John D. Winer, Esq.
San Francisco, California
This article will attempt to set out some simple theories of how to increase the value of virtually any case. The theory which will be put forth is basically that many plaintiff attorneys do a barely adequate job working up cases for settlement and trial. An attorney who does the right things to work up cases and separates himself/herself from the pack of attorneys representing plaintiffs, will be able to eventually demonstrate to the defense attorney, insurance adjuster and defendant that there is something special about the plaintiff, the attorney or the case which makes it worth more for settlement purposes than the ordinary case.
SET YOURSELF, YOUR CLIENT, THE DEFENDANT AND THE CASE APART FROM THE PACK.
Insurance companies and frequently-sued corporate defendants have a need to standardize settlement values. They are far more comfortable with a system like Worker's Comp, where injuries can be rated, than they are with an unpredictable tort system in which the value of cases, even with similar injuries, can vary widely depending upon the ability of the plaintiff attorney, the likeability of the plaintiff and the defendant and the nature of the accident/incident.
The defendants will want to set the value of the case assuming the lowest common denominator, i.e., bad attorney, bad plaintiff, good defendant and garden variety accident. At least one large insurance company allows a computer to evaluate the case and set values.
You must convince the people with the key to the safe, i.e., the adjuster and defense attorney, that there are unique aspects to you, your client and your case which make the settlement value of the case extraordinary and not ordinary.
Setting the Plaintiff Apart from the Pack.
Juries give more money to people that they like, relate to and believe. If you have a great plaintiff, you are doing him/her a disservice if you do not settle that person's case for more money than you would settle the case of an unattractive plaintiff.
In cases in which you have an appealing plaintiff, you should make this fact known in your settlement demand letter and urge the insurance adjuster to meet the plaintiff. If you are in litigation, you should encourage the defense attorney to take the plaintiff's deposition as early in the case as possible.
How to Set Your Case Apart from the Pack.
Increase the defendant's risk.
We need to start this discussion with the assumption which is virtually always true: that is, insurance companies and defense attorneys need to control risk. A defense attorney, in particular, does not want to underevaluate a case and then get slammed at trial with a verdict far in excess of his/her evaluation. Thus, through litigation and settlement negotiations, you need to convince the defense attorney that your case is a high risk case for the defendant and that the defense attorney needs to evaluate it higher than he/she might evaluate the ordinary case.
A similar approach should be taken with insurance adjusters who will have a lot of explaining to do if he/she grossly underevaluates the case. From the very beginning of the case, even before litigation, you must do whatever you can (unless you are trying to set up the insurance company for a policy limit/excess verdict demand) to set the value of the case as high as possible. I once asked an experienced mediator "What is the one thing that a plaintiff could do to make a case easier to settle for a high value at mediation?" He told me, "Do what you can to make sure that the insurance company sets the reserves high at the very beginning of the case. It is a nightmare to convince the insurance company at a mediation to go beyond the reserves, no matter what has happened since the insurance carrier's initial evaluation of the case."
Here are a few things that you can do to set your case apart:
Do everything humanly possible to objectify the plaintiff's injury. In back/neck injury cases, try to make sure that the treating doctors order MRIs, CAT scans and other diagnostic tests. In closed head injury cases, again, attempt to have MRIs and CAT scans ordered and, if the case warrants it, order a PET scan yourself. Also, have an expert perform neuropsychological testing.
In a psychological injury case, have a psychologist perform psychological testing including MMPI and MCMI which will objectify plaintiff's injuries. In a car accident case, do what you can to prove that it was a high speed impact. The value of any automobile case depends a lot more on the extent of the impact than the plaintiff's injury. If it appears that it was a low speed impact, consider hiring an expert to talk about the extent of the forces involved even in cases with low value property damage.
In any injury case, whether orthopedic, neurological or psychological, do what you can to establish that the plaintiff will probably have problems and require treatment in the future. Defense attorneys and insurance adjusters are very comfortable in a situation in which the plaintiff has fully recovered by the time of trial. The plaintiff's recovery allows them to control their risk. If your treating doctor or expert can credibly testify that the plaintiff will continue to have problems and treatment in the future, it makes it much more difficult for the defense to control its risks and should increase the value of the case beyond the simple cost estimate for future treatment. Remember when eliciting testimony regarding future injuries and treatment that treating doctors want to see themselves as heros who have already cured the plaintiff's injury. Thus, they tend to overstate the degree of plaintiff's recovery and understate the need for future treatment. Also, in cases in which the plaintiff has an unusual injury, the treating doctor may not even know what the future course of the recovery and treatment will be. In those cases you should consider retaining an expert to estimate the plaintiff's future needs.
Further, be careful when eliciting future treatment estimates from psychotherapists. Often a psychotherapist will opine at deposition or in a report that plaintiff needs, for instance, two years of therapy at the rate of one time per week. If you question the therapist more closely, what they are really saying is that the plaintiff needs at least two years of therapy, one time a week, and that at the end of two years, they will re-evaluate the plaintiff. The original testimony would obviously do a disservice to your client who cannot come back to the jury or insurance adjuster in two years and ask for more money. Thus, before the psychotherapist goes public with his or her opinions, make sure that the concept of the plaintiff's one day in court is clearly explained. A higher estimate of future treatment needs will greatly increase the defendant's risk and, thus, the value of the case for settlement purposes.
Establishing that the defendant and his/her conduct warrants a higher settlement.
If the defendant makes a bad witness, it should increase the verdict value and thus the settlement value of your case. Since the defendant is not asking for money, his or her character is not as important as plaintiff's, but it still counts. If a jury gets angry at a defendant, there will likely be a spiked verdict. Therefore, to increase the settlement value of the case, you should attempt to establish conduct on the behalf of the defendant which will anger a jury.
Focus the case away from the plaintiff's injury and onto the defendant's misconduct.
There are certain cases such as sexual harassment, toxic torts and discrimination cases, in which practically the entire value of the case arises from the defendant's misconduct rather than the plaintiff's injury. That is one of the reasons why these type of cases are sometimes difficult to settle, i.e., the defendant only wants to settle the case for a value consistent with the plaintiff's injury while the plaintiff's attorney recognizes the fact that emotional distress arising out of something like sexual harassment has far more value than the identical degree of emotional distress arising out of a garden variety car accident in which the defendant was simply negligent. The best way to demonstrate that the value of these type of cases to a defense attorney is to provide him/her with relevant jury verdicts or encourage the defense attorney to perform a focus group/mock trial so that the defense attorney can get some idea of how potential jurors will convert their anger at the defendant into a significant monetary award for the plaintiff. Also, as will be mentioned in section II(C)(1) of this article, these are the cases, particularly if you have a good plaintiff, that you don't want to settle and you do want to try.
If the defendant was drunk at the time of the accident, the plaintiff should never settle his/her case for a similar dollar amount as the plaintiff would settle the case if the defendant was not drunk. A drunk defendant not only adds a punitive damage element to the case, it also will undoubtedly spike the value of the compensatory damage case. For a discussion of how to ensure that evidence of the defendant's drinking will come into the compensatory damage phase of the case, even if the defendant admits negligence, see section II(B)(5).
Subtle evidence to look for that might anger jurors and increase the settlement value of the case.
It is not simply the intentional or reckless misconduct of the defendant which will anger a jury and spike the value of a case. If during the defendant's deposition you can catch him/her in a significant lie, your case should become more valuable. This same theory would apply in a case in which the defendant lied to the police officer after an accident. For example, if a defendant says that he was traveling at 40 miles per hour and you can establish through credible witness testimony and accident reconstruction testimony that he was traveling 70 miles per hour, this should not only help plaintiff's liability case but also increase the value of the damage case. The same thing would be true in a premises liability case in which the owner denied knowledge of a defect to the police and you can later prove that the defendant clearly had knowledge of the defect at the time of the accident.
Another thing to look for in an automobile accident case is a situation in which the defendant acted like a jerk after the accident. Juries may get incensed at a defendant who did not take responsibility for an accident at the scene.
The same principle applies to medical malpractice cases. Plaintiffs receive much better verdicts against arrogant doctors than they do against kind, friendly doctors. Medical malpractice defense attorneys clearly recognize this concept and if you can establish the fact that the defendant doctor was arrogant and unkind in his treatment of the plaintiff, it will increase the settlement value of the case. For example, lets say that one of the allegations of negligence is the fact that the doctor waited six hours longer than he should have to respond to a plaintiff's emergency call and serious complications resulted from the delay. Technically if the six-hour delay was inappropriate and too long, plaintiff should win the case. But which case has more value, one in which the doctor delayed responding to the telephone call because he was attending a funeral of a relative or a situation in which he did not respond because he was playing golf and decided to not turn on his beeper?
Increasing the settlement value of the case by insuring that defendant's bad conduct will come into evidence at trial.
A problem that often arises in cases in which the defendant's bad conduct is obvious to even the defense attorney is that the defense will admit negligence and claim that the specifics of the defendant's misconduct are irrelevant and inadmissible. There are several ways to deal with this. First of all, plaintiff can plead intentional infliction of emotional distress. This puts the defendant's state of mind at issue and it is the rare case in which a defendant will admit to intentional misconduct. However, this method is not foolproof because, one, some judges will rule that once defendant has admitted to liability, even if it is only an admission of negligence, there is no reason to hear evidence of intentional misconduct in the compensatory damage phase of the trial. Second, in cases in which the defendant is not a professional or a corporation, there is some chance that he/she will admit to intentional infliction of emotional distress simply to keep evidence of his/her misconduct away from a jury. Third, you may not want to be pursuing claims of intentional misconduct in cases in which the defendant does not have significant assets and your only source of recovery will be an insurance policy.
If you plead punitive damages and if your client survives demurrer, summary judgment and/or a directed verdict, then you will eventually be able to get evidence of the defendant's misconduct in front of a jury. However, the problem with this approach is that some judges will agree to bifurcate the trial and not allow in any evidence of punitive misconduct during the compensatory damage phase of the trial. Thus, you will lose your opportunity to obtain a spiked compensatory damage verdict which is particularly important in cases in which there is significant insurance coverage and the defendant does not have significant assets. Remember, an insurance company is not allowed, under California law, to indemnify for punitive damage claims.
Also, you can claim psychological injuries. We have found that the surest way to ensure that evidence of the defendant's misconduct will come in at the compensatory phase of a trial is to claim a psychological injury resulting, at least in part, from the defendant's bad conduct. If your psychological expert testifies that, for instance, the fact that the defendant lied contributed to the psychological injury or the fact that the defendant screamed at the plaintiff after the accident contributed to the psychological injury, then evidence of the defendant's misconduct should be admitted under the issue of causation. A defendant will never admit causation in a psychological injury case; therefore, this method should work.
How to Set Yourself Apart from the Pack.
Try Your Good Cases.
There is nothing more important that you can do to increase the settlement value of all your cases than to receive good verdicts in the cases that you do try. Obtaining good verdicts depends, to some extent, on an attorney's trial skill, which is not the subject of this article, but probably to a larger extent it depends upon on how good the case is that he/she is trying. Unfortunately, we almost always end up settling our good cases and only trying cases in which we receive little or no offer of settlement. Bad cases tend to result in bad verdicts; therefore, we are doing little or nothing to increase the value of all of the present and future cases in our offices.
The way to reverse this phenomena is to recognize when you have a great case, i.e., a case in which there is a good plaintiff, bad misconduct by the defendant and an objectifiable injury, and keep the settlement demand high in the case, and don't settle it. Obviously, you need the permission of the plaintiff to take this approach; however, it almost always will pay off. Once you have tried a few cases in which you have received verdicts which have far exceeded the defendant's offers, settlement value of all of your other cases should increase because you have raised the risk for the defense attorney, insurance company and defendants.
Write a Thoughtful, Thorough Settlement Demand Letter.
In cases in which you are going to write a demand letter, make it a very good one. A demand letter will very often be your first introduction to a particular insurance adjuster and it is important to make a good first impression. Many plaintiff attorneys write incredibly poor demand letters. Many have pre-fabricated letters in which they simply change the name of the plaintiff and the amount of special damages and monetary demand depending on the case. By individualizing your demand letters and paying attention to the particular factors in your case, you will begin to set yourself apart from the pack. Also, you will probably put some fear into an insurance adjuster who has far more files than you do and is not in a position to engage you on a fact-by-fact, issue-by-issue analysis of the case. Sometimes this will cause the insurance adjuster to shut down and not make a reasonable offer in the case, but other times it may cause him/her to set a higher value on your case. If you can demonstrate a thorough knowledge on the medical or psychological aspects of your client's injuries, it should set you and your case apart from the adjuster's other files in which all of the injuries, particularly soft tissue injuries, look the same.
Perform Extensive Discovery.
Although there are some cases that do not require extensive discovery, most insurance companies and defense attorneys respect plaintiff attorneys who do not simply wait for a settlement offer to happen and go out there in discovery and attempt to prove their case. This becomes less necessary once you have a proven trial track record; however, until then it is important to establish your credibility and aggressiveness through aggressive and thoughtful discovery.
Write a Detailed Settlement Conference Statement and/or Mediation Brief.
Most plaintiff attorneys spend little or no time putting together a settlement conference statement or mediation brief. A long, thorough, well thought out mediation brief will not only set you apart from other plaintiff attorneys and increase the value of your case, but also increase the chances that the insurance carrier or defendant will have an opportunity to properly evaluate the case before getting to the mediation or settlement conference. This is critical. In almost any significant case, the defendant or insurance company will place a value on the case before arriving at the settlement conference or mediation. You can be brilliant at the mediation/settlement conference, and it certainly helps to be brilliant, but you are very unlikely to settle the case for an amount higher than the settlement authority that the insurance adjuster had at the beginning of the conference. Obviously there are cases in which the insurance adjuster or defendant can telephone home office for more money, or there are cases in which there can be a second mediation/settlement conference, but a thorough brief, received by the defendant or insurance company in sufficient time before the conference will do more to increase the settlement value of your case than anything you can say at the settlement conference itself.
Give Away What You Need to Give Away at the Mediation/Settlement Conference and in Your Brief. Most defense attorneys and insurance adjusters will not take your analysis of your case seriously if you do not recognize the defendant's positions and the potential weaknesses in your case. If, in your brief or your presentation at the mediation/settlement conference, you concede the weaknesses of your case and the strengths of the defense case, but then provide an explanation for why your evaluation of the case is correct you then increase your credibility and decrease the effectiveness of the defense argument. This should increase the settlement value of the case.
Plaintiff attorneys can increase the settlement value of almost any case by following the simple steps of setting the plaintiff, the case and himself/herself apart from the pack. We all spend too much time focusing on cases which we thought were good that become dogs during the course of the litigation. Instead, we should attempt to take the cases which we assumed were ordinary and attempt to turn them into gems.
This article was authored by John D. Winer. Winer, McKenna & Burritt, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.
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