Disruptive Lawyers Don’t Lead Clients Into a Deposition Money Pit

Disruptive Lawyers take a strategic approach to EVERY case that comes across their desk.

They aren’t just going through the motions. They don’t bill just to bill. They don’t make the outdated assumption that every case is going to go to trial. And they don’t systematically sink your dollars into the “deposition money pit”!

They see a case through a strategic lens, identifying what it needs, developing an early strategy and focusing on “targeted” discovery so it can be most economically and efficiently evaluated and resolved.

They have a unique Mindset and Skill Set that allows them to break cases down into a series of strategic choices that help them deliver YOUR win.

As you’ll see in the story below, the decision to schedule depositions is one of these choices! Why? Because of the aforementioned “deposition money pit.”

What does this mean?

At every deposition I have ever taken or defended, all the lawyers in attendance had a running “To Do” list as the deposition proceeded. We all were identifying more witnesse$ and more document$ and more legal issue$ “potentially” relevant to the case. The depositions routinely ended with a lawyer saying, “I need to also take additional depositions of witness A, B and C. Also, I need another 10 categories of documents as disclosed in the deposition. Finally, you failed to produce X documents so I will be filing a motion to compel.”

Did these depositions get us any closer to resolving the case? In many instances, the answer was NO—especially not when a witness provided compromising testimony, revealed a troublesome witness or identified a problematic document. In effect, if you are heading down the deposition money pit, you better be very intentional and strategic about the risk/reward of doing so.

In sum, unquestionably, some cases warrant extensive depositions—and some can be settled with ZERO depositions, saving you tens of thousands on legal fees and likely indemnity.

A good attorney can spot the difference.

Can yours?

Let’s disrupt something.

Bill

MASTERS OF NEGOTIATION

Join me for Cruser Mitchell’s Masters of Negotiation series and come away with the skills you need to save legal fees and indemnity by creatively and efficiently resolving cases.

February 7 — Playing Chess Instead of Checkers: A Strategic Approach to Negotiation

February 14 — Soft Skills of a Master Negotiator

February 21 — The Leverage Point of Plaintiff’s Needs

February 28 — The Leverage Point of Collectability

March 6 — The Theatre of Mediation

March 13 — Negotiating Claims Valued Under $50,000

March 20 — Identifying the 1% that will Go to Trial

Don’t Throw Cash Into the Deposition Money Pit

As the legal defense industry grapples with cost-cutting measures, there are certain tactics that can be more effective than others. Sure, holding the line on legal rates and auditing legal bills can result in some savings. That said, the real savings are avoiding and/or controlling larger costs—like the Deposition Money Pit! Here is an example of how it is done. 

The Disruptive Lawyer was sitting at his desk reflecting on the fact that he lasted almost 60 days before throwing in the towel on all of his New Year's resolutions. Then the phone rang. It was a claims examiner from an insurance carrier that had just added the Disruptive Lawyer to its panel. 

The claims examiner explained that she had just gotten a new E/O lawsuit. The insured company and ex-employee had been in negotiations for several months over an alleged breach of contract on unpaid commissions. The insured company's outside national counsel and the plaintiff's counsel terminated the negotiations with the plaintiff demanding $1.5 million and the defendant offering around $100,000. The claims examiner further explained that she issued a reservation of rights and her company strictly had a duty to defend. The claims examiner concluded that she was directed to send this "trial balloon" case to the Disruptive Lawyer and wished them good luck! 

The Disruptive Lawyer reviewed the case and arrived at the following conclusions in the first 30 days. First, there was likely a breach of contract. Hence, this meant MSJ was not an option and the case would go all the way to trial. Second, the budget for this complicated case (government contracts, multiple layers of commissions, and about a dozen witnesses) would be at least $200,000 through discovery and trial. Third, given the first two conclusions, the case quickly became about finding leverage to get the plaintiff to be much more reasonable in the negotiations—and sooner rather than later.

The insured company wanted to resolve the case so the Disruptive Lawyer met with the client to come up with various leverage points to trigger the negotiations. What the Disruptive Lawyer learned was (1) the commissions calculation was in the range of $150,000 to $500,000 depending on some subjective inputs and not the $1,500,000+ number the plaintiff alleged, and (2) the company was in dire financial straits. However, neither of these two issues were ever shared with the plaintiff in any detail. So, with the company's permission, the Disruptive Lawyer reached out to the plaintiff's attorney. 

The plaintiff's attorney immediately lit into the Disruptive Lawyer, saying, "You guys have been jacking me around for months. We have over a million in damages. We want to take the entire executive team's depositions in the next 45 days." The Disruptive Lawyer responded, "I appreciate your frustration. Before you spend hundreds of hours fighting me, I think you should sit down with me so that you have a sober view of the case, and I can tell you in a meeting rather than you learn it over several depositions." 

Reluctantly, the plaintiff's attorney agreed.

The following week they met after signing a confidentiality agreement. At the meeting, the Disruptive Lawyer included the company’s CFO and they employed “strategic transparency,” meaning they were willing to share information that was objective and would clearly come out in the CFO’s deposition. Together they showed the plaintiff a detailed analysis of the commission calculation, explaining the "home run" was more like $500,000. Then, the Disruptive Lawyer shared with the plaintiff evidence that any verdict was likely not collectible. Specifically, the Disruptive Lawyer shared the ROR letter that the carrier would not be paying a dime. The Disruptive Lawyer also shared the company's finances over the past three years, showing it was deeply in the red, as well as collections letters from major vendors and a loan document from an investor showing he had recently loaned money to the company to make payroll. The Disruptive Lawyer concluded, "You can get what you can now, or the company will simply let the insurance company pay me to fight you over the next two years. By then, who knows if there will be any entity to collect a judgment from?" 

From there, the parties started to negotiate (without a mediator), and within three hours had settled confidentially with a number in the lower end of the commission range paid over 24 months. Further, by avoiding extensive depositions and opting for a "lawyer mediation," the legal fees for the case were under $25,000. Further, plaintiff’s counsel had little time/money in the case, so the early negotiation allowed for a greater compromise by the plaintiff now as opposed to months later after several depositions and thousands in court reporter fees.

Legal Fees Saved: $175,000 

The takeaway? Not every case requires depositions, as sometimes, the information can be shared informally.

Want to learn more about how hiring a Disruptive Lawyer can help you save time, sanity, and legal fees? Sign up for the Masters of Negotiation webinar via the link above!

Announcing the Cruser Mitchell Expansion

We’re thrilled to announce the opening of offices in Chicago, Miami, and Philadelphia.

Partners Tom Hanekamp, John Maniatis, Nick Daly, and Daniel Berkowitz will lead a team of eight lawyers in Cruser Mitchell’s flagship Illinois office. This team brings to Cruser Mitchell a national reputation and extensive experience representing insurance companies in major insurance coverage matters involving general liability, cyber, toxic tort, management liability and professional liability.

An eight-lawyer team led by partners Pete DeMahy, Kenneth Drake, and Orlando Cabeza—attorneys with an extraordinary amount of trial depth, having tried hundreds of cases and serving as national trial counsel for several carriers and insureds—will be based out of Miami.

And last but certainly not least, partner Meghan Henry, a seasoned attorney and trusted advisor specializing in general liability defense, and counsel Jennifer Kapp, returning to Cruser Mitchell after several years with Chubb, will be opening our Philadelphia office. 

Meghan also hosts an industry-leading podcast, Claims Never Sleep, which she will continue with Cruser Mitchell. The first episode will be launching soon, with a couple of your favorite Disruptive Lawyers as featured guests! Follow Meghan on LinkedIn to stay tuned for more details!

As our firm grows to more than 100 attorneys nationwide, we’re excited to announce the hire of our new Director of Litigation Management, Training & Quality Assurance, Bob Walsh. Bob, who oversaw the handling of catastrophic claims and participated in over 400 mediations as Director of Claims for The Hartford’s Complex Liability Solutions business, has worked closely with Cruser Mitchell attorneys for more than 20 years and consulted on the creation of The Disruptive Lawyer’s Little Black Book of Negotiation. We’re lucky to have him!

Dinosaur of the Month

I recently participated in a seminar where a fellow panelist demonstrated the exact kind of Dinosaur Lawyer speak that makes claims executives lose faith in the value of their defense attorneys: “I believe that every case should be prepared as if it is going to trial!”

How do people still think like this?!?!

He took this position because he believed “to get the best deal, you got to act like you are going to try the case.” 

Where to even begin…

1. This nonstrategic approach is contrary to the Master Negotiator’s #1 rule: EVERY CASE IS DIFFERENT. 

2. This approach ignores the reality that only 1% of the cases are going to trial.

3. Of course there are instances where it makes sense to prepare a case as if it may go to trial—i.e., when there will be a return on this investment.

Everything a Disruptive Lawyer does is for a purpose. This 1990 philosophy needs to be EXTINCT!

The Disruptive Lawyer’s Tequila Corner

Tequila is like wine and real estate—location matters!

Most REAL tequila comes from Jalisco, Mexico. In the lowlands of the town of Tequila is the Volcán de Tequila, a volcano that stopped erupting 200,000 years ago and made the soil perfect for growing agave.

Tequila from the area is spicier, earthier—like a volcano!

So this month I wanted to share a recipe that reflects that fiery heritage.

Here’s how to make a Jalapeño Margarita:

• 2 oz lime juice

• 2 slices jalapeño 

• 2 oz reposado or blanco tequila

• 1 oz triple sec

• 1 oz simple syrup

Coat the rim of a margarita glass with tajin or salt, then fill with ice. In a mixing glass, muddle the jalapeño slices in the lime juice, then add the tequila, triple sec, and simple syrup. Shake with ice until chilled, then strain. Garnish with jalapeño or lime and enjoy.

Cheers!

Ready to get a little disruptive?

Join me for some Disruptive Litigation Advisement.

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