IndyBar: Mediation Preparation for Less-Experienced Attorneys in Personal Injury Cases

By Robert A. Smith, Smith Wade LLC

This article first appeared on the Alternative Dispute Resolution Section page. See more at indybar.org/adr.

Preparation for mediation is critical. It is as critical as preparing for a trial. Eighty-five to 90 percent of all civil cases settle at mediation or shortly thereafter and well before a jury trial. Therefore, to approach mediation as something that simply will pass and you do all your preparation for trial is a mistake on behalf of your client.

1. Mediation preparation begins by collecting all of the plaintiff’s medical records and employment records, including not only medical records for the occurrence at issue in litigation but for the preceding four or five years. This must be done before your client is deposed.

2. The next step is to have somebody competent review the medical records and prepare an outline. Many of my medical summary outlines are 30 to 60 pages long and contain a lot of specific detail. The outline should include the three to five years of medical records before the occurrence in question and then the medical treatment from the time of occurrence to the date of preparation. Your client may well be done with treatment at that point in time and therefore there would be a beginning and ending point of treatment.

3. You must prepare for your client’s deposition. Before your client’s deposition, have an honest open-ended discussion with your client about past/pre-existing conditions and current conditions. It is important that you know whether or not doctors and/or medical therapists and/or others in the medical records have indicated the plaintiff has had no complaints at some point in time, that the plaintiff was told to come back for treatment as needed, when that date was and what is your plaintiff saying about his or her condition today. I have had, from the defense standpoint, a great number of times where a plaintiff rambles on about current conditions, when the medical records show that the plaintiff had stopped complaining about those conditions a long time ago, the plaintiff had been told to come back as needed, and the plaintiff had never gone back. Watch out for that set-up if you are representing a plaintiff.

4. Go through the medical outline with your client so your client knows what it says. Make sure your client doesn’t go off on some rambling tangent about all the pain and distress and so forth if it is not supported by the medical records. If the medical records appear to be incomplete or inaccurate at some point in time, or inconsistent with themselves, then prepare carefully for your client’s examination on those issues so your client can politely and directly say, “yes, this condition continues and I am doing home therapy and that helps but I’m not over it yet.” Your client does not need to reference medical records, but just explain his condition that would be consistent with the medical records for your preparation.

5. What if your client does have continuing pain and discomfort even through medical records say that he/she doesn’t? Make sure your client is aware of what those records say and he/she answers only the questions asked in the deposition. But, if still hurting, your client should say so.

6. What should go into the mediation submission? A major consideration is how much you want to put into your mediation submission. I generally do a brief summary of my client’s position if I am a plaintiff and attach the medical summary. It speaks for itself. Then as the mediation unfolds you can discuss in more detail whether there are some modifications to be made to what the medical records say.

7. Should you tell the mediator the good, the bad and the ugly in your mediation submission? I say no. I don’t. The bad and the ugly may not be obvious. I would wait to hear that from the other side.

8. Do you want to have a mediation opening statement, with opposing counsel, and your client and the insurance company? My answer is absolutely every time. I always want to hear what the other side has to say about their part of the case. How are they going to defend it? What are the key issues? I have never done a mediation without an opening statement.

9. What should you cover in the opening statement? Well, for the plaintiff, I am going to cover the very precise exact medical conditions identified in the medical records and perhaps pre-existing conditions, the change in life to the plaintiff and the impact on the plaintiff and his or her family and/or working ability, any impairment rating given by the doctor and/or any identified lingering problems the plaintiff did not have before. I want the opposing side to like my client (hopefully your client came out of the deposition well-liked and impressive to the opposing side) and I want the other side to respect my preparation and skill (hopefully they came out of the deposition with that impression and even though you are relatively inexperienced they were impressed with your preparation and presentation).

10. What your demand letter should be in terms of demands before mediation and have there been efforts made before mediation is an important issue. This is Bob Smith talking now, and I am not going to put down what my strategy is about that, but if anybody wants to call me to discuss a specific case I will be glad to talk to them! (Smiling.)

11. What about medical liens and/or work comp liens or other liens that can be collected against any recovery? There might well be medical liens and/or work comp liens and other liens that may be collectible against the recovery. What should you do about those? Well, you need to know what they are, have the contact name and number of the person who holds them, contact them before the mediation to try to get some sort of settlement compromise worked out, but at least have somebody who will be available the day and the time of mediation to make a decision so if a mediation goes well you can get those liens compromised. At times, a mediator will make the phone calls to the lien holders. But have communication with the lien holders, copies of the actual liens in writing in front of you and a direct phone number of people available that day.

12. How do you assess percent of chances of winning at trial, what impact does that have on your valuation of the case, and what impact does that have on the lien holders payback as you try to push them down and get them to take as little as possible? An answer to that would take another three-page article. This outline is intended to be directed toward cases where liability is not an issue; for example, when someone runs a red light, crosses the center line, rear ends another vehicle and so forth. This article is designed to address fair settlement for a client in a case where liability is clear.

13. Don’t forget: file expenses you have for which you have to be paid back. Before mediation, I sit down with my clients and list the suggested settlement amount, deduct the attorney fees, deduct all the expenses and come up with the dollar amount that would be in your client’s pockets at each assumed number. In other words, what is our target number? I get an idea ahead of time for my client and if we get this number in your pocket would this be acceptable. I do that ahead of mediation. At mediation, I start higher than what it takes to get to that number and for the most part, I have been successful.

14. Do you compromise your attorney’s fees to get a case settled without having to go to trial? I just settled a case where I am defending, and the attorney compromised his attorney fees to get it done. So the answer is yes, some do. That is a judgment call on your part. If that is an issue discuss it with more experienced attorneys and I am sure you will get different answers.

15. Have in mind the actual file expenses and costs of going to trial in one year. This is part of the settlement assessment review mentioned above that you have to undertake with your client. Specifically, if you have to take a doctor’s videotaped deposition — $1,500? $2,000? This includes the cost of the videographer and court reporter and the doctor’s first or second hour of time, demonstrative exhibits, subpoenaing witnesses, a second doctor? And so forth. If you are relatively new at this, you need to get advice from somebody as to what their cost would be.

16. Does your fee go up if you go to trial? Lots of agreements say 25 percent of settlement before filing suit and 33 or 40 percent if it goes to trial (or something like that.) In other words, if it does not settle, your fees may go up. Be sure to take that into account as you are doing estimates of costs against the gross receipts, resulting in the net amount in your pocket.

17. In terms of liens settlements, are you talking about a net net net to the lien holder, or (for example) if there is a $9,000 lien, do you get one-third of that as your attorney’s fee and a lien holder gets 6? Or, do you take your one-third off the gross amount, let’s say $30,000, and then you send the lien holder $6,000? Think about all of that ahead of time so you know your numbers and know what numbers to discuss with your client before you go to mediation.

18. What about confidentiality agreements? I have no opinion either way on confidentiality agreements. If you are representing a plaintiff, you may or may not want one. If you are representing a defendant, they may want one, so I leave that up to the parties and/or other counsel.

19. If you are being asked to sign a settlement agreement with a defendant that has a confidentiality agreement in it, read it carefully and make sure your client understands it. That would be the main point.

20. If it is settled at mediation, when will the settlement checks be processed? Will the settlement checks include the lien holders on the check? Can you make it so that the settlement check is separate to the lien holders and the check to you and client to your trust account is separate without a lien holder’s name on it? These are all things to consider as you are reaching a final agreement at mediation. If this is critical, you need to bring these issues up as you are initially discussing settlement so that things don’t get thrown at you at the end that you didn’t expect.

21. Have you, before and during and after, kept your client fully informed about this process so that when a settlement agreement is reached your client fully understands the reasons why, the expenses involved, the consequences, the chances of success at trial, the significance of waiting a year or so to get money and the uncertainty of a jury verdict?

Often the client is not completely satisfied with the settlement amount, but if they like you personally, they like your skill level, you have taken care of them throughout the process, stayed in regular communication and you have clearly discussed fair numbers ahead of time, then that’s all good. They will have been to the opening statement, they would have heard the opposing counsel’s clear and direct comments about the weakness in your client’s cases, your client would have heard the mediator’s comments about possible problems with the case and hopefully after hearing all of that, your client will be satisfied with the net net net in your client’s pocket. You want your client to go home satisfied and economically healthy and in addition, perhaps they will refer other clients to you. But, the most important thing is that your client has been well taken care of and you have earned your money.•