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