best of luck.