Negotiating is a Game for Deep Thinkers

Are your attorneys reviewing cases with a critical eye that not only focuses on their client’s (e.g. the insured’s) case but goes further by developing facts/arguments/leverage to “frame” a compelling resolution strategy that even the plaintiff can’t pass up?

For example, how about the case of questionable liability but huge injuries/damages where the plaintiff hated working at the post office but was demanding $10,000,000 in her lawsuit? Suffice it to say, if she won at trial, it was likely she would get an award in that range. At the mediation, the disruptive lawyer framed the issue for the day as this: “Plaintiff, there are 2 inevitable outcomes here. Either (1) we are going to pay you enough money to allow you to retire from work and move to the beach; however, we are not going to pay you enough that you have 2 beach houses and a Lamborghini or (2) we are going to try the case in a year and if we win, the following Monday after trial, you will not be heading to Florida, but instead sentenced to 5 more years as a postal employee? Result: Let’s just say the US Postal Service has one less employee who moved to Florida in her minivan.

This is a deep thinker game. Is your team thinking at this level? Enjoy another story about “framing” below.

Bill

MASTERS OF NEGOTIATION

92% of all cases settle—but when?

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.

The Fall Masters of Negotiation Series began September 6, 2023, but it’s not too late to register.

September 6 — Playing Chess Instead of Checkers: A Strategic Approach to Negotiation
September 20 — Soft Skills of a Master Negotiator
October 4 — The Leverage Point of Plaintiff’s Needs
October 18 — The Leverage Point of Collectability
November 1 — The Theatre of Mediation
November 15 — Identifying the 1% that will Go to Trial as Early as Possible

Master Negotiators See What Others Don’t

The Disruptive Lawyer was talking to his IT technician about how to recall a dozen “Falcons are the Champs and Patriots Stink” emails, when he was interrupted by the telephone. It was one of his favorite clients. She explained that she was doing lawyer E/O work, had inherited a file that had been litigated for over a year, and it was heading to mediation. The panel counsel lawyer on the case submitted a pre-mediation report seeking about $350,000 in authority. The client felt the number was a bit high and wanted a second opinion, so she called the Disruptive Lawyer to get his take.

The client explained that the insured was a personal injury lawyer who signed up a car wreck case where the plaintiff was injured and had about $220,000 in medical bills. The lawyer/insured requested in writing, per a state statute, that the insurance company “produce the Declaration Page(s) of all possible insurance which may cover the subject car wreck.” The insurance carrier responded by producing one declaration page with $500,000 of insurance limits. Given there were other plaintiffs injured in the incident who could get part of the insurance limits, the lawyer/insured settled the claim for $375,000. Apparently not happy, the plaintiff went to another lawyer.

The second personal injury lawyer reviewed the produced $500,000 declaration page and noted that on the very bottom, in small print, were four boxes. There was a check mark in the box labeled “Umbrella Insurance.” The second personal injury lawyer made a demand to the same insurance company for any additional insurance, and the carrier produced the declaration page of a $1,000,000 umbrella policy which was not produced to the first lawyer/insured.

Hence, the second lawyer filed suit against (1) the first personal injury lawyer/insured claiming negligence in failing to obtain the umbrella policy and (2) the insurance company alleging fraud in failing to produce the declaration page of the umbrella policy. After a year of litigation and $80,000 in fees, the case headed to mediation.

When the client finished her story, she said, “I would like for you to step in because I do not think we should pay as much as $350,000 to settle this case. I’m willing to perhaps go to $200,000.”

Two weeks later, the parties attended the mediation, with the Disruptive Lawyer serving as “Monitoring Counsel.” At the mediation, the plaintiff’s second lawyer made a compelling case as to why his client had a $1.5 million personal injury case and how his client got short-changed by the alleged low limits caused by (1) the lawyer/insured’s negligence and (2) the insurance company’s blatant fraud. The lawyer declared both defendants had equal blame and concluded by demanding over $2 million, as he sought punitive damages on top of the underlying injuries.

At this point, the Disruptive Lawyer did something he had never done in his career: He immediately asked the mediator for a “lawyer meeting” with the plaintiff’s second attorney, and it was granted. In the meeting, the Disruptive Lawyer opened by stating, “I love your case against the billion-dollar insurance company. They had a duty under the law to produce the declaration page of the umbrella policy, but didn’t. And, in your mediation opening statement, you convinced me that the insurance company should really be concerned about punitive damages exposure. However, you do realize that while the law allows ‘alternative and inconsistent theories’ in pleadings, you are completely undercutting your punitive damages claim in front of a jury by having my client in the case, right? You can’t speak out of both sides of your mouth. Either the lawyer should have discovered the policy or the carrier fraudulently concealed it in violation of the statute. In sum, my client would be your star witness. They hid the dang policy from him, too!”

The Disruptive Lawyer went on, “And, the jury is not going to give this carrier a windfall. They have $1.5 million of coverage, so if the claim is worth more than the $350,000 earlier settlement, the jury will make them pay it—not this local lawyer to whom they lied about coverage.” He then concluded, “So, I guess what I am saying is that you don’t need us in the case because you’ll get paid. And worse, if you’re trying to go after punitive damages against the carrier, your theory against us completely undercuts that claim. Bottom line: here’s $75,000, which covers all the costs and fees for dealing with us. I’ll give you until the end of the day to make your decision.”

Based on the plaintiff’s lawyer’s nonverbal reaction, it seemed he clearly had an epiphany about his case as he exited the room. Indeed, at 5:30 that evening, the mediator entered the Disruptive Lawyer’s caucus room to state, “The plaintiff has accepted your offer if you pay his cost of mediation, as the claim against the insurance company did not settle.”

As the Disruptive Lawyer packed his bags, his insurance client wondered out loud, “What do you think would have happened if we had educated the plaintiff’s lawyer a year ago about why he shouldn’t have sued our insured lawyer? I wonder if we could have avoided paying the panel lawyer $80,000 to defend the case.” When she turned to hear the Disruptive Lawyer’s answer, he gave a cordial smile and told her his $10,000 flat fee bill would be forthcoming soon.

Indemnity Saved: $125,000-$275,000

Legal Fees Saved: $60,000

Want to learn more about how hiring a Disruptive Lawyer can help you save on legal fees and indemnity? Sign up for the Masters Of Negotiation webinar per the link above!

In The News

The Georgia Court of Appeals issued a decision that opened the floodgates to gotcha negotiations.

In Pierce v. Banks, the settlement offer in question was demanded on “the 15th day after acceptance.” Payment arrived before—not after—the 15th day. Normally early payment would be a good thing, but the court determined that the payment failed to abide by the offer’s terms because it didn’t arrive on exactly the 15th.

This is a total nightmare scenario. The demand could say the release must be printed in rainbow colors and you would have to comply. The demand could say the check must be delivered by a yodeling courier. It could say anything plaintiff knows you won’t do—all just to sink the deal.

Hopefully the Supreme Court will see through this blatant approval of gotcha negotiating. But if not, a legislative solution will be completely necessary to prevent this sort of insanity.

The Disruptive Lawyer’s Tequila Corner

I recently learned that if the people from the ancient city of Teotihuacan hadn’t had tequila (or, well, something close enough) they would have died!

The agave drink gave them nutrients, probiotics, and calories when drought killed other plants.

It’s great to know that I’m doing the healthy thing by drinking so much of it.

Here’s a recipe for a Leche Mexicana, which reminds me of the “milky” Teotihuacan cocktail:

• 2 oz of reposado tequila

• 1 oz of crème de cacao

• 1/2 oz of coffee liquor

• 1 oz of cream

Shake with ice until chilled, then strain into a highball glass. Garnish with nutmeg (for extra health).

Cheers!

Ready to get a little disruptive?

Join me for some Disruptive Litigation Advisement.

Thanks for reading The Disruptive Lawyer’s Little Newsletter.

Want to know more about how to disrupt litigation management? Follow me on LinkedIn.

Was this newsletter shared with you? Subscribe here.

The Disruptive Lawyer’s Laugh Break