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(The Hidden Malpractice)
By: David C. Peterson, Peterson, JD, LLM, MDR*


(The Hidden Malpractice)

David C. Peterson*


Parties rely on their lawyers to provide their best efforts in obtaining a beneficial or favorable outcome. Attorneys who miss a significant cause of action or fail to timely file suit have opened themselves to claims for malpractice.

There is one form of inadequacy, however, that can be so subtle as to escape the eye of most. It is the lack of preparation.

What has been revealed to mediators over time and experience is that those attorneys who handle their cases with the expectation or assumption they are going to trial, uniformly do much better in mediation for their clients than attorneys who are not as prepared. To obtain respect from the other side and engender a desire to settle reasonably, attorneys in most cases need to prepare as if they will be in trial.

I have noticed that several of these attorneys will usually have some sample trial exhibits for the mediation. Recently where the trial was several months away, one attorney brought in large posters containing on one side photographs of a plaintiff engaged in certain activities. On the opposite side were quotes from her deposition where she denied she could do these activities. This was more powerful than simply stating the party had not been credible in deposition testimony.

In another mediation where no trial date was set plaintiff’s counsel brought in posters with professional drawings of the step-by-step surgical procedures performed on his client. He also had a container of the hardware that had been used to stabilize the bone fractures she suffered. These were laid out on the table similar to what would occur at trial. Several other equally moving, tangible exhibits were presented. The case settled for over $1,000,000.00 for the client of Martin Pulverman. It was not long afterward that I mediated another case involving a similar injury, surgery and special damages but that case settled for far less. Only written reports were submitted of the injuries of plaintiff, her surgery and aftermath.

Other attorneys have had videos compiled of witnesses being interviewed including doctors, family members, co-workers and others. Robert Patterson has done this successfully. The most elaborate was one presented by Brown Green’s firm which included narration by a newscaster. This was in a case involving the molestation by a coach of a female student athlete. The preparation does not need to be as elaborate or expensive as some of the examples given above, especially in low-damage cases, but it should be more than simply submitting medical reports and billing in most instances. If there are expectations of a large settlement, the reason why should be demonstrated effectively.

Thinking creatively and putting oneself in the shoes of the other side and the jury helps to generate ideas of what can be done to have a more powerful effect on the opposing side than the run-of-the-mill items usually submitted. The words in a brief such as “life threating injuries” or “devastating effect” are worn out; so too, from the defense side, are phrases such as, “the force of impact was minimal.” What the mediator and other side will respond to best is some demonstration backing up familiar words and phrases. Actual X-rays or MR films, and photographs of vehicles, for example, are far better than verbal descriptions. Actual quotes from reports, research, studies, and depositions, where they represent powerful evidence, are helpful as well. Avoid leaving important points to the imagination of the opposing side or mediator.

Attorneys should also be sure to have what they need well prior to the mediation. Unless for tactical reasons something should not be disclosed too early, it is best to exchange that which is expected to be moving to the other side. At least have these items at your fingertips at the mediation. If the suit involves damages, especially where an insurance carrier is involved, it is a must to have the damages calculated and the evidence supporting damages given to the other side well in advance of the mediation or settlement discussions. Getting authorization for settlement amounts is now a cumbersome process and can rarely be done quickly or changed after minds are made up at the insurance claims or home office.

While examples above relate to personal injury claims, the principle applies in all cases. A well organized and prepared lawyer in mediation will operate far more confidently and effectively than one who is less so. Clients notice this. If no settlement is reached and the client has witnessed their attorney fumbling through the mediation having failed to prepare, they will not only be disappointed but will have doubts about their lawyer, whether they express them or not.

In preparation for mediation and trial, there is a standard by which attorneys are held. Most errors in this respect go unnoticed unless they are patently obvious. Still a client is harmed by poor or marginal preparation. The standard is one applied to the community of lawyers among whom they practice.

Clients expect their attorneys to be prepared for trial. They no doubt also expect they will be as effective as other competent attorneys in preparing for mediation or settlement discussions. To be effective, one must be prepared with that which will have the most influence on the other side in responding to settlement demands or offers. When facing the expense and ordeal of continued litigation and risk at trial, clients deserve a lawyer who provides them the best opportunity for a good settlement.







*David C. Peterson is a full-time mediator on the Central Coast beginning in 1997 and mediating over 1,800 cases. After a 20+ year litigation career, he obtained a Master’s degree and then LLM degree in Mediation from Pepperdine University School of Law, Straus Institute for Dispute resolution (rated #1 by U.S. News & World Report) where he also teaches Mediation Theory and Practice. He is head of the ADR Sections in Santa Barbara and San Luis Obispo (co-chair).  For comments or information Mr. Peterson can be reached at or (805) 441-5884.

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