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TECHNIQUES THAT STRENGTHEN YOUR BARGAINING POSITION Francis G. Murphy
Hall Stewart, PA
1. Generally:
! You cannot make a silk purse out of a sow’s ear – even with the cleverest of techniques.
! Good techniques can help draw attention to important details of the claim and otherwise put emphasis on matters that strengthen your claim.
! They can also help persuade the other side that you have the ability to present the claim well to a jury if settlement is not achieved. By doing so you affect the other side’s risk/benefit analysis as to whether to let the case go to trial.
2. Supporting Documentation:
! Unsupported assertions will be and should be given short shrift by your opponent. Accordingly, it is necessary to back up your generalizations with documentation that provides the factual detail behind each element of the claim. Some examples of supporting documentation are:
• Medical records, reports, and bills, together with
• Summaries of them.
• Life Care Plan, with future medical costs.
• Tax returns, pay stubs, payroll records.
• Photographs of scene and of collision damage.
• Photographs of scars, contusions, slings, casts.
• Expert reports with curriculum vitae.
• Prescription records.
• Weather records.
• Business records and financials.
• Diagrams and maps.
• Anatomical charts and illustrations.
• Anatomical models.
• Product diagrams or illustrations.
• Information from the Internet – explaining a medical condition, a product, a service.
These types of supporting documentation inform the opposing party about the details of the claim and also reduce the risk that erroneous assumptions are made about the claim. These are necessary for the other side to evaluate the strength and value of the claim.
The Internet provides a wealth of materials on medical product literature with useful illustrations.
Summaries of voluminous records are a necessity so that the forest – the big picture – is not lost in the trees – the mounds of detail.
For example, copies of prescriptions and their corresponding bills can and should be provided to support a personal injury claim.
The following summary does more than document a medical special. It supports a contention that the client suffered considerable pain over an extended period of time.
3. Presenting Award Scenarios for Comparison:
If the alternative to settlement is a jury trial, the jury will ultimately be asked to value the claim. Without a doubt, no completely accurate prediction can be made. We are left with looking for “comparables” to use the real estate term. Recent instate verdicts in cases with similar facts can be pointed out as bellweathers of what a jury may do with this case.
The further afield in terms of time, court venue, and facts are from the facts of the claim under consideration, the less comparable that verdict is.
Another way to obtain useful information towards valuing your case is by conducting a mock jury. Ordinary citizens are assembled, and a summary trial is presented to them. The mock jurors then deliberate by themselves and then in the presence of the mock trial coordinator. A verdict is arrived at and reported to the group. The coordinator interviews the jurors and gathers opinions and insights as to how they arrived at their verdict and what considerations influenced them.
The mock trial can provide strategic assistance as to how your case should be presented or defended. The coordinator can ask the jurors “what if” questions to get a sense as to how they would react if the case were presented to them differently.
It is a delicate issue as to whether the results of a mock trial be disclosed to the other side. In the right circumstances, the findings of a mock jury may be persuasive to the other side.
4. What role should the client have during a mediation?
The only indispensable role for the client at mediation is as ultimate decision-maker, deciding whether to settle and on what terms.
Should the client take an active role in presenting his/her side in the dispute? The answer depends on a number of considerations including:
• Will the client make a good presentation?
• Will his/her involvement create emotional obstacles to finding a rational solution?
• Will involvement have a cathartic effect and remove emotional obstacles?
The client should take as active a role as he/she feels comfortable during the course of the mediation. Counsel needs to recommend flexibility as options for resolution are explored. The client should be encouraged to listen to the points being made by the mediator and to offer creative solutions that can move the discussions toward settlement. The client should continuously reassess his/her interests and BATNA.
5. Proposing Settlement Amounts Incrementally:
Most mediations of personal injury cases, in my experience, proceed mostly from the “position-based” approach denigrated by the authors of Getting to Yes. A demand is made, starting the ping pong game of back and forth negotiation over money, with each side moving incrementally, hopefully, to an agreed-upon settlement figure.
From the claimant’s point of view, the initial demand should not be so high that the other side decides not to respond until the claimant “gets out of the twilight zone” and into a realistic zone. The claimant, if he/she starts too high, may be left “bidding against himself” by making a unilateral move downwards, thus losing face.
If the respective positions of the parties seemed to be at an impasse, the focus can be changed by a movement into the “interest based” negotiation advocated by the professional mediators. Or there can be a search for areas that can be the basis for agreement:
• The amount of medical bills.
• The presence or absence of pre-existing conditions.
• The amount of lost wages.
• The period of disability.
• Low ball position taking.
There are times when there is no basis for true negotiation because the insurance company is low balling a low end claim. You cannot negotiate with Colossus or the equivalent generalized approach to claim evaluation. Too often the Allstates and Progressives of the world waste everyone’s time at a Rule 170 mediation.
The only choice for the claimant is “take it or leave it.” The “leave it” or BATNA alternative has to be weighed more seriously in those circumstances.
In multi-party negotiations, impasse may be broken by trying to achieve a partial settlement. If settlement is achieved with one party, the other’s assessment of its position may be re-calculated in the light of now being left alone to defend the claim.
In the area of Nilsson and DeBenedetto, where fault is aportioned among all potentially responsible parties, the failure to reach a comprehensive settlement creates new challenges. To review feature article: GETTING READY TO NEGOTIATE click here
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