Ten Tips for Successful PI Settlements

An estimated 95 percent of all civil lawsuits are settled; therefore, it is imperative that all trial attorneys raise the level of their knowledge of settlement negotiations.

Over my close to 25 years as an attorney, I have developed a list of what I call "10 Settlement Truisms". I share them here so that trial attorneys may familiarize themselves with some points that appear over and over in case after case. This column is extracted from remarks I recently made at the Illinois Trial Lawyers Association past presidents seminar. While my views may have a plaintiff’s counsel bent, most of these points are equally applicable to my colleagues in the defense bar.

The value of a case is the amount of the check on the table; stay grounded and keep a cool head. The first rule necessitates asking the client his or her goals. Most plaintiffs will say, "I don’t know." And that’s understandable. The attorney actually is not looking for a substantive answer. What is important is that the client be engaged in the process and feel like a meaningful participant. It is the client’s lawsuit, not the attorney’s. If the attorney gets heady and loses focus, it inevitably will interfere with one’s judgment.

In negotiation sessions, the defense should never state a number that can’t be paid. If you do, the defense’s assessed case-value ceiling will become the plaintiff’s floor.

In negotiation sessions, the plaintiff should never state a number that can’t be accepted. Here, too, the plaintiff’s assessed case-value floor becomes the defendant’s ceiling.

Loose lips sink ships. This adage may require more discipline than appears at first blush. Closemouthedness is a necessity not only in court but alos in elevators, bars and even restroom. The anecdotes on this point could fill this page, and everyone seems to have one of his or her own war stories to share.

Prepare for a trial, not a settlement. If you prepare for settlement, you will always have to settle for mediocrity. Complete trial preparation adds to the final results obtain in the settlement process.

Preparation begins with the first client meeting. In that meeting, all possible damage witnesses who can testify regarding an injuries’ impact on the palintiff’s life must be determined to evaluate the "true" value of the case. All documents, records, photographs and other items of evidence must be secured. The experienced trial attorney will map out all the motions ahead of time. The defense must know that the plaintiff will carry "the ball to the hoop" if settlement negotiations fail.

Cultural anthropologists teach that in all times there have been healers and warriors. Be a warrior. I find that a trial attorney can be all the healer he wants, after the warrior brings his opponent to its knees.

This truism boils down to whether passive or aggressive settlement negotiations work. As I said earlier, prepare the motions, take the depositions, work toward trial. I find that the prepared, aggressive, warrior style is ultimately more beneficial for a plaintiff. However, you can be aggressive without being discourteous or lacking in civility.

Exercise discipline in all correspondence. If you are exchanging settlement demands by letter, do not use sloppy language. Less is more. All correspondence must be prepared with the notion that it might turn up in the public domain. Don’t talk of discounts. Know the latest reported case law from the appellate court on bad-faith litigation.

Communicate complete terms; don’t be a moving target. Put all the terms up front; don’t change items or add factors once your opponent agrees to the basic tenets of a settlement.

If you want confidentiality to be maintained, put the requirement as an up-front condition of settlement. If you do no want confidentiality, then make that point early on. If you want a check in 14 days, make it part of the bargain. It is embarrassing and unprofessional to try to explain to a client where the money is when a defendant delays payment. It is the plaintiff’s attorney’s fault when the check is in the client’s hands later rather than sooner.

Maintain credibility with the settlement judge, and appreciate the court’s role.

Don’t initially barter with defense counsel and then put yourself in a position where you are bidding against yourself with a court that’s encouraging you to take a lesser figure. It is not the judge’s role to achieve the result you want; it is the judge’s role to try to see that the case is settled, regardless of the figures. Your client, however, will care about the numbers; a few dollars may make a difference in your client’s life and the client’s feeling that you achieved a full and adequate compensation for the injuries.

All cases come down to 2-7-10. The general rule I tell all my clients is if you demand 10 units (what a unit may be in real dollars) and the defense offers two units, you have a trial on your hands. If, however, they offer seven, the question becomes, do you go to trial over the difference of three units and also put the initial seven at risk?

The answer lies with the client. It is key to keep the client in the process. I believe you should seldom commit to solely one settlement value in a case, but make sure you and your client are committed to the same goals before approaching settlement negotiations.

Once discovery is completed, you will have a clearer picture of the value of your case. In addition to your experience, utilize the Jury Verdict Reporter and other similar services to understand what kind of verdicts and settlement there have been for similar injuries in the county in which you have filed the case. Be aware that substantial sums are usually guarded by confidentiality agreements, so that such reporters may be skewed in favor of defendants. Be careful, therefore, to use such figures as advisory only.

Be sure to know the coverage limits, including excess coverage, and, if the case warrants, place the demand into the upper coverage so that the higher-limits policy is at risk and the excess carrier is forced to be involved and take action on the case.