As published in TIPS (Tort Trial & Insurance Practice) Committee News, ABA
This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Can a plaintiff get “full value” at mediation? Some lawyers say no. They say that a full value offer can come only after trial starts, sometimes after a few witnesses.
They’re right . . . in a way. Most defendants are not going to pay at mediation what they might pay at trial, provided everything goes right for plaintiff.
This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Can a plaintiff get “full value” at mediation? Some lawyers say no. They say that a full value offer can come only after trial starts, sometimes after a few witnesses.
They’re right . . . in a way. Most defendants are not going to pay at mediation what they might pay at trial, provided everything goes right for plaintiff.
A case is like a stock whose value goes up and down. Everyone knows a deal is likely at some point. The question in 98% of the cases is, when. As a case proceeds, every deposition, every discovered fact, every motion may affect its value. As with a savvy stock trader, the trick for the plaintiff is to try to sell when the case is strong and the trick for the defendant is to buy when the case’s value is low.
It is a simple fact that time usually benefits the defense. The defense has more time to watch for good opportunities to settle. The plaintiff posts his water skiing pictures on Facebook. He gets better. Or he gets worse, unrelated to the claimed injury. He has another accident. A witness dies. A treating doctor gives a terrible deposition. The plaintiff’s house goes into foreclosure and he calls his lawyer to settle. Suddenly plaintiff’s quest for “full value” is derailed and his lawyer is scrambling.
All negotiated decisions are based on risk. Plaintiff has the burden of proof. Plaintiff has to make sure the case gets through the system, gets assigned to a mutually accepted judge who can hear the case, has to bring and defend against the onslaught of trial motions, has to pick sympathetic jurors, and has to marshal his witnesses and get them to the courthouse polished up and ready to go. Plaintiff has to make sure there’s no obvious trial error. Plaintiff is spending money and investing time taken from other cases.
Meanwhile, defendant can wait and see how everything’s going and stand pat or call. That often means an increasing amount of risk to plaintiffs. That means early risk avoidance is worth less than the home run verdict plaintiff hopes to get and keep, which brings us back to mediation before trial and the plaintiff’s likelihood of receiving full value. There are things a plaintiff can do to improve the chance of a better offer at mediation:
If “full value “ means best possible price, the only way to get it is to win at trial. But when risk is properly assessed and factored in, a plaintiff can receive full value whenever the case settles.
It is a simple fact that time usually benefits the defense. The defense has more time to watch for good opportunities to settle. The plaintiff posts his water skiing pictures on Facebook. He gets better. Or he gets worse, unrelated to the claimed injury. He has another accident. A witness dies. A treating doctor gives a terrible deposition. The plaintiff’s house goes into foreclosure and he calls his lawyer to settle. Suddenly plaintiff’s quest for “full value” is derailed and his lawyer is scrambling.
All negotiated decisions are based on risk. Plaintiff has the burden of proof. Plaintiff has to make sure the case gets through the system, gets assigned to a mutually accepted judge who can hear the case, has to bring and defend against the onslaught of trial motions, has to pick sympathetic jurors, and has to marshal his witnesses and get them to the courthouse polished up and ready to go. Plaintiff has to make sure there’s no obvious trial error. Plaintiff is spending money and investing time taken from other cases.
Meanwhile, defendant can wait and see how everything’s going and stand pat or call. That often means an increasing amount of risk to plaintiffs. That means early risk avoidance is worth less than the home run verdict plaintiff hopes to get and keep, which brings us back to mediation before trial and the plaintiff’s likelihood of receiving full value. There are things a plaintiff can do to improve the chance of a better offer at mediation:
- Communicate before the mediation. Talking to your opponent directly or through your mediator beforehand can eliminate many mixed messages. Without announcing your bottom line, you and your opponent can make sure there are no major barriers which would make the case obviously unsettleable at mediation. Make sure your opponent has the information necessary to appreciate the full amount of the value you’re seeking. A mediation where the plaintiff walks in with a hundred thousand dollars of previously undisclosed specials is not likely to end with a full-value offer.
- Incentivize settlement. Make it clear that your opponent is getting a bargain or a good deal by settling now, either in price or in preventing some key event (an upcoming killer expert’s deposition, a motion, etc.) that will drastically change future case value.
- Come loaded for bear. Treat the mediation conference seriously. Do a convincing submission. Bring your exhibits. Bring video or audio tapes. Bring a witness. Be prepared to show your opponent how you are going to convince your jury.
- Start early. Waiting until the night before trial can make it more difficult to settle. At that point, positions are often locked in and everyone figures they might as well see what happens with judge, motions and jury. Bringing a case to mediation early in the process is a great way at least to get things started. It lets the parties see exactly what needs to be done to convince their opponents, and it gives everyone time to re-evaluate then continue talking and meeting until the case gets resolved.
If “full value “ means best possible price, the only way to get it is to win at trial. But when risk is properly assessed and factored in, a plaintiff can receive full value whenever the case settles.