Plaintiff's Trial Preparation. What happens if the offer is too low?

Transcription

1 Plaintiff's Trial Preparation What happens if the offer is too low? James W. Balmer Falsani, Balmer, Peterson, Quinn & Beyer 1200 ALWORTH BUILDING DULUTH, MN (218) Tel 1

2 Since 1973, Jim Balmer has represented thousands of people in all kinds of litigation, including jury trials, workers compensation trials and hearings, social security disability hearings, and appeals in those areas. He has handled car crash, slip-and-fall, work site injuries, defective product claims, dog attack, liquor liability claims and other kinds of bodily injury matters. Jim has lectured at various seminars, primarily in the areas of trial tactics and workers compensation issues. Jim is admitted to practice before all Minnesota and Wisconsin courts, both state and Federal, and has tried cases throughout both states. He has argued cases before the Seventh United States Circuit Court of Appeals in Chicago and the Eighth United States Circuit Court of Appeals, headquartered in St. Louis. Jim is listed in the most-prestigious Best Lawyers in America as a personal injury specialist representing both plaintiffs and defendants (the only lawyer to be so recognized in this part of Minnesota). In August, 2016, he was named Duluth Plaintiff s Lawyer of the Year by Best Lawyers, a designation bestowed on only one lawyer from Duluth area annually that recognizes unusual skill and competence in the field. Martindale-Hubbell, our nation s leading legal services directory, has rated Jim s legal ability/ethical standard at the top ( AV ). Jim as been selected as a Minnesota Super Lawyer in both personal injury and workers compensation and has been listed as a Leading American Attorney during the same time period. He has had the additional distinction of being designated a Top 40 Super Lawyer in both areas at various times, as well. Jim has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy since 1986 and by the Minnesota State Bar Association since 1989, the first year it began certifying trial specialists. Wisconsin does not have a system of trial specialist certification. He has been honored as an Advocate by the American Board of Trial Advocacy since

3 Jim was named the 2010 Volunteer Attorney of the Year for the Sixth Judicial District by the Volunteer Attorney Program. The award recognizes the lawyer who has given most generously of his or her time and talents to provide free legal help to lower income residents of Northeastern Minnesota. Sailing, jogging and downhill skiing are Jim s favorite recreational pursuits. He is active in his local Roman Catholic parish. Jim currently serves as the vice president on the Animal Allies Humane Society board and also serves on the Duluth Bethel Society board. Current Employment Position Founding Partner Areas Of Practice Personal Injury Workers Compensation Certifications/Specialties Civil Trial Specialist (National Board of Trial Advocacy and Minnesota State Bar Association) Bar Admissions Minnesota, 1973 U.S. District Court District of Minnesota, 1974 U.S. Court of Appeals 8th Circuit, 1985 Wisconsin, 1984 U.S. District Court Western District of Wisconsin, 1985 U.S. District Court Eastern District of Wisconsin, 2008 U.S District Court of Appeals 7th Circuit, 1986 Education University of Minnesota Law School, Minneapolis, Minnesota, 1973 J.D. University of Minnesota-Duluth, Duluth, Minnesota, 1970 B.A. Professional Associations and Memberships The Best Lawyers in America, 2005 Present Minnesota Association for Justice (MAJ), Board of Governors Duluth Trial Lawyers Association (DTLA), President Minnesota State Bar Association (MSBA) 11th District Bar Association State Bar of Wisconsin Douglas County Bar Association American Board of Trial Advocates 3

4 TABLE of CONTENTS INTRODUCTION...6 You can never be certain your claim will settle, but KNOW you will go to trial if it doesn t the logical conclusion is that trial preparation is essential....6 Beginning with initial client contact, everything you do with the claim needs to assume trial of the action will take place....7 Moving quickly towards trial spares your client unnecessary anxiety while convincing defendants there will be a trial absent a serious effort to resolve the claim....8 INVESTIGATION...10 Getting a crash reconstructionist to the crash scene will preserve evidence and aid building an impregnable liability claim Interviewing witnesses is relatively inexpensive and can preserve evidence that might otherwise vanish with time Legal research on evidentiary issues and jury instructions should begin with initial client contact use a generic trial brief as a guide COMMENCE LEGAL ACTION SOONER, NOT LATER...13 Forum selection is plaintiff s best opportunity to gain advantage over defendant by enabling better selection of judge, jury or both...13 More jurisdictions use expedited dispute resolution that effectively increases pressure on defendants to settle once suit has been commenced...13 Employ only the discovery essential to learning which parties are proper and what defenses they will use at trial

5 TABLE of CONTENTS (continued) MEDIATION IS NOT AN OPPORTUNITY TO BEG...15 Most insurers use settlement discussions to assess plaintiff s desire to settle...15 The more forthcoming with evidence the plaintiff is at mediation, the less opportunity for success at trial there will be...16 Do not mediate while summary judgment is pending...16 ONCE A TRIAL DATE IS SELECTED BY THE COURT, REFUSE TO CONTINUE THE CASE...17 Approaching trial increases pressure on the parties to settle...17 Insisting on the original trial date makes trial preparation easier...17 Schedule all expert depositions to occur as close as possible to the trial date...17 Producing your motions in limine and trial brief as part of your mediation submission increases the likelihood of settlement at an acceptable amount...17 DISCLAIMER The following materials and accompanying Access MCLE audio CLE program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an as-is basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author s absolute and unqualified disclaimer of liability. 5

6 INTRODUCTION These materials and my presentation are the distillation of 43 years of trying bodily injury claims of all kinds in courtrooms in Minnesota and Wisconsin, some won and some lost; as well as settling many more over that same period of time. They describe how I manage cases coming into my practice at this point. You can never be certain your claim will settle, but KNOW you will go to trial if it doesn t the logical conclusion is that trial preparation is essential. 1. Whether a claim settles short of trial is ultimately up to the client and the claims representative, two individuals the lawyer cannot completely control. Most of us are able to control most of our clients through the manner in which we dispense our assessment of the situation and our advice in light of it. But, some clients refuse to follow our advice at critical moments during the claim s management; sometimes, at the point where that control is needed most. One factor that will convince them to cooperate with the advice we give is their satisfaction that we have fully prepared the matter for trial, if necessary. The claims representative for the liability insurer takes instructions from the employer and is compelled to follow the internal procedures of the insurer, regardless of what the claimant s attorney says or does. The more experienced the claims representative, the more likely that representative will listen to us at the critical moments in the life of the claim. One way to get the matter to a more experienced claims representative is to institute suit. Besides, institution of suit results in appointment of defense counsel with whom to work and communicate, resulting in better communication and frequently a more realistic assessment of the claim s value. 6

7 If we succumb to the entreaties of the claims representative to make a demand early in the claim, then the insurer may set a reserve that is too low to resolve the claim later, when the full extent of the harm to our client has been learned. Instituting legal action early, before making a demand unsupported by full knowledge of all the circumstances of the client s injury, makes establishing a low reserve less likely. 2. All clients need to be evaluated as potential trial witnesses. This evaluation actually has two facets: their credibility and their willingness to proceed to trial if necessary. Taking the latter factor first, if your client is unwilling to go to trial if necessary, perhaps the client has not fully thought through the real extent of the injury or the manner in which it occurred. If your client doesn t make a credible witness, you should reconsider handling the claim in the first place. 3. Learn whether potential client already gave a potentially-damaging recorded interview to the claims representative. If not, the client will probably conclude it is time to retain counsel. If so, you need to obtain a full transcript, then look for ways to exclude it from evidence. Minnesota has a statute invalidating recorded interviews with the injured within 30 days of the occurrence. Minn. Stats. Sec It is also possible the interview violated the claimant s self-incrimination privilege. Beginning with initial client contact, everything you do with the claim needs to assume trial of the action will take place. 1. Clients who expect a trial make better clients. Already noted is their likely higher credibility. Additionally, they will expect a trial and so will do what is needed to properly prepare for trial regarding medical treatment, deposition 7

8 preparation and preparation for the adverse medical examinations. If you are also preparing for trial, they are more likely to trust your advice because you are doing what is expected of you. 2. Counsel who manage the claim on the assumption trial will occur can expect larger settlement offers from insurers. Most lawyers handling injury claims are loathe to go to trial due to cost and uncertainty of outcome, among other reasons. Any lawyer who actively prepares for trial is taken as a more serious threat by the insurer. A settlement proposal made by such a lawyer is taken more seriously, so a miscalculation by the insurer is less likely. Much, though not all, trial preparation can also be used to prepare for the settlement negotiation that usually occurs closer to the trial date so it makes a more convincing settlement position during negotiations. If we have been acting as though we will try the case throughout preparation, the insurer will begin to believe we will actually try the claim to conclusion unless we are offered enough to settle. 3. Counsel who are fully prepared for trial have a better shot at winning the trial, if there is one. If there is no settlement, then being fully prepared feels better than having to begin trial lacking proof of critical elements of your claim. Sometimes, the insurer unexpected undervalues the claim. Sometimes, our clients refuse to listen to us at the most critical juncture of the pretrial preparation. At such times, being fully prepared for trial is essential. Moving quickly towards trial spares your client unnecessary anxiety while convincing defendants there will be a trial absent a serious effort to resolve the claim. 1. The longer a claim s resolution takes, the more likely your client is going to accept a lower amount to settle delay favors defendants. 8

9 No insurance defense attorney I know has ever denied the value of the lapse of time. Waiting for trial builds frustration in Plaintiffs, especially if we do nothing to push the case towards trial. Frustration can be an impediment to settling for a reasonable amount. 2. The longer a claim s resolution takes, the more anxious your client becomes, consequently the more difficult to manage whether for settlement or trial. If the client grows more anxious, the risk of taking any amount offered to be done with the claim rises. The anxious client begins to lose confidence in his/her lawyer. Such anxiety can prevent us from obtaining the best result for the client, later to be blamed for the poor outcome. 3. Moving decisively towards trial convinces the claims representative to extend the best offer before settlement is beyond reach. Pushing the case towards a trial date reassures the client that his/her lawyer is unafraid of trial. It also convinces the claims representative that Plaintiff will really try the case absent the best offer, sometimes prompting the claims representative to extend that offer before pretrial preparation expenses make the offer impossible to accept. 4. The lawyer can save time in trial preparation by standardizing trial preparation and obtaining assistance from non-lawyer staff. Use of generic motions in limine and generic briefs supporting them is increasingly common among insurance defense counsel. We should adopt a similar practice. Paralegals can line up and subpoena fact witnesses; arrange for testimonial video depositions without close supervision; can locate and arrange material useful to cross-examine adverse medical examiners; can create helpful visual exhibits for use at trial and even prepare initial drafts of motions in limine, trial briefs and jury instructions. 9

10 INVESTIGATION Getting a crash reconstructionist to the crash scene will preserve evidence and aid building an impregnable liability claim. 1. If he is properly certified in motor vehicle crash reconstruction, he could do a download of the EDRs from the airbag systems of the involved vehicles. Most motor vehicles on American streets and highways have event data recorders in their passive restraint systems that aid the reconstructionist in calculating the actual speed of the involved vehicles. The typical defendant will exaggerate his speed, even if unintentionally. The EDR will help establish the actual speed of the involved vehicles. Sometimes, this information will remove liability as a defense and may even provide convincing evidence of cause between the collision and the harm sustained by plaintiff. 2. The reconstructionist could use computer-generated animation to create visual displays of the incident to help the jury better understand what defendant did to cause the crash. We all know 21 st Century jurors expect visual depictions of evidence. Computergenerated animation may be essential to the plaintiff s case for that reason alone. But, it can also illustrate for the jury precisely how careless the defendant actually was in bringing about the collision that harmed plaintiff. Interviewing witnesses is relatively inexpensive and can preserve evidence that might otherwise vanish with time. 1. Witnesses recall important details closer in time to the extent they saw texting? Turn signals displayed? The plaintiff has the burden of proof and thus the burden of fully investigating the circumstances of the injury. Most, though not all, independent witnesses are willing to help by 10

11 answering questions about what they saw or heard. The longer the lapse of time between the event and the interview, the less likely they are to volunteer useful information because they will grow less self-assured about what they recall. Interviewing them as soon as possible can create helpful evidence before it disappears. 2. Better to have an independent investigator interview the witnesses and report the results prior to obtaining a verbatim statement. Personally conducting the interviews renders counsel a potential key witness in the case, a disqualifying development. Having an employee conduct the interview may not be much better, if at all. Instead, have an independent investigator locate and interview all potential witnesses. If only the results of the informal interview are reported to counsel, they are arguably work product not liable to disclosure. See Fed. R. Civ. P. 26(b)(3). Once the result of the interview is known, counsel can then determine whether a verbatim recorded statement ought to be obtained to preserve evidence known to the independent witness at the time of the interview. 11

12 Legal research on evidentiary issues and jury instructions should begin with initial client contact use a generic trial brief as a guide (click here). 1. Acquiring an understanding of the legal issues surrounding liability and the admissibility of evidence needed to establish a prima facie case can often help decide whether the claim is worth pursuing. If so, it can help direct initial investigation. 2. Submission of a trial brief along with motions in limine at the final pretrial conference may educate a judge lacking significant civil trial experience. In Minnesota and Wisconsin, most state court judges being appointed are criminal prosecutors or public defenders, considered qualified because the largest portion of their case load will be criminal and juvenile, areas in which they are experienced. The next largest area of responsibility they will have is family law dissolutions and custody. When these judges encounter a civil bodily injury claim, they have trouble understanding the procedural, evidentiary and substantive issues because they are all new. Regardless of their sociopolitical orientation, any such judge will read a trial brief submitted by either party with care in order to inform as fully as possible in a short time. Federal judges spend most of their time on civil matters and so are quite well-informed on these issues, but nevertheless typically insist on trial briefs submitted by all parties in every action by local rule or order. 3. Using a generic trial brief saves time in trial preparation and alerts counsel to potential evidentiary issues often overlooked by defendants. Regardless of whether defendant s attorney submits one, plaintiff s counsel MUST do so. Such a submission can also form a useful basis for mediation. Careful and thoughtful preparation of one from the generic form helps focus thought on the evidence to be submitted by all parties and aids in thinking of ways to exclude the adversaries submissions outright or to neutralize such evidence if it cannot be excluded from the trial. 12

13 COMMENCE LEGAL ACTION SOONER, NOT LATER Forum selection is plaintiff s best opportunity to gain advantage over defendant by enabling better selection of judge, jury or both 1. Jurisdiction a. State court actions give more control over jury selection, USDC actions give judicial officers more familiar with civil disputes b. If the defendant is from a different state than the one in which the claim arose, plaintiff has the option of selecting which state offers a better forum 2. Venue statutes in many states allow the plaintiff to sue at the courthouse closest to where the claim arose, or the one closest to the defendant s residence More jurisdictions use expedited dispute resolution that effectively increases pressure on defendants to settle once suit has been commenced 1. Expedited Litigation Track (ELT) or rocket docket settings The USDC for western Wisconsin had a calendar that brought most civil matters to trial within six months of filing. Next door in Minnesota, the court system adopted an experimental court setting system for simple cases probably worth less than $100,000 modeled after the rocket docket from USDC Western Wisconsin. Such a calendaring system requires energetic and aggressive plaintiff s counsel but usually results in settlements worth more because of the increased pressure on most insurers to settle in order to avoid an early trial date. 2. Magistrate Settlement Conference in US District Court The Minnesota USDC mandates a settlement conference conducted by a US Magistrate Judge in every action after discovery is concluded and prior to trial. All such conferences SHALL be attended by a claims representative vested with full authority to settle the claim in 13

14 full, even if the claims representative(s) are based outside the United States. Most such claims representatives are loathe to leave the courthouse without a deal in their pockets. 3. Arbitration v. Mediation Some parties are willing to submit a dispute to summary jury trial or arbitration as a speedy and inexpensive dispute resolution mechanism. Most will only agree to mediation. Choose your mediator with great care your choice may determine whether the matter settles. Employ only the discovery essential to learning which parties are proper and what defenses they will use at trial 1. Bare-bones interrogatories These will inform you about witnesses and how to locate them. Demanding a written description of defenses rarely yields any information of value, but might provide an opportunity to defendants to refine their version of events that improves their preparation for trial. 2. Short depositions Defendants counsel typically take depositions because their clients require them. Most good lawyers do not need extensive depositions to prepare for trial. We should already know what defendant will probably say at trial. Taking an exhaustive deposition will give defendant a dress rehearsal for trial, enabling the defendant to deal with the natural apprehension about trial more effectively. Thorough depositions also give defendants counsel a better feel for plaintiffs trial plans. 3. Plan deadlines in the pretrial order with expert depositions and requests to admit in mind Many courts regard Rule 36 Requests to Admit as discovery that is subject to the discovery deadline. If the action is significant and local custom calls for discovery of expert 14

15 witness opinions, make certain the discovery deadline does not effectively bar such depositions if you decide you need them. MEDIATION IS NOT AN OPPORTUNITY TO BEG Most insurers use settlement discussions to assess plaintiff s desire to settle 1. Force the claims representative to attend the mediation Already noted above is the US District Court magistrate s settlement conference that must be attended by the insurance claims representative. Most state court judges are happy to excuse the claims representative from attending, though. Doing so removes a strong incentive to the insurer to resolve the claim short of trial. If defendant s counsel has managed to excuse the claims representative s attendance, you should indicate plaintiff will also be available by telephone. Doing so prevents your client s exposure to informal pressure to settle for modest amounts. 2. If you have prepared your client for trial as a default outcome, your client will be better prepared to resist the temptation to settle for less at mediation Clients are usually better prepared emotionally to reject a low settlement demand if they have been prepared to testify at trial and believe their lawyer is also prepared to try the action. Just as insurers will try to discern whether a plaintiff is susceptible to settling for anything to avoid a trial, they will also try to settle with a more determined plaintiff they have found is prepared to try the case if need be. Such a plaintiff is more likely to obtain a higher settlement at mediation. 15

16 The more forthcoming with evidence the plaintiff is at mediation, the less opportunity for success at trial there will be Many lawyers are so anxious to settle to avoid trial that they show everything they have to opposing counsel. Doing so makes obtaining a favorable outcome at trial far less likely. Counsel should not reveal any more information than absolutely necessary until it becomes clear a settlement is likely and the additional information will result in a better settlement result. Do not mediate while summary judgment is pending Summary judgment motions are far more common now than formerly. Typically, defendants make them at the end of discovery, at about the same time mediation is scheduled. Few insurers will extend a serious offer after they have paid their lawyer to make such a motion. Mediation while such a motion is pending is a waste of money and time. Refuse to do it. 16

17 ONCE A TRIAL DATE IS SELECTED BY THE COURT, REFUSE TO CONTINUE THE CASE Approaching trial increases pressure on the parties to settle Whether plaintiff or defendant, any lingering reluctance to agree to settle is eliminated by the presence of the jury panel in the courtroom. Insisting on the original trial date makes trial preparation easier Most plaintiffs depend on expert witness testimony by video deposition, a complicated and expensive proceeding to arrange. Postponement may make resetting impossible. Don t risk it. Schedule all expert depositions to occur as close as possible to the trial date Defendants usually set their expert depositions well in advance of the trial date. If plaintiff sets his/her depositions after defendants experts have already given their depositions, then plaintiff s experts can testify in anticipation of what they know defendants experts will say. Producing your motions in limine and trial brief as part of your mediation submission increases the likelihood of settlement at an acceptable amount Doing so creates the impression in defendant that plaintiff is fully prepared for trial and stands a chance of prevailing. The chance of settlement is increased. 17