A plaintiff attorney’s “Top Ten List” of strategies for settling a case

From a trial lawyer who settles a lot of cases, here's the framework for getting your matter settled

2015 September

Settling a case is not only about knowing all the facts and being prepared and having a mediation brief.  It is about having a strategy. Here are some tips on the strategies used regularly by the plaintiffs’ attorneys at my firm, AlderLaw. When you follow these strategies, it will make mediation more productive and less stressful. What is more, you will increase your case turnover rate and benefit your bottom line. I have settled more cases than anyone I know, and I do so by consistently using these strategies and techniques.

Be proactive: timing is everything

Early mediation has not been that useful because when mediation is too early, the defense has not had the time to be sufficiently educated as to the significant elements of your case regarding liability and damages. With little or insufficient information, their client (i.e., the insurance company) will not authorize a settlement amount for what you believe the case is worth. For this reason I typically do not participate in pre-litigation mediations, nor do I participate in mediations for filed cases when the defense has not had the opportunity to obtain all the information it needs to garner top authority from its client (see section (3.) below).

However, it is important to raise the issue early with the defense that your client is open to the idea of mediation, with enough time to select the proper mediator (see section (2.) below), and allowing enough time for the defense to get up to speed and present its complete report to the insurance carrier. If you raise the issue early and are proactive, you and the defense attorney can come up with a plan to stage the case for mediation, select a mediator, set a date (mediations with popular mediators often need to be scheduled months in advance), and develop a discovery plan with a timetable in mind. If you are proactive and are ready for the mediation on the date for which it has been set, which has been pre-set for months, then you will ultimately save money and perhaps motion practice. You will also save your time and clients’ money by not having to prepare for a trial, or having to schedule mediation at the last minute. This is all money you do not have to spend if you are proactive in the first place.

The proper mediator is critical

Each case has different facts, different legal issues, and different monetary values. Certain mediators are better for certain kinds of cases than others. Mediators have different styles and skill sets. A particular mediator may have history of prior dealings with the particular defense attorney/firm on your case or the particular insurance company or adjuster. These prior dealings may very well mean that particular mediator has developed trust and respect with the defense. If that is the case, you should seriously consider using that mediator over a different one, even though you have used others in the past.

Additionally, keep in mind that certain clients have special needs in order to facilitate a settlement. For example, certain mediators are more warm and fuzzy with injured plaintiffs than others. If you know your injured client needs a little extra handholding, do not use a mediator who may be considered too brusque by the client. Select someone with stronger interpersonal skills. If your client respects authority, consider using a retired judge. If there are multiple parties, or hotly contested issues, consider a more aggressive mediator with good management skills. In each instance, the mediator should be a good fit for the case. Know who your defense attorney is; know the reputation of the insurance carrier; and, know the facts and law applying to your case.

Do not agree to just any mediator proposed by the defense. I have a handful of mediators whom I use regularly since they have been consistently successful in settling my cases and they know my style, but I do remain open to trying others when I hear positive things about them. In all events, you should control which mediator is selected. If possible, you should propose the first round of suggested names to the defense, asking the defense to choose one or two of your proposed mediators.

This list always consists of two or three names from my “short list,” tailored to the client/issues/facts/law of the particular case. Once they agree to at least one, you should contact the mediator’s office yourself to obtain dates. In this regard, never wait for the defense to do it; you save time and keep control over the process. Many times I ask the defense to approve more than one mediator, since the more popular mediators have tight availability. Often our collective calendars are the ultimate deciding factor of the mediator. However, remember each of the proposed mediators are ones who you have selected in the first place, so at that point it really does not matter.

If you are really set on one particular mediator and there is no availability during the time frame you need, ask to be put on the wait list and follow-up often with their scheduling person. Cancellations happen frequently. If, for some reason, the defense does not have client approval over any of your suggestions, ask them to provide you with a few suggestions of their own. Do not allow them to dictate who will be the mediator by offering just one. This way you have the opportunity to review and research their proposed mediators, and ultimately have the final approval over the selection. You are much more likely to settle your case for maximum value if you use the proper mediator tailored for your particular case.

Information is king: Give the defense everything

Make sure the defense has all the information they need at least two weeks before mediation – the earlier, the better. This part is critical to successfully settling your case. It is not enough that your file is complete. The defense must have all the information they need to properly assess liability and damages. They need this information so they can speak to their clients/insurance adjusters and obtain the proper authority before the mediation. If they do not have the information they need at least two weeks before the mediation, they will not have the time to educate their carrier, write their report, and get the proper monetary authority to settle your case for full value (or what you believe to be full value).

This means if there is a life-care plan or economist report – give it to them before the expert designation. If there are expert and/or medical reports that you feel might help them with the valuation of the case – give it to them now. Offer a key expert’s deposition before you have to per Code. This will ensure that all party and key witness depositions have been taken. Do not wait; give the defense everything! Do not think that holding back a “smoking gun” will help you at the mediation. The “aha – I got you” moment never works as a surprise attack at mediation. This tactic will not accomplish anything except frustration on the part of the mediator and the defense, resulting in an unsuccessful result.

Anything that will increase the value of your case – e.g., future medical treatment recommendations, loss of earnings analyses, etc. – should be provided to the defense well in advance of the mediation so they can incorporate these values in their memo to their carrier to obtain adequate settlement authority in advance of the mediation.

Settlement authority is often decided by committee and/or regional/group supervisor consent at scheduled, designated meetings before a mediation. Seldom will the defense be able to obtain a significant deviation from the pre-allocated settlement authority at the mediation itself, which is why you want to ensure the defense has all the important information well in advance of the mediation so they can provide this information to their carrier for evaluation.

Maintain good communication with the defense

Have discussions regarding your evaluation of case value with the defense attorney before the mediation. Before the mediation, I always discuss what I think the case is worth from my perspective – so the defense is not blind-sided at the mediation and is prepared for the plaintiff’s demand. Set expectations so the defense attorney knows where you are going before you get to the mediation. Do not demand an unreasonably high number – you are going to lose credibility and you will curtail defense’s willingness to settle for reasonable value – or give inconsistent demands. I usually feel the defense out prior to mediation, suggest where I will be going as far as numbers, and take their temperature to better assess what I might need to do in order to obtain the value I want in the case.

Communicate with the defense attorney before the mediation

I always call the defense attorney or email them and ask them if there is anything else I can give them to help them value my case, resolve any questions they may have, or make the mediation more successful. I want to ensure they have absolutely everything they need to evaluate my case to its fullest value, and if they do not have something, at least I know in advance. This one-on-one communication also allows me to develop more of a personal relationship with the defense, and not an adversarial one. At the end of the day, both sides are looking to resolve their cases and lighten their workload. A good working relationship with the defense attorney furthers this mutual goal.

Professional courtesy goes a long way in establishing long-term good relationships with defense attorneys, who are most certainly going to see you again on a different, future case. Burning your bridges and being unnecessarily adversarial is not advantageous in establishing mutually beneficial professional relationships. Being a strong advocate for your client is not the same as being unnecessarily aggressive. You can have a reputation for being strong, assertive, diligent, and a zealous attorney – but you can simultaneously be known as fair, cooperative, and easy to deal with. You settle more cases by being professional while also being courteous, communicative, and respectful to your opposing counsel at all times.

Manage client expectations and keep them involved in the process

For a mediation to be successful, your client needs to be informed of the date and time of the mediation, told what to wear and what to expect at the mediation. They need to be educated about the mediation process and the event that the mediation session is. I always have a meeting or a conference call before every mediation session to put the client at ease and to educate them in all aspects of mediation. As a part of this meeting, I even inform my client why I selected a particular mediator (and even what a mediator is).

Depending on the client’s personality and the issues involved, I may or may not include them in every step of the negotiation at the mediation. Some clients are in the room during each move, and some clients I leave in a separate room for the most part, checking in periodically and updating them as to negotiation status. How much to include the client in the actual negotiations is personality-driven. I decide this on a case-by-case basis. However, mediations will most certainly fail if you do not inform your client of the risks concerning their case, the weaknesses of their case, and the strengths of the defense’s case.

Further, you must discuss their expectations regarding case value before the mediation even takes place. Before the mediation, the client almost always asks what their case is worth. I typically give them a range, but always discuss the factors that affect their case. I make it clear that their case is not their brother’s case, their friend’s case, or their uncle’s case. Clients often want to lock you down to a specific number – resist this. Although you need to stay positive about their case (otherwise the client feels abandoned and/or not supported), you cannot discuss only the great aspects of their case with them, lest they will have unreasonable expectations about case value. I manage their expectations by selectively discussing the vulnerabilities and shortcomings of their case well before mediation. They are then prepared to consider that their case is not perfect. Moreover, they will have an open mind and accept the mediator’s assessment (and my assessment) of the value of their case at the mediation – and not expect and demand one hundred percent of the potential case value at mediation.

The client needs to understand that mediation is about certainty and reducing risk – and that top mediation value is not what one might expect a top verdict to be at a perfect trial. I communicate with the client, manage their expectations as to case value, and make them feel well informed and part of the mediation process. They understand that they are the ones who will make the ultimate decision as to whether to settle a case at mediation. I inform them of the pros and cons of settling, and always make it clear that they are in control of the process. Settling is their sole and final decision, based on all known factors and the overall risk assessment, which has been made clear to them – starting well before the date of the mediation.

Educate your mediator

In almost all instances you should prepare a short, but detailed, brief with essential facts for your mediator. The brief should contain the facts of the case, a summation of the contentions of both sides, and a description and analysis of liability and damages. It is also helpful to include key dates, procedural posture (e.g., trial date or upcoming MSC, motion to compel, or other dispositive motion date(s), etc.), prior settlement negotiations, 998 offers and/or policy limits demand details, and insurance carrier/limit information. Including all critical and relevant reports is also important. I strive to avoid fluff or over-aggressive advocacy in my briefs – the mediator just ignores it anyway and actually, it can destroy your credibility – as does a poorly written or shoddy brief full of typos.

Overly aggressive demands arbitrarily included in the brief are not useful and are actually harmful. Each of my most successful and highest value cases has settled when the mediator has been provided – by me – with all of the essential reports (e.g., TCR, photos, life-care plan, economist report, vocational-rehabilitation reports, select medical reports, etc.) and other information (portions of deposition testimony, other expert reports, etc.), along with a full analysis of liability and damages. Only provide the key reports, and do not include too much information that the mediator does not need or want.

With the bigger cases, I schedule pre-mediation telephone conferences with the mediator, giving them a brief overview of the facts of the case, discussing my arguments and the likely defense arguments. I will explain what materials I have and/or will be providing them. I ask them what else they might need to help the parties settle the case. I also inform the mediator of my past professional relationship with the defense attorney/firm – i.e., good, bad, no history whatsoever – and any specific nuance affecting the case (e.g., plaintiff personality). I also meet and confer about an opening demand, after they have enough information to help advise and evaluate the merits of my case. A well-prepared mediator means a more successful mediation.

Be prepared and professional at the mediation

Looking and playing the part of a successful attorney means a greater likelihood your case will settle for maximum value. Always be professionally dressed at the mediation. Do not wear casual clothes or arrive un-groomed. The adjuster may see you in the common areas and not take you seriously. Additionally, this sets a bad example for attorneys in general, and is not respectful of the process or your client. Do not make unreasonable demands at the outset of the mediation without hearing the defense arguments or other issues affecting your case. Let the mediator try to do his job before you decide to just “walk out.”

I have realized over the years that there should not be any reason to walk out of the mediation session if you have followed my pointers above – i.e., the defense, mediator, and your client have been well-prepared and have all the information they need – and everyone is ready to mediate. Expectations for both sides should have been set in advance, so there should be no walking out. Sometimes two mediation sessions are necessary to settle the case, not because you have walked out of the first one but because at the first mediation you set the groundwork with everyone. The other side was forced to pay attention to your case; you have convinced the defense to re-evaluate the case from your perspective; and you are giving them additional time to re-assess and get authority for more money.

In my view, this is still a successful mediation. Without the first mediation, there would be no movement at all, and you will have found yourself at the eve of trial, trying a case when you could have settled it earlier on, spending less money on litigation costs. Your mediation will be much more productive when you act and look professionally and perform all the essential pre-mediation preparation work in a timely manner.

Follow-up with the defense and the mediator if case does not settle

Just because the case did not settle at the first round does not mean there is no chance of it settling. Many of my cases do not settle at the mediation session. They settle soon thereafter as a result of a mediator’s proposal or my direct settlement discussions with the adjuster or the defense attorney. As discussed above, sometimes a second mediation session is necessary.

Settlement after a mediation session often requires you pushing the mediator to keep conversations going with the defense. I often follow up with the mediator via email and phone to find out post-mediation status. Some of my largest cases were settled by my mediator, at my relentless urging, over the telephone with the defense, without the need for an actual second mediation session. Sometimes, despite all your best efforts, the defense did not have all requisite information at the first mediation, or perhaps you did a great job at convincing the adjuster that your case is worth more than they initially evaluated. Plans might have been made at the first mediation for case value re-evaluation. If a game plan has been made at the first mediation, do the things you said you were going to do in a prompt manner.

Do not let months go by and not accomplish what you agreed to do at the first mediation. Follow up with the mediator and ask what the defense still needs, or what you can do to speed things up. Ask the mediator to follow up with the defense to ensure the defense is doing what they said they would do after the first mediation. If you wait too long, and do not carry out the game plan set in motion at the first mediation, you will find yourself up against a trial date, in the same exact position you were after the first mediation, with nothing new accomplished. Consistent communication with the defense and the mediator after a non-settling mediation is imperative if you hope to settle a case before trial.

In victory or defeat, be gracious

Whether the case settles or not, you should be gracious to the defense and the adjusters involved after mediation. I often follow up with thank-you notes after a case settles to show appreciation for their time and attention to my case. Remember, a harmonious professional relationship goes a long way in maintaining good will and settling future cases for top dollar.