Teddy Snyder

Tag: Litigation Management

  • New Rules Of Professional Conduct For California Lawyers

                                                     New Considerations in Settlement and Case Management 

    The California Supreme Court has approved new rules of professional conduct for attorneys licensed in California which go into effect November 1, 2018. These rules generally expand the existing settlement ethics rules. Violation of the rules can lead to a range of disciplinary actions, including disbarment. Here are the ones which affect people trying to settle a case.

    Client Communication
    Prior Rule 3-500 in a single sentence required lawyers to keep clients reasonably informed about significant developments. New Rule 1.4 is more detailed. Now there’s a two-way street: the lawyer must reasonably consult with the client about how to achieve the client’s goals. What’s more, the lawyer must also inform the client about what the lawyer cannot legally or ethically do even if it’s what the client expects.

    Prior Rule 3-510 required lawyers to promptly communicate the specifics of a written settlement offer. A California lawyer need only pass along a spoken settlement offer if the lawyer deems the offer significant. New Rule 1.4.1 preserves this distinction.

    In evaluating settlement offers or making other decisions about the representation, the Comment to new Rule 2.1 clarifies that a lawyer can initiate advice to a client on relevant, non-legal issues, such as moral, economic, social and political factors.

    Diligence
    Prior Rule 3-110 defined “competence” as including diligence. Now a separate Rule 1.3 prohibits a lawyer from “intentionally, repeatedly, recklessly or with gross negligence” failing to act with reasonable diligence.

    New Rule 3.2 says “a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” Now an ethical rule may apply to needless court appearances and continuances and improperly postponed treatment.

    Truthfulness
    New Rule 4.1 prohibits lawyers from knowingly making a false statement of material fact or law to a third person, i.e., someone who is not a client, such as an opposing party or witness. A lawyer cannot knowingly incorporate or affirm the truth of someone else’s false statement. A nondisclosure is the equivalent of a lie if the lawyer makes a partially true but misleading material statement or omission. On the other hand, the Comment to the Rule clarifies that there is no affirmative duty to inform an opponent of relevant facts. Representations about case value are not statements of fact or law.California Business and Professions Code sec. 6068(d) requires lawyers to represent clients with methods which are “consistent with truth.” A lawyer who intentionally deceives the court or any party can be charged with a misdemeanor. This statute remains in effect.Everybody Who Acts For the Firm
    Prior Rule 3-110 included within the duty of competence a duty to properly supervise lawyers and non-attorneys or agents. New rules 5.1, 5.2, and 5.3 expand on that and provide for vicarious liability for a breach. A subordinate lawyer has an independent duty to follow the rules, but is not responsible for following instructions when there is an arguable question of professional duty.

     

  • 3 Ways to Evaluate Future Medical Care

    Evaluating future medical care is usually the most challenging component for parties trying to settle a workers compensation claim by Compromise & Release. If your crystal ball is in the shop for repairs, try one of these methods.

    Medicare Set-Aside
    You don’t need a Medicare Set-Aside for claims outside the review thresholds, but claims professionals often order one to get the medical expense analysis. If the report’s only use will be for internal purposes, there is no requirement to share it. If you disagree with a report, you can provide further information to the provider and request revision. Or you can order another report from a different provider. Applicant’s counsel can request the claim professional order an MSA.

    Don’t forget that the Medicare Set-Aside amount does not include amounts for co-pays, deductibles, or non-Medicare-eligible expenses.

     

     

    Historic Expenses
    Don’t be shy about requesting a copy of the print-out of expenditures. Spending some time with the medical expense print-out can be revealing. Total the expenses for the last two or three years and divide by the number of months being reviewed to obtain the average monthly expenditure. You can include claim administration expenses to show what the employer has been spending or omit those expenses to better reflect the actual expenses likely to be incurred post-settlement.

    Review the expenses to see if some items are atypical. Is there a major surgery which will not recur? Has the injured worker stopped taking expensive opioids? Omit those items from your calculation, but include the expense for substitute treatments or medications. Conversely, if credible medical reports indicate a future large expense, the evaluation can be increased.

    Revisions are not usually a problem because it’s easy to omit a past surgery from the historic total or to change the time period under review. One-time future large expenses can be added as a lump sum.

    Once you have determined the average monthly medical expense, your structured settlement broker can quickly calculate the present value of future lifetime care, including an inflation factor to account for rising prices. This figure can purchase monthly payments to be paid to the injured worker or a medical expense account. The broker’s services are free, but be sure to keep that broker in the loop for future settlement discussions.

     

     

    Health Insurance Premiums
    Many injured workers can get health insurance for their medical expenses after workers compensation coverage stops. Some may already have that insurance. Injured workers who lack health insurance should check with a health insurance agent or www.coveredca.gov to determine their access to an appropriate policy and the cost.

    Once you know the premium amount, add in a generous inflation factor plus an allowance for any co-pays and deductibles. Again, your structured settlement broker can calculate a present value, and, voilá!, you have your medical expense evaluation.

     

     

    No Claim Too Difficult
    Every claim can be evaluated and settled. It’s only a question of how to calculate the settlement components. Whether the disagreement is about DOI, AWW, underpayments, overpayments, scope of the industrial injury, or the cost of future medical care, we can figure it out together in mediation.

  • Mediate to Comply with this Regulation

    Ready to file that DOR?  Not so fast. If you can’t show you tried to settle, you may be wasting everyone’s time.
    Mediation Shows Readiness
    8 CCR §10414(d) requires that “All declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declaration of readiness to proceed, and shall state with specificity the same on the declaration of readiness to proceed…. [emphasis added]”The way to show a genuine, good faith effort at resolution is to mediate the disputed issues.   Here’s how you meet the regulation’s requirement to state with specificity:”The parties attempted to resolve the described dispute through mediation with mediator Teddy Snyder on [date].”

    How often will you need this language? Almost never. The reason is that once parties mediate their dispute, more often than not they resolve it.

    Convening
    Convening, the process of getting everyone to agree to a time and place to mediate, can be the trickiest part. Some practitioners remain unfamiliar with mediation. They may confuse it with arbitration. We are all afraid to try new things, sometimes even when clients tell us to. You need to communicate your readiness to resolve the issues in a setting where those issues can be fully explored and the parties are in control of the outcome. Mediating is the win-win choice.

    Convening is best done by the attorneys, though the mediator can assist. If you are still trying to get the other attorney’s attention, you may indeed have to file that DOR. Once you get a response, even if it takes going to the Board, immediately suggest mediation as a way to cut to the chase, resolve the issues and avoid future unnecessary Board appearances.

  • Counting Our Blessings

    Particularly at holiday time, many of us consciously count our blessings. I recently participated in a study group that looked at the question, “What is a blessing?” For me, the all-encompassing blessing is safety and security. You could call it “peace.” That includes being grateful that I have not suffered a disabling injury or illness.
     
    The Blessing Of Peace
    Perhaps the most familiar biblical reference to blessing is the priestly benediction in Numbers 6:24-26:
    “The Lord bless you and keep you;
    The Lord make His face shine upon you, And be gracious to you;
    The Lord lift up His countenance upon you, And give you peace.”
    Our group looked at a few sources, including Genesis 12:2 where G-d tells Abraham, “You shall be a blessing.” The conclusion we finally reached was that being a blessing is not about asking for stuff; it’s what you do for other people. Being a blessing to others can bring peace to them and to you.
    Mediation Brings Peace
    Many of us spend our days confronting conflicts and trying to resolve them. Controlling the conflict in our lives is a way to achieve peace for ourselves and others. Some mediation participants will actually say they are buying their peace. Unlike in a court proceeding, the parties are in control in mediation. Mediation can get people to resolution quicker.
    I am grateful I can help bring peace to mediation participants. Try thinking about techniques to bring more peace (closure) to what we do. You shall be a blessing.

     

  • Don’t Get Hangry

    Hungry negotiators are bad negotiators. The term “hangry” arose because hunger actually makes people angry, hence “hangry.”

    If the mediator provides you with a sandwich menu to order food, it’s not just a courtesy. Nourishment keeps people focused on the mediation instead of their tummies. Take advantage of that menu to keep up your blood sugar. If you are released for lunch while the mediator is caucusing in the other room, go get some lunch. Don’t be shy about brown-bagging or bringing snacks for everyone on your team to save time and money.

    For some reason, negotiators seem loath to take meal breaks. On one occasion, the injured worker let everyone know he was hangry. He became visibly agitated and wanted to terminate the mediation early, even though negotiations were progressing. Now I bring nutrition bars to mediations to mitigate the problem. But why have a problem at all? Go ahead and eat.

  • Why An Injured Worker Is Like Aaron Burr

    Hamilton, the ground-breaking musical about colonial forefathers, is finally coming to Los Angeles in August. But maybe you’ve been experiencing a version of that story. Like Aaron Burr, injured workers want to be in the room where it happens [sorry if you encounter an ad at this link]. Instead, they are frequently shut out of discussions and proceedings about their claim.
     
    Ignorance breeds resentment
    Go to any WCAB location and you will see a waiting room full of injured workers. Many more injured workers with claims on the calendar are not in attendance. Settlement discussions may occur in courtrooms, cafeterias and even hallways. Injured workers are usually not included in these discussions.

    No injured worker should waste time traveling to a Board when nothing will happen. On the other hand, injured workers want to sit in on their attorney’s negotiations. If the injured worker is already at the Board, shutting out that person can foster mistrust.

    The Best Place for Settlement Discussions
    Mediation provides a forum for the injured worker to listen and participate. Including the injured worker conveys respect and can avoid a problem later.

    Likewise, the presence of a representative from the employer’s side shows a seriousness of purpose. That representative will get a better picture of the negotiation by being in the room where it happens.

    Regardless of which side an attorney represents, counsel will want to prepare the client for mediation. That includes a preview of how mediation works. Counsel may want to coach clients to be temperate in their comments. In joint session or when the mediator is present, client or counsel can ask for time for a private discussion with each other at any point.
    Multiple Rooms
    Typically there are at least two rooms where it happens, because each side is in its own caucus. As mediator, I shuttle between the rooms to speak with lawyers and their clients. Sometimes I speak only with the attorneys (often in the hall), and attorneys can request to speak privately with the mediator or with the mediator and opposing counsel. When counsel returns to caucus, the client can provide immediate feedback—assuming the client is in the room where it happens.

  • Stop Hiding The Ball: What You Need To Tell The Other Side

    Your best friend in negotiation can be your opponent—provided you put your report where your mouth is. Too often parties withhold evidence which would support their position. Sure, your opponent’s initial reaction may be to denigrate your evidence. But they may not have anything to refute it. It might even be too late for them to try to work up something.
    Help Your Opponent Convince Their Client
    So why did it take so long to get to this point? Because you have been hiding the ball. If you expect large sums for a life pension or for treatment the carrier had denied plus penalties plus fees, be prepared to show why the employer was wrong. You can’t expect opposing counsel to advise their client to change their case evaluation if you’ve been keeping secret the reports that crush their position. Of course, timing is important. There are many reasons why you might not want to show your hand too early. But by the time you are at the mediation table, you must be prepared to put your cards on the table.

    How Mediation Confidentiality Helps
    Perhaps you have a sub rosa video or some other smoking gun the other side doesn’t know about. Your mediation brief can be confidential– for the mediator’s eyes only. When you are in caucus (a private meeting with the mediator,) you can discuss secret information with the mediator. If you don’t want it disclosed to the other side, it goes no further. But putting the mediator in the picture allows her to frame the issues in the case to maximize the potential for settlement.

    Negotiations succeed when parties are in the same ballpark. If you don’t communicate what your ballpark is, your opponent will assume that their evaluation is the correct one. It’s hard to play in the same game when one of you is at Dodger Stadium in L.A. and the other is at Angel Stadium in Anaheim. To bring everyone to the same field, you have to communicate.

    America Runs On . . .

    You’ve probably seen the ad:

    Courtrooms– even WCAB courtrooms– run on evidence. It’s your job to make sure you have evidence to support your view of the case.

    The advice to communicate your evidence so your opponent can help you “sell” your position assumes you’ve done everything necessary to gather that evidence.  That could mean obtaining a narrative medical or vocational report or ordering a Medicare Set-Aside allocation report.

    Mediations are efficient and successful when everyone comes prepared with information to support their demand or offer.

  • The Elephant in the Mediation Conference Room

    Sometimes the issues the lawyers and adjusters are discussing are not what is most important to the Applicant.

    Recently, in a pretty small case, the professionals told me the disagreements were about what had been paid and what was still due. The injured worker told me his biggest concern was that, although he had returned to modified duty, the employer had told him there was no more work for someone with his disability. The injured worker was terrified that he would be out of a job with no ability to get another one, but that is not what the lawyers were discussing.

    Many times, the injured worker’s biggest issue is not one that is dispositive of any issue in the case, but, in fact, is the driver for the injured worker’s decisions– the proverbial elephant in the room the negotiators are trying to ignore.

    Because these are often personal matters, the injured worker may not share these concerns with the employer’s side– or even the injured worker’s own lawyer.

    • The woman with a sick teen-aged son who desperately wanted to control her own industrial medical care, but was afraid that if she C&R’d her case, the lump sum payment would result in the family’s loss of Medi-Cal which provided care for the son.
    • The man suffering from non-industrial cancer whose biggest concern was leaving an estate to support his wife.
    • The injured worker who wanted to return to his home country, but feared that expressing that desire would diminish the value of the claim.

    These issues can often be discovered and resolved through mediation. Parties can express their concerns to the mediator confidentially. Once the mediator knows the real issue, the mediator can often re-frame the issues to allow the parties to reach resolution– all without breaching confidentiality.

  • How Minimum Wage Laws Affect Indemnity Payments

    SAWW is going up. The California State Average Weekly Wage determines the annual adjustment of the minimum and maximum payments to persons receiving temporary disability benefits per Labor Code 4453(a)(10). The State Average Weekly Wage also determines the adjustment to payments to persons receiving a life pension or total permanent disability indemnity per Labor Code 4659(c).

    In June, the Department of Industrial Relations Division of Workers Compensation announced an increase for payments starting January 1, 2017. The minimum TTD rate will increase from $169.26 to $175.88 and the maximum TTD rate will increase from $1,128.43 to $1,172.57 per week.

    In a separate development, a new rule gradually raising the minimum hourly wage to $15 by January 1, 2023 was signed into law in April. A rising minimum hourly rate will increase the State Average Weekly Wage over the next seven years and in consequence some workers compensation indemnity benefits.But there’s a safety valve. After January 1, 2017, the governor can delay any scheduled increase for one year if certain economic or budget conditions exist. The economy has been expanding. Some experts predict a collapse.

    Effect on Settlements
    When evaluating claims for settlement, parties may have to consider how the expected SAWW increases will affect the value of future indemnity benefits. The minimum hourly wage increases are small, 50 cents the first two years and a dollar a year thereafter. Is this enough to affect the historic rate of increase we have seen for life pensions? Claims subject to minimum and maximum TD increases are most likely to be affected. An across-the-board increase in claim value will also increase attorney compensation.

    Predicting is hard.  Settling sooner rather than later avoids uncertainty.