As published in The Chicago Daily Law Bulletin
A. Something You Don't See Everyday
--"Years ago I did have a case where there were three half sisters whose mother had died. No will.
"The one half sister who opposed the other two called me since she'd had a prior injury case with me. It quickly devolved into the most extraordinary odd probate case ever. There were police called to ensure that the 'magic suitcase of personal belongings' wasn't taken when one of the three entered the residence of the deceased mom. There was a car that was up on blocks that didn't run, but since it had been used in a movie, it was 'famous' , and therefore valuable (to them).
--"Years ago I did have a case where there were three half sisters whose mother had died. No will.
"The one half sister who opposed the other two called me since she'd had a prior injury case with me. It quickly devolved into the most extraordinary odd probate case ever. There were police called to ensure that the 'magic suitcase of personal belongings' wasn't taken when one of the three entered the residence of the deceased mom. There was a car that was up on blocks that didn't run, but since it had been used in a movie, it was 'famous' , and therefore valuable (to them).
"But the big issue of contention was that mom had been cremated and the other two were unhappy about that. The evil two had wanted her ashes put into a 'windmill ornament' at the husband's gravesite (don't ask!) while my client just wanted the ashes interred.
"We went back and forth for several court appearances, eating up attorney's fees on unbelievable silliness. We had Judge X, who was an old character even then, in the 90s. He told the attorneys to come up with an agreement on the amount of ashes each party received.
"We began negotiations. The other who wanted six tablespoons of ashes whereas my client was offering less, one teaspoon. We even had a discussion where no one believed my culinary knowledge that a tablespoon was a 3:1 ratio to tablespoons. The other attorney said it was four to one while Judge X said it was 2 to 1. I actually took a break from court, wet to the payphone in the hall and called my mother, who was a superb cook and confirmed the 3:1 ratio. I informed the court. I even billed the file .1 hour talking to my mom. What Jewish attorney can beat that!?
"Ultimately, once we got the ratios correct, we got down to 2 teaspoons offered by my client to 2 tablespoons (6 teaspoons) the other side wanted. There is an order circa the late 90s that I entered giving the other 2 sisters 4 teaspoons of the mother's ashes. I wish I'd scanned that, but alas, there were no scanners in those days and I tossed it long ago."
B. Good Advice We Just Don't Take
--"My mentors and very well-respected trial attorneys always told me to 'prepare the case for trial and it will settle.' Especially lately, I have found that preparing the case at the onset for trial paves the way to successful settlement results."
--"Tell the other side you are going to trial tomorrow."
C. Just Plain Good Advice
--"High low agreements with one party that include priority of execution term can work well."
--"We have found that in medical malpractice cases, frequently the individual physician(s) does not want to consent to settle but the organization wants to. We have found that offering to dismiss the individual physician if a settlement is reached and confirmed between the plaintiff and the defendant organization, has been very helpful in getting medical malpractice cases resolved."
D. Go Through the Gut
=="If you do not let the parties adjourn for dinner and work through the issues to agreement, hunger will compel a settlement."
E. Come Prepared. Come Very Prepared.
--"Defendant took out how own wallet and paid 1k of his own money."
F. And Then There's Just Doing It Right
--"I have found that a correct statement of the facts (including major contested facts) goes a long way to starting a good mediation. When I see attorneys making statements about the case that misrepresent the evidence, it is a sign to me that they are not at the mediation in good faith.
"This tactical error is sometimes made because the person at the negotiation does not know the facts of the case, yet may be there in good faith. If I determine that he or she has authority to talk, but does not know the case, I try to straighten him/her out."
G. Or Maybe, Just Not Doing It Wrong
--"Recently I presented to plaintiff's counsel, a video of his client doing a cannonball into a pool and a photo of him on a rollercoaster - this was all taken from his Facebook account....so we did get a better settlement using his social media page and both these were dated after our accident - it's always in our best interest to check plaintiff's social media accounts. I also was dealing with an attorney who stated his client couldn't work or stand for long periods of time, sure enough, I checked her Facebook page and there she was making and selling handmade soaps on her Facebook page. Once I told her attorney this information, we settled it for much lower than the attorney wanted."
H. A Respected Judge Says
--"For lay plaintiffs, especially those with civil rights types of cases with appointed counsel, it is sometimes a good time to make another run at a settlement after the jury is picked. A plaintiff who has lived with his case for a long time may realize that 8-12 strangers who know nothing about the case will be deciding the case. The bird in the hand may suddenly look better than the risk."
I. Walking the Walk
--"On a suicide case, one of the defendants offered to name a room (meeting room) in the hospital after the patient who committed suicide. Also, there were discussions about donating money to the patient's suicide prevention awareness charity."
--"I actually did an honorarium for the decedent. We set up a yearly award for a nurse to go to specialized training in honor of the patient who died. The family was pretty happy."
--"Many years ago, I had a case involving two extremely wealthy business partners. The relationship had soured to a point of no return. Their funds were seemingly unlimited. The way I settled the case was as follows: One of the individuals donated a large sum of money in honor of the other individual to the donee's favorite charity. Of course the donor received a large tax deduction and the donee received an honor and a great deal of satisfaction. In any event, it worked."
J. Not For Everyone
--"In judgment enforcement there are times when third party respondents (employers, garnishees or citation respondents) fail to follow the law after repeated attempts to have them respond to court process. Their failure to respond then leads to a final judgment against them as a sanction for their lack of response. The final judgment against them is for all sums due the creditor. Although the third party may seek to vacate the final judgment, it may be expensive with no guaranty of result. To avoid further litigation of the issue and to lessen the sting of the final judgment, creditors will sometimes sell the judgment to the third party. This allows the creditor to be paid and also allows the third party to step into the creditor's position. In stepping into the creditor's position, the party does not have to file a new suit against the defendant to recover the funds they paid out. They may simply proceed with an enforcement against the defendant."
--"I had a case involving a bad injury. As often occurred in a construction or product liability cases, the real culprit was the employer - my client. The defendant filed a third-party action against my client and say: 'That's the guy you really want to hit with a whopping verdict.'
"Negotiations went no where. The direct defendant had no interest in contributing anything. Plaintiff's counsel had unshakable confidence that the defendant would help direct the jury's attention to my exceptionally culpable client. I suggested we should dismiss the third-party action. Appropriate measures were taken to protect the defendant from an unlikely verdict exceeding coverage limits. The third-party action against the heinous employer was dismissed, and suddenly I had a new client with really good liability defenses. That case was way less costly to settle."
--"I live out of state. I think mediation is the best. I was laying on my raft and talking to an adjuster in Chicago when there was a snow storm. He made me an offer and I answered that he should repeat it because my waterfall was making noise. He started screaming and swearing. Then we settled. My recommendation is to be friendly with adjusters."
K. I Did Not Make This One Up (but I would have if necessary)
--"We had you as our mediator, can you use that?"
Dept. of Clarifications: Bob Baizer was the first to point out that it was not Vito but Michael Corleone who eliminated the rival families in The Godfather. We stand corrected.
"We went back and forth for several court appearances, eating up attorney's fees on unbelievable silliness. We had Judge X, who was an old character even then, in the 90s. He told the attorneys to come up with an agreement on the amount of ashes each party received.
"We began negotiations. The other who wanted six tablespoons of ashes whereas my client was offering less, one teaspoon. We even had a discussion where no one believed my culinary knowledge that a tablespoon was a 3:1 ratio to tablespoons. The other attorney said it was four to one while Judge X said it was 2 to 1. I actually took a break from court, wet to the payphone in the hall and called my mother, who was a superb cook and confirmed the 3:1 ratio. I informed the court. I even billed the file .1 hour talking to my mom. What Jewish attorney can beat that!?
"Ultimately, once we got the ratios correct, we got down to 2 teaspoons offered by my client to 2 tablespoons (6 teaspoons) the other side wanted. There is an order circa the late 90s that I entered giving the other 2 sisters 4 teaspoons of the mother's ashes. I wish I'd scanned that, but alas, there were no scanners in those days and I tossed it long ago."
B. Good Advice We Just Don't Take
--"My mentors and very well-respected trial attorneys always told me to 'prepare the case for trial and it will settle.' Especially lately, I have found that preparing the case at the onset for trial paves the way to successful settlement results."
--"Tell the other side you are going to trial tomorrow."
C. Just Plain Good Advice
--"High low agreements with one party that include priority of execution term can work well."
--"We have found that in medical malpractice cases, frequently the individual physician(s) does not want to consent to settle but the organization wants to. We have found that offering to dismiss the individual physician if a settlement is reached and confirmed between the plaintiff and the defendant organization, has been very helpful in getting medical malpractice cases resolved."
D. Go Through the Gut
=="If you do not let the parties adjourn for dinner and work through the issues to agreement, hunger will compel a settlement."
E. Come Prepared. Come Very Prepared.
--"Defendant took out how own wallet and paid 1k of his own money."
F. And Then There's Just Doing It Right
--"I have found that a correct statement of the facts (including major contested facts) goes a long way to starting a good mediation. When I see attorneys making statements about the case that misrepresent the evidence, it is a sign to me that they are not at the mediation in good faith.
"This tactical error is sometimes made because the person at the negotiation does not know the facts of the case, yet may be there in good faith. If I determine that he or she has authority to talk, but does not know the case, I try to straighten him/her out."
G. Or Maybe, Just Not Doing It Wrong
--"Recently I presented to plaintiff's counsel, a video of his client doing a cannonball into a pool and a photo of him on a rollercoaster - this was all taken from his Facebook account....so we did get a better settlement using his social media page and both these were dated after our accident - it's always in our best interest to check plaintiff's social media accounts. I also was dealing with an attorney who stated his client couldn't work or stand for long periods of time, sure enough, I checked her Facebook page and there she was making and selling handmade soaps on her Facebook page. Once I told her attorney this information, we settled it for much lower than the attorney wanted."
H. A Respected Judge Says
--"For lay plaintiffs, especially those with civil rights types of cases with appointed counsel, it is sometimes a good time to make another run at a settlement after the jury is picked. A plaintiff who has lived with his case for a long time may realize that 8-12 strangers who know nothing about the case will be deciding the case. The bird in the hand may suddenly look better than the risk."
I. Walking the Walk
--"On a suicide case, one of the defendants offered to name a room (meeting room) in the hospital after the patient who committed suicide. Also, there were discussions about donating money to the patient's suicide prevention awareness charity."
--"I actually did an honorarium for the decedent. We set up a yearly award for a nurse to go to specialized training in honor of the patient who died. The family was pretty happy."
--"Many years ago, I had a case involving two extremely wealthy business partners. The relationship had soured to a point of no return. Their funds were seemingly unlimited. The way I settled the case was as follows: One of the individuals donated a large sum of money in honor of the other individual to the donee's favorite charity. Of course the donor received a large tax deduction and the donee received an honor and a great deal of satisfaction. In any event, it worked."
J. Not For Everyone
--"In judgment enforcement there are times when third party respondents (employers, garnishees or citation respondents) fail to follow the law after repeated attempts to have them respond to court process. Their failure to respond then leads to a final judgment against them as a sanction for their lack of response. The final judgment against them is for all sums due the creditor. Although the third party may seek to vacate the final judgment, it may be expensive with no guaranty of result. To avoid further litigation of the issue and to lessen the sting of the final judgment, creditors will sometimes sell the judgment to the third party. This allows the creditor to be paid and also allows the third party to step into the creditor's position. In stepping into the creditor's position, the party does not have to file a new suit against the defendant to recover the funds they paid out. They may simply proceed with an enforcement against the defendant."
--"I had a case involving a bad injury. As often occurred in a construction or product liability cases, the real culprit was the employer - my client. The defendant filed a third-party action against my client and say: 'That's the guy you really want to hit with a whopping verdict.'
"Negotiations went no where. The direct defendant had no interest in contributing anything. Plaintiff's counsel had unshakable confidence that the defendant would help direct the jury's attention to my exceptionally culpable client. I suggested we should dismiss the third-party action. Appropriate measures were taken to protect the defendant from an unlikely verdict exceeding coverage limits. The third-party action against the heinous employer was dismissed, and suddenly I had a new client with really good liability defenses. That case was way less costly to settle."
--"I live out of state. I think mediation is the best. I was laying on my raft and talking to an adjuster in Chicago when there was a snow storm. He made me an offer and I answered that he should repeat it because my waterfall was making noise. He started screaming and swearing. Then we settled. My recommendation is to be friendly with adjusters."
K. I Did Not Make This One Up (but I would have if necessary)
--"We had you as our mediator, can you use that?"
Dept. of Clarifications: Bob Baizer was the first to point out that it was not Vito but Michael Corleone who eliminated the rival families in The Godfather. We stand corrected.