Introduction
Whether representing the plaintiff in an employment case, professional malpractice, or
personal injury, there are ways an attorney can frame a case to maximize its impact on
whomever is determining the monetary settlement. Beyond the facts and the law, an attorney
needs to convince the person(s) in charge of settlement of the risks involved should the
defendant refuse to settle and push the case to trial.
Frequently, the person who determines how much money will be paid in any settlement is the
insurance adjuster who may or may not understand the law but may have very strong opinions
about your client and/or defense counsel, who is constantly evaluating risk both to his or
her client and the law firm itself if significant losses occur at trial. Major decision
makers may also include the defendant, particularly when the defendant is a medium to
large-size corporation.
Insurance adjusters and defense attorneys seek to control risks. The plaintiff’s attorney
can exploit their need by persuading the defense that there are unknown, unappreciated risks
that cannot be controlled. An attorney owes it to his or her clients to emphasize to the persons
in charge of settlement dollars that there are unique aspects to a case that will make it extremely
attractive to a jury and consequently too risky to try.
This article attempts to set out a few ways in which an attorney can maximize the settlement
value of a plaintiff’s case.
Working with Insurance Adjusters
It’s important to find ways to ensure that the insurance adjuster sets reserves at an
appropriately high amount from the beginning of a case.
A mediator once told me that the single most determinative factor in whether a case settles
at mediation is the reserve amount set by the insurance adjuster when the claim is first
being evaluated (this amount could also be set by the defense attorney or even the defendant).
Plaintiff and defense attorneys alike pride themselves on their ability to assess a situation
and ballpark the potential financial impact of a fact pattern. Therefore, as a case nears trial
if the groundwork is not laid ahead of time, it is nearly impossible to convince some
decisionmakers entrenched in a particular position due to their initial evaluation that the
settlement range actually needs to be adjusted upwards. You must get the reserves set high
from the beginning.
Here are two critical things to do from the onset to insure a proper reserve:
Document the injury. Early on in a case, do the work required to provide objective medical
evidence of the plaintiff’s injuries. For a personal injury case, this may mean MRI’s, CT-scans,
evaluation by medical specialists in the area of injury, even neuropsychological testing where
brain injury is suspected. For a plaintiff who is emotionally damaged, an evaluation by a
psychiatric expert is a necessity, unless you plan not to make more than a garden variety
emotional distress claim. Even in a low-impact, low-property damage automobile accident case,
consider hiring an expert to talk about the extent of the forces involved to show the mechanics
of the injury.
Address a need for future care. In all injury cases, whether physical or psychiatric, or a
combination of the two, consider the need for future care and document it. Defense attorneys
will often attempt to establish that an injury has fully resolved itself in order to limit
financial risk. Conversely, the value of a case increases when a medical expert credibly testifies
that the plaintiff will continue to have problems for which future treatment is required. If the
plaintiff has an unusual injury that his or her treating physician does not appear to fully understand,
consider retaining an expert in that particular injury to testify about the injury and the plaintiff’s
future needs for medical care.
Poor Defense Witnesses Can Increase Settlement Value
Just as unlikable plaintiffs generally decrease the settlement value of a case, unlikable
defendants generally increase it. Since the defendant is not asking for money, his or her
appeal is not nearly as significant as the plaintiff’s, but it still counts. A jury that
dislikes a defendant, and/or finds his or her conduct reprehensible, is more likely to
render a spiked verdict. Therefore, to maximize the settlement value of a case, make sure
defense counsel (or the mediator, or both) knows that you know about specific conduct,
attitudes, acts and behaviors that will be likely to incense a jury.
Concentrate on the Defendant’s Misconduct
Unlike a straightforward negligence car accident case, in which the value of the case
is directly related to the extent of the injury, there are some kinds of cases that have
an extremely high value, even with minor injuries, because of the defendant’s misconduct.
An example of this is sexual harassment or a discrimination case, in which jurors are likely
to convert their anger at the defendant’s misconduct into a significant monetary award for
the plaintiff. Defense attorneys will sometimes make the mistake of evaluating harassment
and discrimination cases in terms of the extent of the injury, which is not a reliable
predictor of jury awards. These are sometimes difficult cases to settle. The plaintiff’s
attorney might overcome resistance to settlement of harassment and discrimination cases by
providing the defense with jury verdict awards in similar cases and similar injuries.
A case involving willful or reckless behavior should rarely settle for the same amount as a
simple negligence case. Hence, a drunk driving case resulting in the same kind of injury as a
simply negligent car accident has an increased value because of the defendant’s misconduct by
driving intoxicated. Do not limit yourself to examining the defendant’s behavior during the
actions leading to the lawsuit. A defendant’s behavior during discovery may also be key to
spiking the value of a case. A defendant who claims, for example, that he was unaware of a
defect at the time of an accident on his property, will anger a jury when you prove that he
or she had clear knowledge before the accident. A defendant who testifies that he was traveling
within the lawful speed limit will anger a jury that learns he or she was traveling fifty miles
over the speed limit. Pay attention to how the defendant behaves during his or her deposition.
The same principle applies to professional liability cases, where arrogant and unfriendly
professionals inspire larger verdicts than kindly, well-intentioned professionals who made
careless errors. If it works in your client’s favor, capitalize on the abrasive personality
of the defendant(s).
Try Your Good Cases
There is nothing more important you can do to increase the settlement value of all your
cases than by receiving good verdicts in the cases that you try. Don’t be afraid to take
your good cases to trial.
Settlement Demands, Conference Statements, and Mediation Briefs are Critical
First impressions are lasting, whether good or bad. A well-written, amply-documented
settlement demand may not settle the case immediately but will offer the defense attorney
or insurance adjuster evidence of your competence, knowledge of the law, and conviction of
the merits of the case. Similarly, do not assume that the settlement judge or mediator –
or even the defense attorney — knows your area of the law as well as you do.
A well-researched, non-emotional legal memorandum that sets out the facts, the law, and
the particular facts that trigger special attention should be part of any settlement
demand and pleading.
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