The King County Superior Court requires mediation before trial. Statistics show over 90% of cases settle. Here are some mediation considerations:

Why Mediate. Outside of the fact mediation may be mandatory,  lawyers must ask why are we mediating. When the insurance company is taking a no liability or limited liability position, or when it is clear there is no appreciation of the value of the case, mediation is a waste of time.  Here the lawyer should move to waive mediation or use a bargain basement mediator.

Reverse Psychology. Insurance companies expect the plaintiff lawyer to settle before trial. They take this for granted and calculate the lawyer will settle for less than a good trial result. When the plaintiff lawyer ignores settlement and works the case with the intent to try the case the insurance company is caught off guard. This is not what it is used to seeing. This leads to a better appreciation for the case which translates to higher case value.

When Mediation is Essential. When the case has been properly worked and ready for trial and you want to hear the most the insurance company will pay for the case mediation is where you want to be. In can be argued the lawyer owes it to his client to mediate whenever there is an appreciation of the case. A case has two values: The most the insurance company will pay, and what the case will bring at trial. At mediation the lawyer gets his client the most the insurance company will pay. This may be equal to or greater than the trial value. And it is a sum certain without risk.

Take Mediation Seriously.  Always submit a mediation memorandum. Show what will happen at trial. Have client bound with  mediator. Create a sense of trust, confidence and belief in the mediator. Show the mediator you know she is doing everything possible to get the highest offer. Show the mediator you have confidence in your case. When she brings in the insurance company lines on case problems swat them away as in trial. She will take this back to the insurance company. Never tell the mediator your bottom line and never show satisfaction with the insurance offer (until you know it is over).

Possibility of High Low Agreement. Consider a high low agreement when it is evident there is substantial risk on both sides and the insurance company is offering a decent amount in mediation. Under the high low agreement the insurance company agrees to pay a minimum amount even if there is a defense verdict. In exchange plaintiff agrees to limit her recovery to the high amount even if there is a runaway verdict. In a first party case (insurance company is client’s company) the insurer should pay the low amount immediately.

When to Try the Case. Before the mediation have a realistic appraisal of the trial/arbitration value of the case. If the insurance company is substantially below this evaluation (even when increased costs of trial are considered) then try the case. At least in mediation you have gained a better understanding of how defense will try the case. You have also done your job in determining  the insurance company’s highest offer.

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The United States Supreme Court will decide next month whether to hear a case involving the infamous Feres Doctrine. In 1950 in Feres v. United States, the Supreme Court held that military servicemen cannot bring actions against the United States for injuries which “arise out of or are in the course of activity incident to service.”  The doctrine has been criticized by VA groups and military personnel as unfairly limiting an active military person’s recovery rights.

Supporters of the Feres Doctrine maintain eliminating the doctrine will “demean injuries suffered in combat by providing the soldier injured on the battlefield with administrative compensation while the soldier injured in a military hospital could seek a multi-million dollar damage award in federal court.” (US Rep. Trent Franks, R-Ariz).

Distinguish between Battlefield and Hospital. There are traits of a good soldier and I suspect most people who chose to go into the military have the traits of discipline, courage, and reliability that make a good soldier. The soldier no doubt understands he is getting into potential loss of life and limb in battle. But once the battle is over, and the soldier is in the care of  a military health care provider, he should be able to rely on proper care. This means the same standard of care a retired soldier or non military person receives.

The Trial Lawyer Myth. In 2009 a bill was introduced into the House that would limit Feres by allowing military personnel to sue for medical malpractice. Republican lawmakers derided the bill maintaining it would be expensive and benefit trial lawyers more then service families. The bill died. This argument ignors the fact that a soldier who is injured by military health providers who fall below the standard of care and cause harm lacks the money to pay a lawyer to take on the United States Government. It is only through the contingent fee offered by a personal injury lawyer that the soldier is able to maintain an action to redress his injuries. If the lawyer loses the case he receives no fees and most likely loses the money he has spent to work up the case. These realities ensure the lawyer will not bring a frivolous lawsuit.

Government Cost in Claims. Allowing a soldier to sue for government negligence outside the battle field will result in the United States Government paying valid claims and this will cost money. But there will be two corresponding benefits.  First, the soldier will receive the compensation to which he is entitled. Second, our Government will inevitably take steps to remedy the cause of the harm. This makes life safer for the next soldier.

Value Our Soldiers. The principal reason the Feres Doctrine should be modified to allow soldiers to recover for government negligence off the battlefield is respect and dignity to our military personal. Our soldiers risk life and limb at less pay than they would receive in the private sector. Our military is the foundation for our greatness as a nation. Military personal should have the same rights we have as United States citizens to redress negligent wrongs that harm them and their families.

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The issue of “civility” among lawyers is being discussed in Washington. This post sets forth my input on dealing with the opposition lawyer.

Not Much has Changed. Over the years the topic of lawyer civility surfaces and when it does the topic is accompanied with the exclamation that lawyer professionalism is not what it used to be in the good old days. I am here to report that not much has changed. Of course there are some ass hole lawyers but the ass hole lawyer has always existed and always will exist. Yesterday and today the majority of lawyers are decent people doing their job. Today is the same as “the good old days.”

Get to Know your Opponent. The key to being a lawyer is to get tho know the other lawyer. This means take the time to learn what the other lawyer does outside of practice law. Listen and learn. Usually you will find the other lawyer either has interests similar to yours or has interests that are worth talking about and learning about. This creates common ground that can be built on to reach consensus on procedural matters and potentially substantive matters.

Return Phone Calls. Never ignore the opposition lawyer. In fact  go out of your way to communicate with the other lawyer. In the old days this meant promptly returning phone calls. Today we add promptly respond to e-mails as well as phone calls.

Coordinate Dates. Rather then setting a deposition or motion without contacting the opposition lawyer, pick up the phone or e-mail to get dates that work for him before scheduling the matter. Also be sensitive and receptive to the other lawyer when he needs to reschedule a matter. This type of professional courtesy will come back in spades because he will return the favor and inevitably you will need the favor returned.

Kill Him with Kindness. In the rare case where the opposition lawyer is an ass hole, kill him with kindness. Never lose control. Always conduct yourself as you would in the courtroom. In this vain use the rules on the ass hole. Stand on them with firm professionalism. Put all matters in writing-writing you would have no problem with the judge seeing.

The Courtroom. In court especially in the presence of the jury show professional courtesy at all times. Leave a distance between you and the opposition lawyer. Never buddy-buddy in front of the jury. Always figure the jury likes both lawyers but wants to see a battle and in battle the two sides are not overly friendly.

The Unknown Opponent. Never underestimate your opponent. Never over estimate your opponent. Prepare for your case, believe in yourself, accept the possibility of failure, give your best effort, and never, never quit on yourself.

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In a wrongful death case the jury is required to place a monetary value on human life. This post discusses different ways our society places a value on a human life:

Bush Administration Value. In 2008 the Bush Administration placed a value of  $6.9 million on a human life. This was $.9 million less then the value placed on a human life by the administration five years before. The administration places a value on a human life for purposes of EPA regulation. Put simply when determining whether to regulate the total cost of the regulation is weighed against the total cost of lives saved by the regulation. When the cost exceeds the number of lives saved times $6.9 million the regulation is too expensive.

BP Spill Value. The Wall Street Journal reports death settlements in the BP Deepwater Horizan oil rig explosion are in the $8 million to $9 million range. “The companies are eager to settle the cases and avoid widely publicized trials… .” WSJ March 30 2011 at A5. As reported by the Journal the settlement range is higher then what is seen in most wrongful death settlements because of the sensational in the news nature of the wrong that led to the tragic deaths.

Medical Insurance Companies. Medical insurance companies place a value on one quality year of human life to determine whether to cover a medical procedure. They typically place a value of $50,000 on one quality year of life. They use this formula to determine if a new medical procedure will be covered. $50,000 seems low. A Stanford economist calculates the amount should be $129,000 for the value of one quality year of life.

Same or Different Value. Kenneth Feinberg  a New York attorney was dealt the task of assigning wrongful death amounts for people killed in New York in the 911 terrorist attack. He used typical legal standards such as age and earning power to assign value. This meant a successful stock broker’s family received more then the family of a fireman because of the difference in earnings. Feinberg states he became troubled with assigning different values and came to the conclusion that all lives are worth the same. Later when he was dealt the task of assigning life values to those killed in the Virginia Tech shootings he treated all lives the same regardless of age and earning power and compensated all families in the same amount.

Jury Instruction. In a wrongful case in Washington the jury is instructed to compensate for loss of love, care, companionship, and guidance. These are the elements of general damages for the emotional loss of a parent or child. The financial loss is determined in the “survival action.” It is up to the lawyer to suggest to the jury what the value of the life is. The lawyer is guided by his experience in wrongful death cases, by prior jury results, and by the facts of his case. Although the value is priceless, the jury will set a value. The lawyer has the difficult job of calculating the value of life in his case. It is my hope this post provides some assistance.

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