| I arrived to help my client prepare for his upcoming | | | | this case would freak me out?" |
| mediation. The first thing he did was show me all the | | | | THE ELEMENTS OF THE SPHINCTER-TIGHTENING |
| wonderful family photos he had of his client and her | | | | PRESENTATION |
| husband, the decedent. | | | | Their Witnesses and Documents |
| "My guy was the perfect plaintiff," the attorney began. | | | | The first answer is bad defense witnesses. Since |
| "Spent tons of time with his kids. He was the one who | | | | lawyers in general-and busy defense firms in |
| took them to school most every morning, he coached | | | | particular-tend to do a terrible job of prepping |
| all their teams. An elder in his church. Loved by his | | | | witnesses before deposition, it is imperative that you |
| neighbors. A consummate professional. His wife is a | | | | videotape all key defense witnesses: company |
| great witness. And this," he said pointing to the autopsy | | | | witnesses, doctors and even experts. If you are in the |
| photos, "is what happened to him. We're going to ring | | | | habit of videotaping everything, good for you. If not, |
| the bell on this one." | | | | now is a good time to get in that habit. |
| I viewed the photos silently, but all I was thinking was, | | | | As much as possible, tell the story using defense |
| "So what?" | | | | witnesses. Pull out the parts of depositions that show |
| So what? | | | | blazing incompetence, indifference or best yet, bad |
| CONSIDER YOUR AUDIENCE | | | | motive. As much as possible, include documents |
| Yes, so what? These photos, the stories, the | | | | generated by the defense to bolster your case. |
| personification of the deceased all have their place in a | | | | Adjusters don't typically see witness testimony before |
| trial. In a mediation, it's slightly different. We're not | | | | trial. If they've got some awful witnesses, make the |
| playing to jurors. We're playing to the person who | | | | adjuster painfully aware of it. Start and end with their |
| holds the purse strings. The insurance adjuster. Does | | | | horrible witnesses. |
| an insurance adjuster care that your young client was | | | | The Timeline |
| Phi Beta Kappa? Not likely. Is an insurance adjuster | | | | Sure, a timeline is always helpful for audience |
| emotionally affected because your client's legs were | | | | comprehension. But in the mediation presentation, you |
| burned off him while he sat half in and half out of the | | | | want to use the timeline to highlight points in the |
| SUV that had just rolled over on him? Doubtful. | | | | process at which the defendants could have made |
| Insurance adjusters have seen the worst of the worst. | | | | different choices that would have spared the plaintiff |
| They see horrific injuries every day. They see | | | | his fate. Did they hire against policy? Fail to train? |
| "perfect" plaintiffs every day. It doesn't move them. | | | | Decide not to inform the customer base of a |
| What do insurance adjusters care about? | | | | potentially fatal flaw in the safety product? Put it in the |
| Insurance adjusters care about one thing more than | | | | timeline. |
| anything in the world, even more than money. | | | | WHAT ABOUT MY PLAINTIFF? |
| Risk. | | | | Of course your plaintiff needs to be included in the |
| When an insurance adjuster is listening to and | | | | presentation. Doing so serves two purposes: 1) it |
| watching a mediation presentation by a plaintiff, she is | | | | shows the other side that either your client is a gem |
| asking herself, "What is my downside here? What is | | | | (or perhaps that in this venue it won't matter if he isn't); |
| my risk level?" And she is constantly weighing the risks | | | | and 2) it's good client relations. But the plaintiff should |
| of going to trial versus the costs of settling with money | | | | be a coda, just a quick notice to the defense that they |
| that the insurance company would prefer to hold on to | | | | won't be able to score big on "your guy." |
| for a little longer. | | | | The big dollars don't lie in the beauty of your plaintiff's |
| YOUR OBJECTIVE: COMMUNICATE THE RISK | | | | life and the tragedy of his loss. The big dollars lie in the |
| When you start putting together your mediation | | | | adjuster's uneasiness about the risk. And if you can |
| presentation, instead of asking, "What's great about my | | | | get the adjuster's sphincter to tighten, her hands may |
| case?" ask yourself, "If I were the adjuster, what about | | | | well loosen. |