Negotiating the ultimate settlement

Upchurch Watson White & Max

Mediation Group

and the University of Florida

Levin College of Law

Institute for Dispute

Resolutionare proud to cosponsor today’s Webinar:

NEGOTIATING THE ULTIMATE SETTLEMENT

Negotiating the Ultimate Settlement

MEET …

Our moderator,Sandy Upchurch

Mediation CounselUpchurch WatsonWhite & Max

[email protected]

uww-adr.com

Our presenter,Charles A. “Chuck”Mancuso Mediation CounselUpchurch Watson White & [email protected]

uww-adr.com 2

mailto:[email protected]

http://www.uww-adr.com/


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NEGOTIATING THE ULTIMATE SETTLEMENTPRESENTED BY CHARLES A. (CHUCK) MANCUSO

Negotiating the Ultimate Settlement 4

AGENDAIntroduction

Evaluation of Liability

Evaluation of Damages

Initial Demand

The Bottom Line

5Negotiating the Ultimate Settlement

INTRODUCTION

BE YOURSELFBE OPEN


ON BEING GENUINE• Negotiation techniques and strategies are often written about

and examined by other attorneys, but the best techniques for you should be what comes naturally to your character and demeanor.

• Develop your own style and techniques based on basic fundamentals.


ON BEING RECEPTIVE• Candor, fairness, and a willingness to maintain an open

dialogue are traits that appeal to an adjustor and a defense attorney. Provide them with information promptly and efficiently. It often makes their job easier in evaluating your claim. Without an open dialogue and transfer of information, no negotiations can occur and there will be no settlement.

• Never let communications completely shut down. It makes you look eager when you want to resolve the matter and have to reopen negotiations.


TO NEGOTIATE, YOU MUST HAVE THE LIABILITY ISSUE AND ITS COMPONENTS FULLY ADDRESSED AND EVALUATED. WITHOUT A PROPER EVALUATION OF LIABILITY AND POSSIBLE REDUCTIONS FOR COMPARATIVE NEGLIGENCE, YOU WILL BE UNABLE TO ADDRESS THE DAMAGES ISSUE ALONE.

EVALUATION OF LIABILITY


WITNESSESHave statements secured from all witnesses. Turn over all of the rocks now so nothing will surprise you from your opponent in the future (i.e. take the offensive).

• The best record in obtaining statements would be a signed, recorded statement of your witness. If your case does not merit this expense, then just pick up the phone and call the witness yourself. They may be those listed on the accident report or those relayed to you by your client.

• Ten minutes of your time will provide you with invaluable information during negotiations. Even if no positive information is obtained, it will be beneficial in your negotiations with your opponent if they know you have spoken to all the relevant witnesses regarding your claim.


THE SCENEPhotographs of the scene taken by the investigating officers and/or paramedics should be obtained. If none were taken and if the physical area is beneficial to your liability theory, then you should take photographs of the area.

For severe damages, aerial photographs should be obtained. Aerial photograph packages can now be purchased for under $300. (They) are impressive and can be used to emphasize the seriousness of your claim ….


The most severe accidents usually generate media coverage. This coverage often contains some of the first photographs and video documented aspects of your case.

MEDIA INFORMATION


HOW TO OBTAINLOCAL NEWSPAPERS

Request copies of print and photo material that may have been generated from the accident (photos are often the most dramatic and of the finest quality). Both can be obtained for a small fee, and a reporter’s written account of the statements made at the scene can be helpful and do not fall within the accident report privilege.

TV NEWS

Video will often provide you with helpful and compelling information. For accidents warranting TV coverage, the assistance of a video recovery service should be used to contact all news stations in the market, obtain all videos taken at the scene and editing numerous clips into one video. You can then use your own technician to edit repetitive coverage and provide the video with a custom introduction and other graphics where needed.


You will know at the time of your initial review of the case if the liability issue, combined with the severity of the damages, warrants the retention of an accident reconstruction expert.

LIABILITY SUPPORT


TIME IS ON YOUR SIDE• If the case warrants the use, then retain the accident

reconstruction expert immediately. Have them at the scene as soon as possible. Remember, you are at a great advantage. Long before your opponent can retain this type of expert, your expert will have personally visited the scene. Debris, gas and oil spills, skid and scuffmarks and vegetation damage quickly disappear. Your expert has the edge.

• Your opponent’s experts in the future will only have the favorable information collected by your expert to review.


ONCE YOU HAVE ESTABLISHED A WORKABLE LIABILITY THEORY, YOU SHOULD NEXT OBTAIN ALL RELEVANT DAMAGE INFORMATION. THIS IS THE MOST VALUABLE ASPECT OF THE CASE FOR YOU AND YOUR CLIENT.

EVALUATION OF DAMAGES


INITIAL NEGOTIATION CONTACT

Be thorough, complete, and informative. It is often at this stage the insurance carrier will initially evaluate your claim and set a reserve on your file.

• Reserves, although not etched in stone, often place your claim in an initial monetary category that is the most difficult for the adjuster to increase. They will often be embarrassed to request an increase from a superior of the reserve. This could place the adjuster in an uncomfortable situation. Remember, always make it easy for your opponent to evaluate and settle your claim.


PHYSICAL INJURYMEDICAL RECORDS

Obtain all current medical records prior to the initial negotiations, including: ambulance, paramedic, emergency room, treating, and referral physician information. There should be nothing left out that may allow your opponent the opportunity to stall for time while the information is obtained

FINAL REPORTS

Final reports should have been requested from all treating doctors, preferably, on per treating specialty.

Your final report should also contain an estimate by the doctor of any future recommended care and treatment, including physical therapy. Documented future medical care and treatment will validate your claim for those expenses.


TANGIBLE MEDICAL HISTORY


PHOTOGRAPHSIf the injuries merit such, have a photographic history prepared prior to negotiations. Preferably, this should have been initiated soon after you signed up your client.

Time is of the essence, as bruising, swelling, stitches, and staples are often non-existent at the time of settlement. Very often, if any plastic or reconstructive surgery was performed, the doctor or the hospital takes photographs prior to the procedure. These photographs should be obtained and often have to be specifically asked for.


If visual objective tests, x-rays, MMI’s, Cat scans, or thermograms enhance or substantiate your claim of damages, then have them copied and ready to be provided to your opponent.

POSITIVES/ENLARGEMENTS


ARTISTIC RECONSTRUCTION

If the damages are severe, or if the complexity make them uncommon, you should utilize artistic reconstruction specialists. They will recreate the initial injury and its damage as well as explain and visualize the surgery or care required to address the injury. At trial, these exhibits can be used by your treating doctors to graphically explain their care and treatment.


Any appliances utilized by or implanted in your client should be saved. Letting your opponent know you have or will have that rod, brace, or screw ready to show the jury will enhance your ability to elaborate in the seriousness of your client’s injuries.

APPLIANCES


PRIOR MEDICAL HISTORY

Obtain all records yourself (don’t rely on your client) so you will know if your case will be poisoned if you are forced to litigate Normally these are not sent voluntarily to the lawyer.


ECONOMIC DAMAGESIntroduction

• Economic damages are the most tangible damages, but often the most undocumented and unsupported. At the initial phase of negotiations, these elements can greatly enhance your claim.

• Proper documentation will provide you with substantial backing for an economic claim in a soft tissue case and will obviously enlarge the major economic losses in the most severe of cases.


ECONOMIC DAMAGESPast and Future Medical Expenses

• These are the easiest of damages to substantiate. Have all past bills compiled and ready to provide to your opponent.

• Future medical expenses for care, treatment, therapy, and medication should be documented within the final reports of your client’s treating doctors.


ECONOMIC DAMAGESWage Loss (Soft Tissue/Minor Injury Cases)

• The past wage loss can easily be documented by statements from your client’s employer or by evidence of your client’s PIP “Wage and Salary Verification” form. Very often, this may be a minor claim as a result of the PIP payments, but may be substantial if the medicals have exhausted PIP.


PROPERTY DAMAGE

Photographs and property damage estimates should be in your file. If the damages are severe enough, you should have the vehicle held in storage or made readily available to your opponent. Don’t photograph if damages are not easily seen.


HEDONISTIC DAMAGESKnow Your Client

• There will be no way you can make substantial demands for hedonistic damages (pain and suffering, loss of ability to enjoy life, etc.) unless you know your client. You must reconstruct your client’s life and be ready and able to inform your opponent of your client’s life history, including:


ELEMENTS OF CLIENT’S LIFE HISTORY

Education Health Employment

Family Recreational Athletic

Civic Friends and Relations


HEDONISTIC DAMAGES (CONT.)• Take your client out of the “ordinary life”. Each one of the

previous elements will be affected as a result of your client’s injuries. Examples and comparisons should be made in each category showing how your client lived their life and how they will be affected in the future.

• Without a proper understanding of the totality of your case, you will be negotiating towards a settlement that will not reflect all of the damages incurred by your client. This partial evaluation of your claim will result in a partial settlement.


ECONOMIC DAMAGE SUPPORT

Calculating the economic damages in moderate to severe auto cases often requires experts who can convert the physical injuries into monetary losses.


NON-MEDICAL EXPERTS• You should know when you sign up the case if it merits the

use of non-medical experts. If so, don’t wait to place them on retainer and to provide them with the information they need.

• The two most important non-medical experts are:• Economic• Vocational rehab specialists


NON-MEDICAL EXPERTS (CONT.)• They cannot issue a final opinion until the severity of the

medical condition is evaluated and your client is at MMI.• In order to have their information ready for you in negotiating

a settlement, you should forward all information they require, that you have in your possession, prior to MMI.

• Interviews and questionnaires with your client, and research regarding occupation, past income, and past household services performed can be completed and prepared prior to MMI. Having this work done early on will save time after MMI when you can engage in settlement negotiations.


INITIAL DEMAND

BE REALISTICCONTROL INFORMATIONPRESENT SETTLEMENT PACKAGE

CONTROL PRESENTATIONRECOGNIZE THE NEGATIVE


BE REALISTIC

Research the value of your case if it strays from the usual set of damages that you handle in your daily practice. Being able to cite recent local jury verdicts will remind your opponent of the possible exposure and support of your demand. The Jury Verdict Reporter, P.O. Box 20728, Tallahassee, Florida, 32316, is an excellent source.


BE REALISTIC (CONT.)• Talk to fellow attorneys and obtain their advice and

recommendations regarding damages, as well as any past experiences they may have had with your opponent (whether it be a defense attorney, insurance company, or independent adjuster).

• Utilize local case evaluation clinics. Many area Trial Lawyer Associations have case evaluation clinics prior to their monthly meetings. For a more complete and in-depth evaluation, utilize the Academy of Florida Trial Lawyers case evaluation clinics presented at their various conventions around the state.


CONTROL OF INFORMATION

You call the shots. Once you have compiled your information, based on liability and damages, you can decide on what information to release and at what times.


SETTLEMENT PACKAGE

When you forward your settlement package or present it at mediation, do it “first class”. Have it bound and hold punched with a directory and index. Make it thorough and complete with all the information you deem relative to be presented at that time. Remember: make it easy for your opponent to resolve the dispute.


PRESENTATIONThe only aspects of the case that plaintiffs and attorneys have total control over are presentation, preparation, and appearance. After all, you can’t change the facts; you can only argue the law. Show up sober, don a suit, and half of the battle is done. Letting your opponent know you are prepared to try a case and that you know all of the aspects concerning liability and damages will enhance your negotation style. Be on the offensive and place your opponent in the corner and on the defensive. Let them know that they are “behind the eight ball” and are literally months and thousands of dollars behind you in discovery.


RECOGNIZE THE NEGATIVE• Part of keeping an open mind during the collection of

information, while you piece together your liability and damage theories, is the recognition of the negative.

• Very often, as we get deeper and deeper into a case, we can no longer see the forest through the trees. Identify the negative aspects of your case and let your opponent know that you have taken them into consideration (e.g. liability vs. speeding, and damages vs. age of plaintiff). Take your opponents’ arguments away before they can rely on them. In layman’s terms: Come right out with the negative.


THE BOTTOM LINE

PROPER ETHICAL GUIDELINESPAYBACKS ARE HELL


PROPER ETHICAL GUIDELINES• Proper ethical guidelines mandate you should not make any

demands or reject any offers without your client’s consent. Document all demands and offers and confirm with your client their desires.

• Clients are concerned with one issue in the thick of negotiations: how much will they incur? Remember to sell your client what is in their best interests and always be prepared to convert a demand or offer amount to your client’s net recovery after attorney fees, costs, medical bills, and liens are taken out.


PAYBACKS ARE HELL• To understand your client’s bottom line, you must recognize

the numerous medical liens in your claim.• Your failure to recognize and address these liens at the time

of negotiations and settlement may make you personally liable to satisfy these liens in the future.


POSSIBLE LIENSThese liens may reduce your damage request for outstanding medical bills, but should be included as outstanding at the time of negotiations. If they are paid back, they are outstanding:

• Hospital liens• Worker’s Comp liens• HMO liens• Medicare liens• Medicaid liens

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“Negotiating the Ultimate Settlement”

Florida Bar Course #

1407471N1.0 CLE Credits

General1.0 Civil TrialCertification

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Negotiating the ultimate settlement

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