A new client comes into your office to report that he/she was recently in an automobile accident. After interviewing the client, reviewing the traffic collision report and possibly the property damage estimate, you tell the client that you are willing to represent him since you have concluded that this is not a "list"/"mist" case [low impact, soft tissue/minor impact, soft tissue]. Once you have been retained, you can immediately begin preparing the case for mediation while you prepare it for litigation/settlement.

Initial Representation Letter to the Insurance Company

Immediately send the responsible driver's insurance company a representation letter. The insurance company will assign the claim to one of its claims experts who will open a file. The insurance company will also set aside a sum certain as a reserve to pay the claim.

Follow-Up Information

After you send the representation letter, every time you obtain any special damage information; e.g., medical record, medical bill, wage loss information, etc., send it to the assigned insurance representative. Why? Because every time the representative gets one of your form letters with a bill, etc., he/she will have to open your client's file, insert and record the information, and thereby refresh his/her memory about your client's claim. By the time your client has finished treating and has stopped incurring special damages, the representative will be much more familiar with your client's claim than if you wait until after your client has finished treating. This means that the representative will be better able to evaluate the claim when it is reviewed by the insurance company's committee; chances are that the representative will receive higher settlement authority; and, you have made a positive impression on the representative as a lawyer who takes the time to provide the representative with all of the information that is needed for the representative to fully evaluate the claim.

Settlement Demand Letter Before Litigation

If your client's case is ripe for settlement before you file the complaint, your settlement demand letter is a perfect vehicle in which to suggest mediation. However, if your settlement demand is not within the "realm of reasonableness", the representative may feel that mediation would not then be cost beneficial and you will lose an opportunity to settle the case without litigation. The "realm of reasonableness' is that negotiation nether land where the plaintiff is not offended by the defense offer and the defense is not rolling its "Bette Davis" eyes at the demand

Make Your Client and Case Unique

It is important that insurance companies evaluate cases based on risk. Insurance companies want to control risk. They do not want to undervalue a case. Therefore, in addition to sending the adjuster each piece of special damage documentation when you receive it, make sure that you explain your client’s injuries objectively. Thus, if the injuries warrant diagnostic tests; e.g., MRI, CT, PET scan, etc, encourage your client to discuss the efficacy of these tests [warning--if the nature and extent of your client's injuries do not warrant such tests, you will be hard-pressed to convince an insurance representative that such tests are reasonable and necessary]. If the treating health care provider believes that your client will require future treatment, ask the health care provider to document this in the progress notes or in a report [warning - the credibility of such a prognosis depends in large part on who the reporting health care provider is].

In an auto case, do what you can to prove that it was a high-speed collision since insurance companies base their evaluations of such cases as much on the severity of the impact as on the injuries. Be forewarned that insurance companies do not put much value on injuries which arise from low speed impacts. You must therefore provide any information that explains why your client was injured in a low speed accident.

The settlement letter provides you with an opportunity to set your case apart from the pack. If you have an appealing plaintiff, let the adjuster know. Even invite the adjuster to meet the plaintiff.

Make Special Damage Information Readily Accessible

Insurance representatives are, by nature, suspicious. It is therefore important that you provide the claims representative with all of your client's relevant medical information, not just bits and pieces. Additionally, you may want to encourage your client to allow "discovery" of irrelevant medical information. For example, if the defense lawyer subpenas "all of plaintiff's medical records" and you know from your own review of these records that many of them are not discoverable, ask your client for permission to allow the defense lawyer to see this information. If you get permission, write the defense lawyer and suggest that the parties agree that the defense can review all of the records, but that plaintiff is not waiving plaintiff's right to object to the discoverability and/or admissibility of these records. Further suggest that if the defense disagrees about the admissibility of any of these records, they will be submitted to the court for an in camera review. This procedure will allow the defense to see all of the records while preserving the plaintiff's right to privacy.

Emphasize the Character of the Plaintiff v. the Defendant

Let the insurance representative know that your client will make an excellent witness. Invite the insurance representative to meet your client.

If the defendant will be a "bad" witness, this will increase the verdict value of your client's claim. Thus, to increase settlement value, emphasize defendant's deficiencies. This is especially effective in discrimination, excessive force, sexual harassment drunk driving, and toxic tort cases.

The Mediation Brief

Unfortunately, most plaintiffs’ lawyers do not take the time to prepare a well-reasoned and organized mediation brief. I would encourage plaintiff's lawyers to take the time since, by preparing the brief, you are preparing yourself for the mediation. Additionally, although mediation briefs can be confidential, you should consider sending copies of the brief to the insurance representative and defense lawyer far enough in advance of the mediation that they will have the opportunity to read the brief. The brief should be based on all of the medical and special damage information which information needs to be given to the defendant's representatives in advance of the mediation so that they can evaluate your client's medical condition and other special damage claims. Additionally, if the size of the claim warrants it, plaintiff lawyers should consider preparing documentary and/or demonstrative evidence in binders, using overhead projectors, etc. Insurance representatives will be impressed with well-prepared presentations and such presentations can add value to the claim.

Pre-Mediation Preparation

Meet with your client before the mediation. Explain the mediation process. If the claim's representative has not met your client, explain the importance of a good first impression. In that regard, do what it takes to make your client presentable. Encourage your client to leave his/her body piercings at home. Cover up tattoos with a coat or band-aids. Explain to your client that he/she will be asked to talk about the accident, injuries, etc. at the mediation. Have your client "rehearse" before the mediation. If you do, there is a chance that you will increase the case's value. Finally, prepare your client for mediation as if you were preparing him/her for a deposition or trial. I have mediated at least two injury cases in which the claims representative made the proverbial phone call for more $ after meeting and listening to the plaintiff.

You should prepare for mediation as if you were preparing for trial. Be prepared to make a closing argument during the joint mediation session. To do this, review all of the liability and special damage information so that you can talk about your client's injuries without fumbling through your files. Insurance representatives will be impressed with a well-prepared plaintiff's lawyer who is obviously ready to try the case if it does not settle. This impression may equate to a higher than normal settlement offer.

The Mediation

Joint Session

You should explain your client's spin of the case as objectively as possible. Concede any weaknesses in plaintiff's case and strengths in the defendant's case. Such candor will enhance your credibility and increase the case's value. Allow plaintiff to talk about his/her injuries and present condition. If plaintiff has been properly prepared, plaintiff will not "overstate" the case but will be afforded the opportunity to have his/her "day in court". A plaintiff who has had this opportunity feels better about the process, is more receptive to hearing defendant's spin of the case and is more willing to "hear" the mediator’s "reality check" speech during caucus.

Caucus

If the mediator has experience in personal injury law, you may want to meet privately with the mediator to discuss the efficacy of having the mediator do a reality check for the plaintiff. Plaintiff should fully understand the risk/reward balance between settlement and trial. In that regard, candidly discuss how much it will cost the plaintiff to proceed through trial. Also consider the taxability of any part of a verdict; e.g., lost wages, versus the nontaxability of a settlement.

Explain to plaintiff that the settlement value of the case has to be discounted because of potential collection delays after trial which delays include post-trial motions, appeal, bankruptcy, etc. A jury verdict is frequently just one step in the negotiation process.

Factor into valuation the chances of winning v. losing. Remember the legal adage that even the best case has a 10% chance of being lost.

Discuss liability, damages, and venue in evaluating a case. Even the best liability and damages case may be in trouble if it is filed in a conservative venue.

Offer/Demand

Finally, if there have not been any offers or demands, do not hesitate to fire the first salvo. However, make sure that plaintiff's initial demand is not such that the insurance representative is insulted. An experienced mediator may be a good sounding board when determining what to demand. Additionally, if you have confidence in the mediator, you may want to let him/her know plaintiff's "bottom line" and let him then work to reach or cross over that line.

Closing the Deal

If the parties are close but are facing an impasse, the parties may ask for a mediator's recommendation. Some mediators ask each party to write down confidential settlement sums at or higher than the last offer and at or lower than the last demand with the understanding that if the sums are within x dollars of each other, the case will settle for the median of the two sums.

If the lawyer believes the settlement if fair, but the plaintiff wants more, the lawyer may want to consider reducing the fee so that the plaintiff nets what he would have netted if the case settled for the higher figure. For example, if the contingency fee is 50% and plaintiff wants to settle the case for $60,000.00, which would net the plaintiff $30,000.00 less costs, but the defendant refuses to pay a penny more than $50,000.00, the lawyer may want to consider reducing the fee so that plaintiff will net the $30,000.00.

The Agreement

Never, never, never leave a mediation in which an agreement has been reached without a written agreement. Ask the mediator to confirm that the insurance representative will come to the mediation with the company's release form. Alternatively, put something in writing that plaintiff signs with the understanding that plaintiff cannot thereafter change his/her mind.

Conclusion

Insurance companies evaluate personal injury claims based on the nature of the injury as it relates to its insured's responsibility, the causal connection between the accident and the injury, scope of the damages, the reasonableness of the medical care, the residual complaints, if any, and the reputation of the plaintiff's lawyer. It is therefore imperative that plaintiff's lawyers investigate the mechanics of the accident as they relate to plaintiff's injuries; carefully follow plaintiff's course of medical treatment; never hesitate to let plaintiff know that at least from a medical/legal standpoint, plaintiff's medical care may be considered inappropriate or excessive; constantly provide updated medical and other damage information to the insurance company; and, prepare every case as if the case was going to be tried. All of these efforts will set the stage for a successful mediation.