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Mediation Negotiation: One Reliable Method to Evaluate Personal Injury Damages

December 18, 2013

The initial requirement to begin any negotiation is to first determine the value of what it is you are buying or selling.  In the trial practice-mediation arena, it is also called knowing your alternative should mediation be unsuccessful; that is, your likely verdict outcome at any future trial required.  See, Rule One, Know your Alternative(s) Should Mediation Be Unsuccessful.  December 19, 2010

Whether you are the seller or the buyer, or, specifically for this mediation-trial practice article, in personal injury practice, whether you represent the claimant or the defendant, almost everything you do after accepting representation must first involve your objective evaluation of the damage claim being made.

There are as many theories and ideas of  how to perform this critical part of the personal injury practice as there are attorneys.  Much has been spoken and written about the subject and much more will be.  Many firms have relatively stylized methods for their evaluations.  Apparently, there are now even computer programs that others rely upon.

However,  with all of these resources available,  it remains clear to me that far too many parties, and their counsel,  still come to mediation WITHOUT having actually performed a clear damage claim evaluation.

Thus, I would like to suggest one easy method of pre-mediation damage evaluation that has been repeatedly proven to be not only reliable, but useful.   And, it is also a method that is useful for many purposes, including at mediation.  See, Mediation Opening Statement:  A Required Consideration…Your Likely Verdict Form,  August 9, 2011.

That method?  Complete The Florida Standard Verdict Form applicable to your claim sought or defended, using  the Florida Standard Jury Instructions as your handy legal and evidentiary guide.

As a “mature” trial lawyer (I always avoid the term, old) who began practicing long before standard “anything”, I always believed in “working backwards”; that is, picturing how my case would end in order to plan how it would begin!   I still advocate that process.

For example, all jury cases (and many bench trials) always end with a proposed verdict form for the jury (or judge) to complete.  And the last thing any jury hears before filling out their verdict are the jury instructions!

Thus, begin your own evaluation process by physically, preferably (or at least mentally) “filling out” your likely verdict form applicable to your claim . 

Florida trial lawyers are blessed with a standard interrogatory verdict form for almost every personal injury claim.  The multi-question format is thus easy for the jury to understand and follow.  And, it ensures that, if any jury reaches the damage issue in any such claim, that the jury must individually and separately review and award, if applicable, all lawful damages permitted.

(Note:  I have not forgotten the obvious issues of “liability” and the significant modifying effects of this initial portion of the verdict on any damage final judgment, but for the purposes of  at least obtaining an objective view of claim damages, I purposely defer a discussion of the also-critical evaluation of liability to another future posting.)

Next, by reading the applicable jury instruction on damages, including each element of damage, as reflected upon the verdict, you are immediately provided with an objective “reminder” of both the law and evidence necessary for you to argue each item to a jury.

For example, when completing the “past” medical expense portion of the verdict for individual injuries, if you don’t know it by heart, please first read each of the several standard jury instructions upon what a jury is permitted/required to consider in entering those damages.

There are general damage instructions that will be given to any fact-finder,  including what standards of evidence are required (and the often-forgotten “aggravation” instruction where prior injuries or conditions are at issue) followed by specific definitions of each of the multiple elements of such damages that may be considered.  Objectively, ask yourself, can I meet these standards?  Will my evidence be admitted?

And, if there are legal procedural issues to your bills  (i.e., what may be “boarded”, what may be set-off, etc.) face each of those issues objectively by asking, objectively, “WWJD” or (What Will My Judge (likely) Do?) as you complete your form.

If you then plan to suggest or defend future medical damages, including,  i.e. ” a surgical letter”, again, please read the standard jury instruction for whether or not the claimant’s  evidence and amount of proposed future expense is likely to be allowed to be considered, much less accepted by, any future jury.  See, Personal Injury Mediation:  The “Surgical Recommendation Letter” Issue, April 26, 2012.

And, consider, now, for any “future” claim, the reasonable life expectancy of the claimant.  (And, the jury instruction that such a table that is admissible is still only a guide to the jury’s common sense.)

Next, should you have a loss of earnings or earning capacity claim, take the time to examine the reasonableness of any “past” loss you wish to propose.   Wages or income that are not lost directly due to use of holiday or vacation pay usage is still a loss.  And, injured persons can have a loss of capacity to earn, even if not employed.

However, counter that assertion with believability.  Was the loss really necessary?  And, reasonableness.  Is the claimant’s loss of time truly the result of an injury?

More importantly, consider the realities of proving any lost earnings or capacity claim.  (i.e,,Self-employed persons present far more evidentiary and tactical issues with their tax returns and their Schedule C histories than those few hourly wage loss claimants you may be fortunate enough to represent.)

And, consider the impact of asserting any such future earnings loss on the over-all believability of your remaining claim.  For example, if it is a struggle to show any past loss of earning or ability to earn, how much credibility will a future loss have?

Now, the hardest part of completing your verdict (and your argument to any jury).  The intangibles.  “Pain and Suffering”.

First, begin by NOT using that word, “pain and suffering”  in your evaluation to yourself or others.  Instead, read, carefully, the standard jury instruction of EACH of the elements of any intangible damages that you, objectively, feel both applies and CAN BE REASONABLY PROVED.

Next, assign only a reasonable value (that you can picture yourself actually stating to a real jury) to each of the separate, individual and applicable intangibles permitted your claim.

Then, do the same for any such intangibles that reasonably can be proven to extend into the foreseeable future for a provable period of time.

Or, as at trial, consider alternatively, a range of such “suggested values” for each intangible that you really believe you could argue/defend to a jury.

Then, total both the PAST and FUTURE damages (or their ranges) and look at them, carefully and objectively, together.   This is what your jury will be doing.

Finally, test your proposed future verdict:

Does the total of your suggested fair damages (or their suggested range) pass the “smell test”? 

Would you comfortably and easily be able to face your future jury and “demand” that these are the LEAST/MOST damages they CAN consider?

If not, adjust as necessary!

Does your projected verdict compare with reality?

Consider obtaining a sampling of the jury verdicts published (or not published) that are truly similar to your claim.   (These are easily available through services and phone calls to peers.) How does your proposed verdict compare to those sources?

At the least, inquire as to what your peers think about your evaluations of each of your claims’ elements?  (If you are not in a firm, ask a friend or friends to lunch and use them as your test panel.  But try to find objective viewpoints!)

And, if you are married, also ask your spouse.  He/she may be the most objective source you can find!

In summary, if you will only take these very simple steps of evaluation and objective testing, you can have one very, very reliable personal injury damage evaluation.

And,  better you will have, at least part of, that all-important negotiation goal:  your likely DAMAGE  range-of-verdict should your mediation be unsuccessful to compare with offers made or received at mediation.  See, Mediation Negotiation Technique:  Create A Negotiation Plan, October 16, 2012.

But, best of all, when you then bring that same jury verdict to mediation for your opening statement and for use in  discussions with your client, your opposition will be hard-pressed not to carefully consider any final lesser settlement proposal that  represents a reasonable discount from your demonstrated damage verdict to be obtained at trial.

Try it just once.  I promise, you will,  thereafter, never be without this simple tool of negotiation.

Merry Christmas and Happy Holidays!

Dan, from Palm Bay, Florida.


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