Teddy Snyder

Author: Teddy Snyder

  • Are You Really Ready for Mediation?

    Make sure these components are in place:

    Who will attend the mediation? This should include the person who holds and can modify the authority. That’s the person holding the purse strings on the defense side and important advisors to the claimant, such as a spouse or adult child.

    Telephone standby is not good enough. The person on standby is not getting the real sense of what is transpiring. Getting an explanation through an attorney filter can result in a distorted message. This is especially true if the attorney is wary of being removed from the case. Remote mediation allows participation regardless of a person’s geographic location and also allows productive use of the inevitable downtime.

    Have you prepared your client/insured? Does that person understand how mediation differs from a court proceeding? Will this participant be comfortable with remote mediation technology? Have you reviewed your strategy and obtained settlement authority?

    Have you thoroughly prepared, preferably by steelmanning?

    Did you submit your mediation brief in plenty of time for the mediator to read and consider the explanation of your position?

    When all the components are in place, you are most likely to achieve the best possible settlement.

  • Get Your Kryptonite Ready

    Most of us have heard of the concept of a strawman argument. Those are the fallacious arguments you can knock over because they distort the premise to make the proponent’s point. A strawman argument might concentrate on something that hasn’t or will never happen or use circular reasoning (our expert is correct because this expert is renown and therefore cannot be wrong.)

    In contrast, steelman arguments present the strongest version of your opponent’s case. It is your job to thoroughly investigate your case so you can learn every one of those arguments and figure out the best way to deal with them. Too often attorney and claims people succumb to confirmation bias where they only look at evidence that supports their own position.

    Steelman – not Strawman
    Whether in negotiation or at trial, in order to get the best result, you must be thoroughly prepared. If you do not take seriously the need for preparation before mediation, you will not be able to settle or to get the best deal. Preparation is not limited to lining up your own arguments. It also includes conceiving your opponent’s strongest arguments and how you will meet them, a technique called steelmanning.Ideally, you would set up a mock negotiation to force yourself to argue your opponent’s position against another person on your team. Another option is to brainstorm all the possible arguments your opponent could come up with and write each possible argument at the top of a separate page. You’re so smart and know your case so well, you are likely to come up with some that the other side didn’t even know they had. Good! Then—rationally—come up with all the arguments against those positions. This might even require >gasp< legal research. Return to your notes and on each page write the details of how to respond to the position outlined at the top of the page. Remember you are preparing a possible response; don’t mention these issues at the actual negotiation if your opponent hasn’t raised them.When you have thoroughly explored all the possible arguments against and in support of your case, you are ready for mediation.

  • A Visit to the Tort Museum

    Did you know there is a tort museum? Located in Winsted, Connecticut, the American Museum of Tort Law has several galleries which educate about precedent-setting cases, including a gallery which focuses on dangerous toys, a product liability issue.

    You don’t have to travel to New England to see the exhibits. The website offers several options for viewing the museum online.

    The Museum’s Founding
    Ralph Nader founded the museum in 2017. Nader first became famous for his ground-breaking expose of manufacturers’ indifference to automobile defects, Unsafe at any Speed.

    Winsted is Nader’s home town. It is also about 25 miles northwest of Hartford, Connecticut, which bills itself as the insurance capital of the world.

  • Aftermath of the Big Verdict

    Decades ago, I worked on a massive product liability case. I was involved on the coverage side rather than the case in chief.

    Defend, No Matter What
    The case was national in scope, with hundreds of claims. The manufacturer was in charge of the defense strategy, which was to not give an inch. Its carrier was concerned about the reasonableness of the skyrocketing defense fees, which it was closely monitoring.

    The manufacturer insisted that the product could not have caused the alleged serious injuries, and it had a bevy of scientific experts to say so. Of course, the plaintiffs’ experts said the opposite.

    The First (and Last) Case
    The first case went to trial in front of a Southern California jury.

    The verdict in favor of the plaintiff exceeded the 2023 equivalent of $8,000,000, eight million dollars.

    After the case ended, the attorneys were allowed to speak with the jurors. “Did you find that the product caused the injury?” they asked. The jurors responded that the expert testimony was conflicting and confusing. One juror explained the verdict: “S/He was just so sick.”

    Given the size of the verdict, the number of pending cases, the liability risk potential, and the prospective defense costs (which the carrier was contesting) including possible appeals, the manufacturer was forced to declare bankruptcy.

    In the Chapter 11 proceeding, a fund was established to provide compensation for claimants. A hierarchy of claims was developed to determine the amount. The process took years.

    The carrier refused to pay the full amount of the defense costs showing that the litigation management was unreasonable. Law firms were not fully compensated.

    The Lesson
    As among the issues of liability, causation, and damages, causation can be the trickiest.

    If a plaintiff, particularly a sympathetic plaintiff, can get in front of a jury, the plaintiff is likely to prevail. In numerous cases, juries have returned large verdicts against a defendant who the jury sees as having deep pockets, even when a shallow-pocket defendant created the primary cause. Jurors often have difficulty following experts’ testimony and may be reluctant to favor one over the other, instead relying on other evidence.

    I have personally tried more than one hundred cases. As a mediator, I have often tried to discuss risk exposure and likely outcomes with the participants. Regrettably, on a couple occasions, intransigent parties have taken the stance: we have a perfect case and will not settle. Then, I later learned they suffered exactly the bad result I had warned about.

    Parties in mediation are in charge of the result. The mediator can only facilitate the negotiation. That includes raising issues and sharing the benefit of their experience. Just because the amount at issue in your case does not approach seven figures doesn’t mean it’s not subject to the same dynamic at trial as experienced by the memorable product liability defendant.

  • Inflation Reduction Act Update

    Will the Inflation Reduction Act affect your settlement? A prior post discussed that possibility. A year later, there are developments

    The First Drug Designation
    The Department of Health and Human Services has named the first ten drugs to be subject to negotiation. The chosen drugs represent about 20% of total Part D annual spending, fifty and a half billion dollars.

    The drugs are principally used for cardiac disease and diabetes as well as the autoimmune diseases psoriasis and Crohn’s disease. These are not conditions caused by run-of-the mill tort or workers compensation cases. They might occur as a result of medical or pharmaceutical malpractice, but that is not something practitioners are likely to see frequently.

    Big Pharma Litigation
    Predictably, passage of the Inflation Reduction Act provoked a rash of lawsuits from drug manufacturers challenging the law. Among others, plaintiffs Pharmaceutical Research and Manufacturers of America, Merck, and Janssen Pharmaceuticals have complained that the law unconstitutionally forces manufacturers to sell their products at below-market prices.

    Briefing is ongoing, and appeals are sure to follow.

    The Conclusion for the Claims Community

    There was a lot of hoopla when this law passed about how it would finally tame the high cost of pharmaceutical drugs. However, the evaluation of cases with significant ongoing drug expense appears to be unaffected, at least for now.

  • When Does Negotiation End?

    More than 95% of all cases settle. Sometimes cases don’t settle at mediation, but shortly thereafter as participants spend more time thinking about their litigation prospects. Unfortunately, there is a number of cases which do not settle until just before trial, at the courthouse steps both figuratively and sometimes literally. You will get the best result when you view negotiation as a continuous process.
     
    Before Litigation
    Some litigation professionals don’t like to “show their hand.”  This can be a mistake.

    For claimants, it’s wise to provide adequate support in your initial demand letter. Claimants who make a demand without adequate backup guarantee themselves a lengthy and expensive litigation. If your opponent sees you as making a mere nuisance claim, they are unlikely to spend enough time working up their case to foster early settlement. If you must file promptly because of an imminent deadline, let the defense know you are still open to early negotiation.

    On the other hand, knee-jerk defense pleadings and motions may unnecessarily waste money by ignoring settlement opportunities.

    During Litigation
    Just because your jurisdiction has a timetable for mediation and settlement conferences doesn’t mean you can’t negotiate settlement at other stages.

    Negotiations are often fruitful while dispositive motions are pending. Don’t just file away discovery responses for review at a later date. Spend time analyzing how they affect case evaluation now. Many cases settle at the conclusion of a deposition. When I was an active litigator, I started trials of some cases which ended up settling before conclusion.

    Immediately after trial, but before the time for post-trial motions and appeals has lapsed, is an excellent time to settle; both sides have solid feedback at this point of how the case plays out. Many appellate courts have mediation programs to allow even the most intransigent parties to come to agreement at this stage.

    If the parties agree, you can convene a mediation in any phase of the claim. It just takes a phone call or an email to get some available time slots with your favorite mediator.

    You’re in a Community
    Practitioners within a practice area run into each other again and again. Your life will be much easier if you can get along with your opposite number. If you act like a jerk, you can’t expect any favors when you are the one in need.

    Keeping in mind that your case is likely to eventually settle, congenially let your opponent know that you are always willing to discuss settlement at any stage of this claim– or the next one. Seen in that light, the negotiation process never ends.

  • Communicate! Why Are Counsel Non-Responsive?

    A recent CLM magazine article listed multiple reasons for claim processing inefficiencies. One was “unresponsive counsel.”

    That got me thinking about why this should be.

    Staff Counsel
    Everyone is on the same team. Staff counsel have no motive to perform work to increase billings. Theoretically, at least, communication between Claims and staff counsel should be seamless.

    Outside Counsel
    Outside counsel who have secured a place on a carrier’s approved panel cannot rest on their laurels. These panels are routinely reviewed. Many carriers maintain departments or hire outside contractors to conduct deep-dive audits of panel counsel performance.

    Panel counsel firms survive on income from their carrier clients. When panel counsel cannot handle the case due to a conflict of interest or geographic issues, outside counsel not on the panel may be appointed. They, too, want to keep getting these assignments.

    So why would they put that at risk by failing to respond to client inquiries?

    CUMIS Counsel
    The insurer has the least amount of control over the activities of outside counsel who was chosen by the insured because of a potential coverage conflict of interest.  It may be difficult to obtain comprehensive reports because of the need to protect the insured’s continuing access to benefits from the insurer’s duty to defend.

    Possible Reasons
    Just as claims reps may be overburdened, so are their counsel. Many attorneys are juggling heavy caseloads that hinder their ability to respond promptly. Sometimes they automate their reporting by repeatedly sending in the same report with hardly any revision. If we’re being honest, let’s admit that some claims reps “check the box” that a report was received without drilling down to see if the case is progressing as it should.

    Rather than creating a litigation plan unique to the case, many insurance defense attorneys defend on autopilot. They send out irrelevant discovery or concentrate on battening down facts when there is a dispositive legal issue applicable to the facts already known. I have also had claims reps tell me that their counsel ignore their directions.

    Believe it or not, another reason may be that internal firm politics are getting in the way of efficient reporting.

    A Solution For Settlement
    We know that approximately 96% of all cases settle. I have reviewed many insurers’ litigation guidelines. Hardly any set rules about when to initiate mediation.

    The earlier parties start talking about mediation, the earlier the case is likely to settle. Revising guidelines to define events, such as deposition of the plaintiff, which trigger evaluation of mediation at this time would be helpful.

    If counsel (and perhaps claims) ignore the litigation guidelines, revision will be of little help. Of course, claims and defense counsel must cooperate to pay attention to their shared goal. Communication among all the players closes cases faster.

  • Be Nice

    Nice guys do not finish last. To the contrary, they are more likely to get a satisfactory result

    Remember Civility?
    I was kind of surprised to learn that a “California style mediation” means going into caucus immediately and staying there until settlement or final impasse. Apparently, in the rest of the country, advocates and parties talk to each other with the direction and help of the mediator. They actually collaborate face-to-face rather than through a mediator filter. Presumably, people are not throwing books on the conference table or stomping out the door. They are actually being >gasp< nice.

    Be Nice in Advance
    One way litigators can help everyone get to settlement faster is through good faith discovery. Don’t ask for overbroad responses. Burdening the opposition only delays the litigation. Don’t copy a bunch of boilerplate objections and not provide meaningful information in your responses. Get it done in time for everyone to have parsed the information in advance of the mediation.

    Actually prepare for the mediation. Every case turns on five or fewer issues. Define them, know what your evidence or the law is that makes yours a winning position. If you can define the pivotal issues, you can cogently present your case. A clear presentation of the groundwork of the case will likely endear you to the mediator.

    Seeing Yourself
    One theory is that negotiators have gotten nicer because of remote mediation. When someone can see himself/herself close up in the camera, that person can see how ugly that temper tantrum really is—not to mention ineffectual. Unfortunately, not everyone has gotten the message.

    What if past dealings block any interest in being nice to your opponent? Here is a trick. Pretend. You don’t have to feel nice—just pretend to be nice. Even if inside, you feel like you want to stab this person.

    Resolve to be nice—even if others are not. It’s the best way to move your case forward.

  • Health Insurance as an Item of Damage

    Future insurance premiums might be a valid component of a settlement evaluation.

    If the claimant must now pay premiums that would not be required “but for” the litigated occurrence, a claimant may present this expense as an item for compensation.

    Considerations include:

    • What did the claimant pay for health insurance prior to the occurrence?
    • Was the health insurance subsidized as an employment benefit which is no longer available?
    • Is the claimant on Medicare before the normal retirement age as a result of the subject occurrence?
    • Will this settlement disqualify the claimant from receiving public benefits?

    The premium is just the starting point. Parties may also calculate deductibles and co-payments, as well as items which may not be within the insurance coverage, such as transportation and home health care.

    The cost of health Insurance will continue to rise. In coming to an appropriate figure, parties may discuss a cost-of-living adjustment versus a reduction of future cost to present value.