I have a passion for dispute resolution. It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s. He was a master negotiator but at the same time a supreme diplomat. His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor.
I spent a number of years as a traditional “defense” lawyer in the civil litigation arena. As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974). There was no bifurcated trial with the financial worth of the insurer not being known by the jury until a “second phase.” That was the first thing the plaintiff’s lawyer wanted the jury to hear before the 1988 legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitives were warranted.
Now as a plaintiff’s (primarily) lawyer I hope I have a keen sense of “worth”. That is, what is the value of the case, and how much is it going to cost to get there? That is a critical assessment from Day One for any plaintiff’s lawyer. Not all cases are “bell ringers” with high 6 or 7 figure potential – real potential, that is.
I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation and even mediation of disputes. There are many reasons why. A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client at that point. Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?” They are not enthusiastic about going through a trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.
Key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires. It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands. Maybe an early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy my Dad used to get a “just” result.
Guy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He is the author of “Negotiating and Settling Tort Cases: Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017).