Negotiating the ultimate settlement

Upchurch Watson White & Max
Mediation Group
and the University of Florida
Levin College of Law
Institute for Dispute Resolution
are proud to cosponsor today’s Webinar:
NEGOTIATING THE
ULTIMATE SETTLEMENT

Our moderator,
Sandy Upchurch
Mediation Counsel
Upchurch Watson
White & Max
supchurch@uww-adr.com
uww-adr.com
Our presenter,
Charles A. “Chuck”
Mancuso
Mediation Counsel
Upchurch Watson White
& Max
cmancuso@uww-adr.com
uww-adr.com
2
Negotiating the Ultimate Settlement

NEGOTIATING
THE ULTIMATE
SETTLEMENT
PRESENTED BY CHARLES A. (CHUCK) MANCUSO

AGENDA
Introduction
Evaluation of Liability
Evaluation of Damages
Initial Demand
The Bottom Line
4

INTRODUCTION
BE YOURSELF
BE OPEN
5

ON BEING GENUINE
• Negotiation techniques and strategies are often written about
and examined by other attorneys, but the best techniques for
you should be what comes naturally to your character and
demeanor.
• Develop your own style and techniques based on basic
fundamentals.
6

ON BEING RECEPTIVE
• Candor, fairness, and a willingness to maintain an open
dialogue are traits that appeal to an adjustor and a defense
attorney. Provide them with information promptly and
efficiently. It often makes their job easier in evaluating your
claim. Without an open dialogue and transfer of information,
no negotiations can occur and there will be no settlement.
• Never let communications completely shut down. It makes
you look eager when you want to resolve the matter and have
to reopen negotiations.
7

TO NEGOTIATE, YOU MUST HAVE THE
LIABILITY ISSUE AND ITS COMPONENTS
FULLY ADDRESSED AND EVALUATED.
WITHOUT A PROPER EVALUATION OF
LIABILITY AND POSSIBLE REDUCTIONS
FOR COMPARATIVE NEGLIGENCE, YOU
WILL BE UNABLE TO ADDRESS THE
DAMAGES ISSUE ALONE.
EVALUATION OF LIABILITY
8

WITNESSES
Have statements secured from all witnesses. Turn over all of
the rocks now so nothing will surprise you from your
opponent in the future (i.e. take the offensive).
• The best record in obtaining statements would be a signed,
recorded statement of your witness. If your case does not
merit this expense, then just pick up the phone and call the
witness yourself. They may be those listed on the accident
report or those relayed to you by your client.
• Ten minutes of your time will provide you with invaluable
information during negotiations. Even if no positive
information is obtained, it will be beneficial in your
negotiations with your opponent if they know you have
spoken to all the relevant witnesses regarding your claim.
9

THE SCENE
Photographs of the
scene taken by the
investigating officers
and/or paramedics
should be obtained. If
none were taken and if
the physical area is
beneficial to your liability
theory, then you should
take photographs of the
area.
For severe damages,
aerial photographs
should be obtained.
Aerial photograph
packages can now be
purchased for under
$300. (They) are
impressive and can be
used to emphasize the
seriousness of your
claim ….
10

The most severe
accidents usually
generate media
coverage. This coverage
often contains some of
the first photographs and
video documented
aspects of your case.
MEDIA INFORMATION
11

HOW TO OBTAIN
LOCAL NEWSPAPERS
Request copies of print and photo
material that may have been
generated from the accident
(photos are often the most dramatic
and of the finest quality). Both can
be obtained for a small fee, and a
reporter’s written account of the
statements made at the scene can
be helpful and do not fall within the
accident report privilege.
TV NEWS
Video will often provide you with
helpful and compelling information.
For accidents warranting TV
coverage, the assistance of a video
recovery service should be used to
contact all news stations in the
market, obtain all videos taken at
the scene and editing numerous
clips into one video. You can then
use your own technician to edit
repetitive coverage and provide the
video with a custom introduction
and other graphics where needed.
12

You will know at the time of
your initial review of the
case if the liability issue,
combined with the severity
of the damages, warrants
the retention of an accident
reconstruction expert.
LIABILITY SUPPORT
13

TIME IS ON YOUR SIDE
• If the case warrants the use, then retain the accident
reconstruction expert immediately. Have them at the scene as
soon as possible. Remember, you are at a great advantage.
Long before your opponent can retain this type of expert, your
expert will have personally visited the scene. Debris, gas and
oil spills, skid and scuffmarks and vegetation damage quickly
disappear. Your expert has the edge.
• Your opponent’s experts in the future will only have the
favorable information collected by your expert to review.
14

ONCE YOU HAVE ESTABLISHED A
WORKABLE LIABILITY THEORY,
YOU SHOULD NEXT OBTAIN ALL
RELEVANT DAMAGE
INFORMATION. THIS IS THE MOST
VALUABLE ASPECT OF THE CASE
FOR YOU AND YOUR CLIENT.
EVALUATION OF DAMAGES
15

INITIAL NEGOTIATION CONTACT
Be thorough, complete, and informative. It is often at this
stage the insurance carrier will initially evaluate your claim
and set a reserve on your file.
• Reserves, although not etched in stone, often place your
claim in an initial monetary category that is the most difficult
for the adjuster to increase. They will often be embarrassed to
request an increase from a superior of the reserve. This could
place the adjuster in an uncomfortable situation. Remember,
always make it easy for your opponent to evaluate and settle
your claim.
16

PHYSICAL INJURY
MEDICAL RECORDS
Obtain all current medical
records prior to the initial
negotiations, including:
ambulance, paramedic,
emergency room, treating,
and referral physician
information. There should
be nothing left out that may
allow your opponent the
opportunity to stall for time
while the information is
obtained
FINAL REPORTS
Final reports should have been
requested from all treating
doctors, preferably, on per
treating specialty.
Your final report should also
contain an estimate by the
doctor of any future
recommended care and
treatment, including physical
therapy. Documented future
medical care and treatment
will validate your claim for
those expenses.
17

TANGIBLE MEDICAL HISTORY
18

PHOTOGRAPHS
If the injuries merit such,
have a photographic
history prepared prior to
negotiations. Preferably,
this should have been
initiated soon after you
signed up your client.
Time is of the essence, as
bruising, swelling, stitches,
and staples are often non-
existent at the time of
settlement. Very often, if
any plastic or
reconstructive surgery was
performed, the doctor or
the hospital takes
photographs prior to the
procedure. These
photographs should be
obtained and often have to
be specifically asked for.
19

If visual objective tests, x-rays, MMI’s, Cat scans, or thermograms enhance or
substantiate your claim of damages, then have them copied and ready to be
provided to your opponent.
POSITIVES/ENLARGEMENTS
20

ARTISTIC RECONSTRUCTION
If the damages are severe, or if the complexity make
them uncommon, you should utilize artistic
reconstruction specialists. They will recreate the initial
injury and its damage as well as explain and visualize
the surgery or care required to address the injury. At
trial, these exhibits can be used by your treating
doctors to graphically explain their care and treatment.
21

Any appliances utilized
by or implanted in your
client should be saved.
Letting your opponent
know you have or will
have that rod, brace, or
screw ready to show the
jury will enhance your
ability to elaborate in the
seriousness of your
client’s injuries.
APPLIANCES
22

PRIOR MEDICAL HISTORY
Obtain all records yourself (don’t rely on
your client) so you will know if your case
will be poisoned if you are forced to litigate
Normally these are not sent voluntarily to
the lawyer.
23

ECONOMIC DAMAGES
Introduction
• Economic damages are the most tangible damages, but often
the most undocumented and unsupported. At the initial phase
of negotiations, these elements can greatly enhance your
claim.
• Proper documentation will provide you with substantial
backing for an economic claim in a soft tissue case and will
obviously enlarge the major economic losses in the most
severe of cases.
24

ECONOMIC DAMAGES
Past and Future Medical Expenses
• These are the easiest of damages to substantiate. Have all
past bills compiled and ready to provide to your opponent.
• Future medical expenses for care, treatment, therapy, and
medication should be documented within the final reports of
your client’s treating doctors.
25

ECONOMIC DAMAGES
Wage Loss (Soft Tissue/Minor Injury Cases)
• The past wage loss can easily be documented by statements
from your client’s employer or by evidence of your client’s PIP
“Wage and Salary Verification” form. Very often, this may be a
minor claim as a result of the PIP payments, but may be
substantial if the medicals have exhausted PIP.
26

PROPERTY DAMAGE
Photographs and property damage estimates
should be in your file. If the damages are severe
enough, you should have the vehicle held in
storage or made readily available to your
opponent. Don’t photograph if damages are not
easily seen.
27

HEDONISTIC DAMAGES
Know Your Client
• There will be no way you can make substantial demands for
hedonistic damages (pain and suffering, loss of ability to
enjoy life, etc.) unless you know your client. You must
reconstruct your client’s life and be ready and able to inform
your opponent of your client’s life history, including:
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ELEMENTS OF CLIENT’S
LIFE HISTORY
Education Health Employment
Family Recreational Athletic
Civic
Friends and
Relations
29

HEDONISTIC DAMAGES (CONT.)
• Take your client out of the “ordinary life”. Each one of the
previous elements will be affected as a result of your client’s
injuries. Examples and comparisons should be made in each
category showing how your client lived their life and how they
will be affected in the future.
• Without a proper understanding of the totality of your case,
you will be negotiating towards a settlement that will not
reflect all of the damages incurred by your client. This partial
evaluation of your claim will result in a partial settlement.
30

ECONOMIC DAMAGE SUPPORT
Calculating the economic damages in
moderate to severe auto cases often requires
experts who can convert the physical injuries
into monetary losses.
31

NON-MEDICAL EXPERTS
• You should know when you sign up the case if it merits the
use of non-medical experts. If so, don’t wait to place them on
retainer and to provide them with the information they need.
• The two most important non-medical experts are:
• Economic
• Vocational rehab specialists
32

NON-MEDICAL EXPERTS (CONT.)
• They cannot issue a final opinion until the severity of the
medical condition is evaluated and your client is at MMI.
• In order to have their information ready for you in negotiating
a settlement, you should forward all information they require,
that you have in your possession, prior to MMI.
• Interviews and questionnaires with your client, and research
regarding occupation, past income, and past household
services performed can be completed and prepared prior to
MMI. Having this work done early on will save time after MMI
when you can engage in settlement negotiations.
33

INITIAL DEMAND
BE REALISTIC
CONTROL INFORMATION
PRESENT SETTLEMENT
PACKAGE
CONTROL PRESENTATION
RECOGNIZE THE NEGATIVE
34

BE REALISTIC
Research the value of your case if it strays
from the usual set of damages that you handle
in your daily practice. Being able to cite recent
local jury verdicts will remind your opponent of
the possible exposure and support of your
demand. The Jury Verdict Reporter, P.O. Box
20728, Tallahassee, Florida, 32316, is an
excellent source.
35

BE REALISTIC (CONT.)
• Talk to fellow attorneys and obtain their advice and
recommendations regarding damages, as well as any
past experiences they may have had with your
opponent (whether it be a defense attorney, insurance
company, or independent adjuster).
• Utilize local case evaluation clinics. Many area Trial
Lawyer Associations have case evaluation clinics prior
to their monthly meetings. For a more complete and in-
depth evaluation, utilize the Academy of Florida Trial
Lawyers case evaluation clinics presented at their
various conventions around the state.
36

CONTROL OF INFORMATION
You call the shots. Once you have compiled
your information, based on liability and
damages, you can decide on what information
to release and at what times.
37

SETTLEMENT PACKAGE
When you forward your settlement package or present
it at mediation, do it “first class”. Have it bound and
hold punched with a directory and index. Make it
thorough and complete with all the information you
deem relative to be presented at that time. Remember:
make it easy for your opponent to resolve the dispute.
38

PRESENTATION
The only aspects of the case that plaintiffs and attorneys
have total control over are presentation, preparation, and
appearance. After all, you can’t change the facts; you can
only argue the law. Show up sober, don a suit, and half of
the battle is done. Letting your opponent know you are
prepared to try a case and that you know all of the aspects
concerning liability and damages will enhance your
negotation style. Be on the offensive and place your
opponent in the corner and on the defensive. Let them
know that they are “behind the eight ball” and are literally
months and thousands of dollars behind you in discovery.
39

RECOGNIZE THE NEGATIVE
• Part of keeping an open mind during the collection of
information, while you piece together your liability and
damage theories, is the recognition of the negative.
• Very often, as we get deeper and deeper into a case, we can
no longer see the forest through the trees. Identify the
negative aspects of your case and let your opponent know
that you have taken them into consideration (e.g. liability vs.
speeding, and damages vs. age of plaintiff). Take your
opponents’ arguments away before they can rely on them. In
layman’s terms: Come right out with the negative.
40

THE BOTTOM LINE
PROPER ETHICAL
GUIDELINES
PAYBACKS ARE HELL
41

PROPER ETHICAL GUIDELINES
• Proper ethical guidelines mandate you should not make any
demands or reject any offers without your client’s consent.
Document all demands and offers and confirm with your client
their desires.
• Clients are concerned with one issue in the thick of
negotiations: how much will they incur? Remember to sell
your client what is in their best interests and always be
prepared to convert a demand or offer amount to your client’s
net recovery after attorney fees, costs, medical bills, and liens
are taken out.
42

PAYBACKS ARE HELL
• To understand your client’s bottom line, you must recognize
the numerous medical liens in your claim.
• Your failure to recognize and address these liens at the time
of negotiations and settlement may make you personally
liable to satisfy these liens in the future.
43

POSSIBLE LIENS
These liens may reduce your damage request for outstanding
medical bills, but should be included as outstanding at the
time of negotiations. If they are paid back, they are
outstanding:
• Hospital liens
• Worker’s Comp liens
• HMO liens
• Medicare liens
• Medicaid liens
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“Negotiating
the Ultimate
Settlement”
Florida Bar
Course #
1407471N
1.0 CLE Credits
General
1.0 Civil Trial
Certification
West Palm Beach  Fort Lauderdale/Plantation  Miami  Maitland/Orlando  Daytona Beach  Jacksonville
Upchurch Watson White & Max Mediation Group
uww-adr.com
Please email cklasne@uww-adr.com with questions about course number, Webinar recording, etc.
Please contact Chuck at
cmancuso@uww-adr.com with
questions or comments
regarding content.
45

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