Wednesday, October 11th, 2017

Secrets of Lawyers Who Get Their Cases Settled

March 28, 2014 by  
Filed under Newsletters

There’s No Bigger Secret Than Being Prepared

Before anything else, preparation is the key to success”  Alexander Graham Bell

In my years settling cases, I’ve found similarities in the cases that settle and the attorneys that settle them.  There are many reasons cases don’t settle, but not being prepared is the root of all. To be prepared is more than preparing a mediation brief and serving it to the mediator and opposing counsel a few days before the mediation and talking to your client the day before.

Settling cases extends to preparing your client for deposition.  If your client makes a good impression on opposing counsel, she will believe that your client will make a good impression on the jury.  And, possibly nothing helps a case more than a client who is well-liked by the jury.  At the recent SFTLA Seminar Defense Perspective in PI Cases, Maggie Grover, mediator, discovery master and employment lawyer focused on thorough and excellent preparation of plaintiff for her deposition.  No stone should be left unturned in preparing your client into a comfortable, confident witness on her own behalf.  She suggests doing the depo. prep several days in advance so the client can have time to absorb it all, conducting plenty of mock of questioning, reviewing the answers and repeating the mock questions, so that the client will have time to absorb it completely.

Share your prepared case with the other side – early

Being prepared allows you to be open – I recommend that you give the other side what they want and need.  When you’re prepared, you have everything ready well before the mediation to turn it over to opposing counsel.  Plaintiff – give the defendant everything they need to evaluate the case – medical records and bills.  It is especially important to recognize the Howell numbers in PI cases.  Including the correct medical specials goes hand in hand with not overreaching.  Plaintiff counsel will lose negotiating credibility by making a demand that is too large in relation to the case.  If, as plaintiff counsel, you make a seemingly large demand, be sure to back it up with your reasoning why the case should have such valuation.

Plaintiff is best served by making a demand early.  In this way defense counsel and insurance adjuster, if any, have plenty of time to evaluate it and discuss at roundtable or committee.  Defendant, if you’ve been provided an opening demand, or even if not, provide your opening evaluation and offer to settle the case.

Avoid Personalizing the case which can lead an attorney to their most zealous advocacy, but when the client’s cause becomes personal and these feelings are exhibited to opposing counsel, it often decreases the ability to work together toward compromise.  The more counsel is prepared, the better they the know the facts and the law applying to the case, the more objective they will be, and thus able to remove themselves personally.

Prepare Your Client

Of course, in preparing for mediation, preparing your client is extremely important.  Your client must be attending the mediation with a desire to settle the case.  If the client’s intent is something other than resolution, counsel should confidentially inform the mediator.  Your client must understand that there will be a negotiation over money (in most cases) and the value of settling versus the case continuing on.

Sometimes we are too busy with other matters, bigger cases, and deadlines that prevent us from properly preparing for mediation.  But there is no bigger secret to settling cases at mediation than being properly prepared.

Kevin C. Coleman has been settling cases as a neutral since 1996 is a professional mediator performing mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma and throughout the state. Contact San Francisco Bay Area mediator Kevin C. Coleman online or by calling 415-488-7609. 

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