Small Widget Spot

July 5, 2018

HEALTH INSURERS THINK THEY HAVE THE UPPER HAND WHEN A CLAIM IS MADE: DO THEY?

HEALTH INSURERS THINK THEY HAVE THE UPPER HAND WHEN A CLAIM IS MADE:  DO THEY?

By:  Guy O. Kornblum, Partner, Kornblum, Cochran, Erickson & Harbison, LLP

Health insurers provide insurance protection for consumers of medical service for their care – who does not fit that description?

So, the question is: what kind of insurance protection do we get when we incur medical bills and claim is submitted to our health insurer?

To answer that question we need to look at how health insurance works.

There are three types of health insurance programs (not including Medicare which is a somewhat different):  individual plans, association group plans (through a common association), and employer sponsored “group” plans.  Each has its own benefits and rules.

The premium charged for health insurance is based on the level of risk the insurer will assume. It must put limits on that coverage, and subject to federal and state laws, it has every right to do so.  So, it is never going to agree to pay what is billed. It claims it needs to provide thresholds before coverage is “triggered” and limits to cap what the insurance company has to pay in benefits. (More on these limitations on coverage below.) Insurance companies claims this is the only way to make health insurance “affordable” (and allow the “for profit” companies to make a profit after commissions are paid to its sales force).

In the group situation, the insured group has some leverage in negotiations only because the premium is usually a good sum of money because a “group” not an individual is insured.  The competition among insurers selling this coverage is fierce and is very price driven. The  way to keep the price competitive is to reduce benefits. Usually, this reduction comes in negotiated:  a) deductibles(an amount which provides the threshold before coverage begins), b) co-pays(a percentage of sharing between the insured person and the insurance company), and c) limitations on the benefits paid once coverage is triggered (i.e. a “cap” on the benefit paid for a particular service).

Competitive pricing is the way the large insurers get their nose under the camel’s tent and maneuver into a position to “sell” their “product” whether to an individual or group — by keeping premiums down. But the only way the carrier can do this is to reduce and limit benefits.

As part of this, health insurers cut “deals” (i.e. reduced payments for services provided) with providers.  In many states, such as California, once the provider accepts the reduced (i.e. “negotiated”) insurance payment, that provider cannot bill the unpaid “balance” to the insured/patient (but the insured still must pay deductibles and co-pays).  In these jurisdictions there is no “balanced billing” – if the provider accepts what the insurance company pays, the bill is satisfied, except, as noted, deductibles and co-pays.

Nonetheless, as a general rule, the insurer has the right to limit its obligation to pay under the terms of its policy.  The medical provider is not a party to this process and has no say in what the insurer agrees to pay in the process of selling health insurance to consumers and groups.

To make it worse:  insurers use what are really “ambiguous” terms such as “reasonable and customary” to limit what they are “obliged” to pay, or they rely on a “Schedule of Benefits” which is a limited sum for a particular service no matter what is billed). Often when the “reasonable and customary” standard is used for payment, the insurance policy provides that the insurance companyhas the RIGHT to determine what is “reasonable and customary”.  Duh!

Who is in control here?  Of course, we know.

In some cases, you can overcome this process by claiming that the contract is “adhesive”, i.e. one sided, and so much so, the court should intervene and interpret the policy in a more favorable way for the patient (i.e. insured).  Sometime this is a very successful approach, but it takes litigation and lots of time.  Meanwhile, the insurer does what it wants to do. It can afford to pay lawyers to guard its coffers.

Some insurers build in a mediation/arbitration provisions in their health insurance policies as a vehicle for short cutting the resolution process to avoid protracted disputes down the line.  In many cases this is a prudent approach.  It is certainly faster and more efficient than full blown litigation which is costly (thus, often not justified) and time consuming.

Whatever the system, it is not always fair. Before taking on an insurance company you must understand the “rules” and the process.

Challenging an insurance company’s conduct can involve the “equalizer” of “bad faith” claims, which means that the insurance company can be responsible for more than just what the policy provides IF it acts “unreasonably” in denying or limiting the claim of a policyholder or insured.  The consequences of “bad faith” conduct add additional sums which the policyholder or insured can recover in cases of wrongful claims handling.

This gives the policyholder/insured a “hammer” IF the insurance company abuses the claims process by violating the basic “good faith” rules or the statutes (e.g. Cal. Ins. Code §790/03(h) – the Unfair Claims Settlement Practices Act) or administrative regulations (10 Cal.Admin. Code §2695.1 et seq.) which supplement the Insurance Code provisions.

The results of “bad faith” can be additional damages awarded an insured who is not treated fairly when making an insurance claim.  This can include damages for the emotional distress of having to fight the insurance company as well as attorneys’ fees in bringing that claim.

As a lawyer, I have spent a career dealing with these issues.  I know firsthand how difficult disputes with insurance companies are, but having said that, challenges should and must be made when insurance companies do not play by the rules they are required to follow.

That is my more than my two cents!

Posted in: Uncategorized
May 26, 2018

Dog Bite Cases Involving Children and Young Adults: The Owner is Strictly Liable for Dog Bites and for the Injuries Caused to the Victim

Dog Bite Cases Involving Children and Young Adults:  The Owner is Strictly Liable for Dog Bites and for the Injuries Caused to the Victim

It is well known that dog bites can cause significant injuries leading to death or long-lasting disability.  In children and young adults being threatened by a dog can have a devastating physical and emotional consequence to them. The experience of being attacked by an animal is sometimes life altering.

The typical dog bite on a child hits them at or above their shoulders. These attacks equate to that of a bear attack on an adult, in terms of the shock, overwhelming fear and residual stress. The emotional impact on the child is huge.. The child will not talk about it and greatly needs to. This is because the child sees the sad faces of his parents anytime the topic comes up. They remain silent to save their parents from additional grief. So the child keeps this emotion load locked up in his mind.  This explains why therapy is needed.  http://www.acepnow.com/article/pstd-children-dog-bites/

Dog bites threaten disease to the victim (e.g. rabies). The fear from that is enough, but the treatment involving shots can be even more emotionally traumatizing. 

Victims are likely to have permanent scarring which will be a visual reminder of this horrific episode, and which will there for that victim’s life. That is these scars will contribute to the emotional pain and psychological response to the fear and anxiety of these events. https://dogbitelaw.com/bodily-and-emotional-injuries-in-dog-bite-cases/emotional-injuries-in-children; https://www.dogexpert.com/dog-bites-posttraumatic-stress-disorder-in-children/

As one author writes:

The emotional reactions of children who are the victims of, or witnesses to, dog attacks include fear, depression, withdrawal and anger.  These problems can occur immediately or sometime after the tragic event.  Many such children will develop post- traumatic stress disorder (“PTSD”) and/or other persistent problems.”

Trauma” includes emotional as well as physical experiences and injuries.  Emotional injuries are essentially a normal response to an extreme event.  Emotional injury involves the creation of emotional memories, which arise through a long lasting effect on structures deep within the brain.  The more direct exposure to the traumatic event, the higher the risk for emotional harm.

The “undifferentiated thinking” of children frequently leads them to derive “wrong” conclusions from traumatic events. A child, especially a very young one, attempts to read the environment in order to enhance his comfort and further survival. A traumatic event like a dog bite is often misunderstood as a statement about life in general, that it is uncertain, painful and precarious. Furthermore, such an event might be internalized as a statement about the child himself, that he is somehow “bad” and even responsible for not only his physical pain but even the emotional pain suffered by his parents as a result of the dog attack. These psychic wounds may become significant determinants of the adult personality, so that the dog attack truly affects the child victim for life.

An animal attack would be a traumatic event in anyone’s life, but young people are most vulnerable simply because they are smaller, most likely in less emotional control of themselves when faced with a crisis, and more likely to suffer a psychological impact afterwards since this is a new experience in their young lives of a potential life threatening event.  In short, they are the most vulnerable victims of such events, which can leave them emotionally injured for life.

Some of the common after effects of an animal attack are:

  • Extreme Fear Toward Dogs
    An attack can turn a dog lover into someone fearful of the canine. This morbid feeling will cause them to feel uncomfortable enjoying the company of the “man’s best friend,” or even with other animals. The horror of the attack may rush back in whenever they are around dogs. Such trauma may affect their quality of life as they grow old, possibly hindering them from doing a variety of things.
  • Long-term Outdoor Anxiety
    Dog bite victims may develop a fear of going outdoors, specifically to the place where the event occurred. Some may find themselves afraid of revisiting the area where they were attacked or bitten. This type of anxiety may limit the places where they can go. Even if the event had happened a long time ago, the painful memories of the incident may have been planted deep within the brain and stay with them for years.
  • Wrong Perception of Self
    Children and very young adults have undifferentiated thinking to analyze things in the environment and make hasty conclusions. It’s possible for youngsters to misinterpret a dog attack and have a wrong perception about themselves. They may feel that they are responsible for their physical injuries and the emotional harm their parents or siblings suffer. A single dog attack can change the lives of children forever.

         In California, owners are strictly liable of injuries suffered by their animals. That is, negligence does not have to be proven.  You own a dog or other animal that attacks someone, the owners is responsible for the physical and emotional injuries caused.  At one time there was a “one bite” rule – allowing a dog to have one bite before there was liability.  No longer. Leash laws were passed to prevent this from occurring and make sure the owner is in control of the dog when in public places.  So owners are wise to keep their animals under control, and avoid the trauma to them of a claim for injuries done by their pet, which usually involves a claim to the owner’s homeowner’s insurance company which can provide coverage for the owner’s liability to the victim.

Posted in: Uncategorized
May 14, 2018

Presenting Expert Testimony Where there are not pictures: Keeping a Jury’s Interest in What the Expert has to say! [1]

Presenting Expert Testimony Where there are not pictures: Keeping a Jury’s Interest in What the Expert has to say! <sup>[1]</sup>

My Views of What We Do.

There is nothing more satisfying than watching a skilled trial lawyer do his work, laying foundations, examining with precision, maintaining control of the forum, carefully laying out his case consistent with his representations in opening statement, earning the respect of the court and jury, and arguing the case

persuasively for a positive result for the client.  It is particularly satisfying if the lawyer achieving all of this is YOU!

Trial work is a grand game of “Mother, May I.”   Done properly, the skilled trial lawyer does his work under the trial judge as conductor and knows the rules and when to ask permission to move about the courtroom so that the evidence, both testimonial and documentary, is developed in a logical, understandable fashion.

“Ladies and Gentlement,  a trial is a “theater of the real”. We are portraying what has taken place and “replaying” a tragic day in the life of my client – a day which my client wishes never happened, but it did. Now we are here to talk about the my client’s claim for compensation for an injury that could have been avoided but resulted from the fault of others, who are now being asked to provide compensation for my client for the losses caused.”

Let me stress: Atrial is not about YOU, it is about your clientand that client’s  case. So the real challenge is how to keep the jury’s interest when the presentation – no matter what you do – can be boring, tedious and most of all, without pictures.  How do you make it interesting so that heads do not bob, juror’s are noticeably restless, and you simply lose their attention.

Here is what I try to do (not always successful but you have to try):

  1. Let the Jury Know in Advance That There Are Some Tedious Parts – Be Frank (but see No. 8).

This is one of those fine lines.  You have to let the jury know there is some areas of expert testimony that is there to educate them on what is important for your case.  My approach is to say that these are likely unique areas to them, and the purpose of the expert is to provide the information they need to decide the case. If there are disputes among the experts, I also alert them to that as well.

  1. Try to Create an Environment that Allows Jurors to Think that They can Learn Something Important From the Expert’s Testimony.

I also let the jury know it is MY job to make sure more complex and detailed (aka “tedious”) areas are explained to them given the Q and A format for a trial, and that I will do my best to allow the expert to “teach” them what they need to know through direct examination.  That is, I try to make this a learningexperience for the jury, and challenge them to be a part of that learning process.

In short, my goal is to make listening to the expert as a teaching experience, like going back to school.

That will pose a challenge for the jurors or at least peak their interest.  “Folks, you will find this very interesting and new. We will all learn together about an area that is unfamiliar, and entirely new to us.

  1. Bring the testimony Home to Something The Jury Can Identify with: Insurance, Taxes, Business Issues They Might Encounter.

A similar approach is to make the subject matter relevant to events in jurors lives. We all purchase insurance, we pay taxes, we have personal/business issues that must be addressed, or employer-employer issues. There are questions in cases involving insurance coverage and claims. If there is an area that touches generally on issues that are relevant to daily living explore such so the juror’s maintain interest.

One of my favorite questions in working up to the issues is:  “How does this [subject matter] work?”  Let the expert give the jury a little capsule summary of what the subject of the testimony is all about.  A jury ”teaching moment” sometimes overcomes complexities and disinterest in the subject.

  1. Use an Expert Who Can Communicate.

The smartest “guy” in the room is not always the best expert witness.  This does not mean that your expert must have “flair” or be right out of central casting, although I have had a few over the years who met that standard.  It makes your (trial) day.

Communication here means doing that in the  courtroom environment so that a court and jury want to listen. They feel the need to learn and understand and the witness must be able to create the environment so that a jury senses that this witness is important and can tell us what we need to know to make the right decision.

Academics are fine if they are not too pedantic. Practitioners are fine if they are not too colloquial.

  1. Make it Quick (“Efficient”) – Don’t “Guild the Lilly”. 

Keep it moving.  If the expert is not high on the list of communication skills, then work around that. The questions should be short, to the point.  Some experts are just what is needed to fill gaps or holes in the evidence.  If they do not have allot to add but a few points, then get that done and move on to the next witness.

Even if the expert is a “superstar” who has great credentials, and knows how to talk to a jury, if the areas of expertise are narrow, then do not belabor the process.  Jurors get distracted and bored easily if a witness’ presentation drags on beyond what they need to know, so get the job done and close it out on a high note, thanking the expert for his contribution to your client’s story.

  1. Keep Yourself Out of It. 

Very frankly, I see too many lawyers who are more interested in “look at me” than “look at my client’s case.  Perhaps that is a bit cynical. But when the expert is on the stand, stand back. It is the expert’s show. That expert is there because you want this witness’ help in understanding your client’s case. Don’t get in the way of that process and goal. Let’s the expert add to your client’s story.

  1.      Use Some Illustrations, or Power Point if You Can (but don’t turn the lights off). 

“Show and tell” is not suitable for every expert. Psychologists, neuropsychologists, and other medical disciplines do not have bones, scars or imaging studies to portray injury.  Sure there are diagnostic tests, nerve conduction studies, psychological testing, EMG’s and scans of various types, but they likely do not “tell the story”; they may only explain why the condition and symptoms exists..  Their testimony is to put the medical issues into words, so the jury gets the concepts.  Questions to ask to assist in this process include:

  • What is this psychological condition called?
  • How did it affect Mr. X?
  • Was his behavior after the accident different from before?
  • What did your patient tell you about that?
  • Was this change consistent with the type of symptoms you would expect from his injury?
  • How does that work?
  • What is your opinion – to a reasonable degree of medical probability – as to how long this will last?
  • What is your opinion as to how long this will last?
  • How will this affect his daily activities?
  • Is it your opinion – again to a reasonable degree of medical probability – that this will improve or continue as is?
  • What is this based on?
  • So, a year, two years, five years from now is it your view that Mr. X will not be much different than he is today?
  • Will this condition get worse?
  • And what is that based on?
  1.      Don’t be Apologetic. 

If the area of expertise if it is dry, there is no need to apologize.  Just tell the jury how it “fits in” to the case, and why it is essential.  I do not suggest that it is a dry area but just explain the need to have the expert testify as part of my client’s “story” and to explain why we are in a trial.  No apologies are necessary; just get on with it.

  1.      Make the Evidence “Talk”.

With these experts it is the “text” or transcript of their presentation that is the evidence of injury and past and future care that is required.  Often I use the transcript in argument on a visual presentation program to give the finder of fact (arbitration, court or jury trial) jury some time to create in their own minds  the visual picture of what was said by this expert.  Key quotes can remind the jury of the hurt, agony, and enduring psychological injury in a case such as I have outlined above.

  1.    Have a Solid Wrap Up.

Here it he military teaching model provides a valuable suggestion.  In classes during my cadet and early military training, there was always a “wrap up”:

“Let’s review.”

I was reminded of this lately in seeing an ad for a small lantern that is now being sold on a “military theme” of indestructability. The commercial shows the durability of this lantern (indeed I bought several for my family).  At the end, the spokesperson, a very fit man in “military green” fatigues and t shirt, says, “Now let’s review.”  He then outlines the basic points of his pitch.  It worked on me.

A solid review with the expert is a good way to establish transcript that you can reuse in a visual in your closing argument as I suggest.

[1] This paper will address the presentation of expert testimony for a client, and not the approach to challenging your adversary’s expert testimony.  That is for another day.

[2] Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966.  He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP, with offices in San Francisco and Santa Rosa, California.  He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys.  Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow.  He is a “Top 100” Trial Lawyer, a “Top 10 Lawyer” for California in the personal injury field, a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury).  He has been a Super Lawyer each year since 2006.  He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Fourth Edition released in March 2018.  He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure.  You can order his latest book .  http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Negotiating-and-Settling-Tort-Cases-Reaching-the-Settlement-2015-ed/p/100252838

For a review of the book, see http://litigationcommentary.org/Miscellaneous/guy-o-kornblum-book-review.html

 

Posted in: Uncategorized
November 17, 2017

Are Price Hikes Allowed When there is a state of emergency?

Are Price Hikes Allowed When there is a state of emergency?

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLP

The short answer is no.  When the President of the United States declares a state of National Emergency, Penal Code Section 396 prohibits raising the price of many consumer goods and services by more than 10% after an emergency has been declared.  This applies not only to rents, but also to goods and services.

Penal Code Section 396 applies for 30 days after an emergency and 180 days for reconstruction services and emergency cleanup services.  This period can be extended beyond these time frames by state legislature and local officials.

The statute applies to protect the pricing of the following major necessities: rental housing, hotels/motels, food and drink, emergency supplies such as water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, hammers and medical supplies, including but not limited to medications.

The law applies to neighboring counties as well and applies to all providers of the goods or services unless they can prove that the price increase is due to increased labor or material prices.

WHAT SHOULD I DO IF MY LANDLORD INCREASED MY RENT ABOVE 10% AFTER THE NORTHERN CALIFORNIA FIRES?

If your landlord increased your rent above 10% in the 30 days after the Northern California Fires were declared a National Emergency (October 16, 2017), then call the offices of Kornblum, Cochran, Erickson & Harbison, LLP.  Violation of the price gouging statute are subject to civil enforcement actions including civil penalties of up to j$5,000 per violation, injunctive relief and mandatory restitution.  In addition to these penalties, if there is a pattern and practice of a particular landlord increasing rents after the emergency, consumers are protected by the Business and Professions Code (Section 17200 et. seq.) as well.

Posted in: Uncategorized
November 17, 2017

Identity Theft – How can it affect me?

Identity Theft – How can it affect me?

Rachel Erickson

Due to the fires in Northern California, we are seeing an upsurge in identity theft. You need to be aware of how to spot it, what to do about it now, and how to document what you’ve done to protect yourself in the future.

Imagine this – In two years’ time, you are told that you OWE FEMA $34,000 for a small business loan that you took out in the fall of 2017. You are REQUIRED to pay this back. But wait, you say. I never applied for a loan at all!

Identity thieves will use your address and possibly your Social Security Number and Date of Birth to obtain a Small Business Loan (SBL) from the government, then take the money and default on the loan leaving you holding the bag.

WHAT WE ARE SEEING NOW.

FEMA is sending out letters to potential ID theft victims stating that their identities may be compromised. They suggest a number for victims to call to report the potential theft, but this is far from enough to protect your interest.

WHAT SHOULD I DO IF I SUSPECT THAT I AM A VICTIM OF IDENTITY THEFT?

Below is a checklist for what you should do to protect yourself in the event that someone takes out a FEMA loan in your name or if anyone attempts to use your identity to take out a fraudulent loan. Start with a communication log. This is EXTREMELY IMPORTANT. If an agency is going to come after you for an outstanding loan (that you never applied for), you need to show that you were diligent and thorough in protecting your interest, which necessarily protects theirs.

CHECKLIST

Create a binder or folder – create a binder or folder that contains EVERYTHING relating to the potential identity theft. If FEMA sent you a letter alerting you to the potential theft, make several copies and keep one in your binder.

Communication log – keep track of every single communication you have relating to the identity theft. This includes phone calls, emails, web research and in-person communications and letters. Keep this as the front page of your binder. Example of a communication log is below.

Police report – file a police report with local police or Sheriff’s department. They may be surprised or not aware of how big a problem this is currently, so make sure they are aware. Keep a copy of the report in your binder and make a few other copies in case you need them. Make sure to put this in your communication log.

Contact your bank(s) and give them a copy of the letter from FEMA if you have one. Alert them to the potential for ID theft/fraud. Put a temporary freeze on any accounts you don’t use often. If you are really concerned about theft of your bank account, create a new one and close out the compromised one.

Contact your credit card companies and alert them to the possibility of ID theft so they can go on high alert for unusual charges. Make sure they know you are a victim of the Northern CA fires and that you may have unusual charges if your home has burned down, but let them know where you are. When you get credit card statements, look through them to spot unusual or unauthorized charges and bring them to the attention of the credit card company. Put a freeze on, or cancel, any cards you are not using.

Contact the Federal Trade Commission at www.consumer.ftc.gov. They will take your information and help you put together a plan to recover from identity theft.

Contact the Social Security Administration. The wait at local offices is usually astronomical, so consider going online. Report misuse of your SSN. If the theft is bad enough, you may need a new social security number. Go to www.ssa.gov.

Check your credit report. If you get debt collectors trying to collect a debt that is not yours, this is where your binder comes in handy. Give them copies of the FEMA letter, if you have one, your communication log, the police report, proof of freezes on your accounts and anything else you have collected on the way that may be helpful. You will need to write a letter to the debt collection agency within 30 days, explaining that you are a victim of identity theft and that the debt is not yours.

Keep copies of every letter that you receive or send and put them in your binder.

DATE NAME OF AGENCY NAME OF PERSON CONTACT INFO NATURE OF COMMUNICATION
11/13/17 Bank of Who’s Got Your $$ Jenny Lottadough (800) HELPMEE

(800) 435-7633

Close checking, open new account. Freeze on savings account. Was told to send a copy of FEMA letter to her supervisor, Joe Noname
11/16/17 SR police dept Officer Canihelpyoumaam SR police dept

(address)

In person, filed police report and attached copy of FEMA letter.

 

Rachael Erickson
Kornblum, Cochran, Erickson & Harbison, LLP

Rachael Erickson is an experienced Civil Litigator and Family Law attorney in Santa Rosa, California. With 16 years of experience and four years as managing partner of the Santa Rosa Office, Rachael offers personalized strategic advice and strong legal skills to assist each client with their specialized legal matter.

Posted in: Uncategorized
November 17, 2017

Preparing to be Effective at Mediation: Stating the Obvious But the Obvious Needs to Be Restated!

Preparing to be Effective at Mediation:  Stating the Obvious But the Obvious Needs to Be Restated!

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLPOne of my biggest complaints is that some lawyers (and perhaps clients) just do not get it—that it takes considerable effort and preparation to make the mediation process work. It takes:

  • A common and good faith interest in mediation,
  • An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date,
  • The presence of those with authority to settle (with real authority please!), and
  • A level of candor and disclosure that allows the parties top assess realistically assess the other side’s position.
  • And perhaps more than anything, a willingness to listen to what the other side has to say, along with carefully assessing the position counter to the client’s.

If this is done—and it should be if counsel’s representation in mediation is to meet professional standards—then there will be a full discussion and exchange of information before and during the mediation so that the chances of settlement increase.At that time, it seemed to me that mediation had a distinct advantage because it a) brought all parties together face to face, b) involved a neutral who could be a facilitator and an evaluator, if needed, c) was a fixed process for negotiations rather than a haphazard effort to try to settle a case directly, and d) would involve principals or persons who were present who had a direct interest in resolution (e.g. the parties, their appointed representatives or their insurers).What I am hearing now, however, is that mediation is not always the preference and some are finding mediation is not preferred. In part it is because of the cost and in some cases, because one side or the other does not take the process seriously and is not prepared. Except with ADR programs sponsored by a court system, which are at no cost to the parties, mediations are pricey in many cases. Sure, big cases with multiple parties with a lot at stake might be desirable because the costs can be shared and the mediator is needed to isolate on the moving parts and get a global deal done.So, how do we ensure that the mediation process will work in the average mid level lawsuit? Here I elaborate on the bullet points from above:

  1. There has to be a good faith interest in resolution. If there is not, politely decline. If the court directs the parties to mediate, then be honest if a party just wants a trial. But if you attend you must have a real interest in settlement.

One of the important items I have on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I may ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome, if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.

  1. The “check writer” and decision maker must be present. I insist that this be the case or I will not attend. I ask the mediator to confirm this. I fail to appreciate how a mediation can be effective and there be good communication if this is not the case. And, the last thing I want to hear is that the key person, who was standing by the phone (!) left work at 5 p.m. Eastern Time, when I am in a mediation on the West Coast where it is only 2 p.m..
  2. The parties need to be prepared to lay out their case in full in a statement that is exchanged.. How can a mediation be effective if one side conceals its position from the other side? There can be no dialogue if this does not happen. Two page briefs from a party, or mediation statements I never see, allow me to just call off the mediation
  3. The mediation statements must be submitted well in advance of the mediation. It is really galling to get them a day or two before the mediation.

My rule is that I send the mediation briefs out to counsel and the mediator (email and/or hard copies) two weeks beforehand. Because I am usually representing a plaintiff, I need to be sure to get the mediation statement with my demand in time for the defendant(s) to evaluate my client’s position. And it needs to be complete, a “mini” claims file with all supporting documentation. Last minute submissions of additional specials, and thousands of dollars of additional medical bills — does not allow a defendant to review all the relevant information and seek authority so that settlement can be fully explored at the mediation. That won’t happen if the statement is submitted 5 days before the mediation is to take place. Late and incomplete submissions understandably puts a defendant in a bind in its efforts to settle, and only delays the process. Also, if you email the mediation statement to opposing counsel, then it is easy to forward them on to a client or insurance carrier.

From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and reports obtained. That has to be done well in advance of the mediation date. This is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process. Plaintiff should serve a mediation statement at least two weeks ahead of the mediation date. More time is even better. Anything less than this is likely to result in a wasted day.

  1. The client needs to be prepared to make decisions before the mediation day. On the plaintiff’s side, spend a few hours going over the details of the case, the cost of going forward, and the dollars and cents involved if it progresses further or is tried. What is the likely outcome and how much will it cost? Use the statistics of what happens if the parties walk away; what are the chances of a better result [2]. Look at the economics of going forward and consider the present or time value of money from the plaintiff’s side. What is the value of having cash now versus the “hope” of more cash later?

Be prepared to be an active participant in the process: Be professional, meet and greet the other side and make sure all attending have met you and your client and exchanged greetings. There is no reason to be angry, hostile, or defensive. Just be a good participant in the negotiation process and see if you can get the job done – closure for you and your client.

Guy O. Kornblum, KCEH Law
Guy O. Kornblum

 

[1] Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbison, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is a “Top 100” Trial Lawyer, and is a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. You can order his latest book at: http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Negotiating-and-Settling-Tort-Cases-Reaching-the-Settlement-2015-ed/p/100252838; See also the review of his book: http://litigationcommentary.org/Miscellaneous/guy-o-kornblum-book-review.html. His firm’s website is www.kcehlaw.com. Mr. Kornblum is a strong advocate for mediating his client’s cases before going to trial or arbitration.

 

[2] See G. Kornblum, “Research Confirms Negotiated Results Superior to Going to Trial,” San Francisco Attorney (San Francisco Bar Association, Spring 2009), which discusses the study by Dr. Randal Kaiser of Decision Set in Palo Alto, California, and which compares from both the plaintiff and defense side the statistical chances of doing better that what a settlement presents.

 

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