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Mediation: One Sample for a Perfect Plaintiff’s Counsel Opening Statement?

April 15, 2016

One of the most sought-after templates for use by new lawyers approaching their first formal mediation is an example of  a particular party’s counsel’s opening statement.

Such suggested samples have merit (and are probably valuable for even experienced lawyers seeking a new approach).  However, it must be recognized that any such proposed example-anything is only that: one sample/one opinion!  And, in reality nothing in law or mediation is ever “one-size fits all”, much less “perfect”.

For example, which party? What subject matter?  What elements of proof?  What is the timing of your mediation?

Any final product of any mediation opening statement will also have to consider the relationship and personalities of the parties and their counsel, time constraints at the formal mediation, prior negotiations and many other specific factors; all subjects of prior or soon-to-follow articles by this author and obviously, others.

(I have even questioned the real importance, much less the necessity, of any mediation opening statement.  See, i.e. ” A Radical Idea?  Consider Waiving Your Opening Statement”, September 20, 2011. )

However, knowing that most counsel believe their clients expect some opening statement, and  bowing to obvious public demand, here is one proposed opening for your consideration.

For this sample, I will propose an opening statement outline for Plaintiff’s counsel in a generic Personal Injury matter.

(Preamble:   One of the most important opponent uses for any mediation is their simple ability to observe (and evaluate ) your client!  They know many jury decisions hinge on the simple likability/believability of your client.   Thus, at your important pre-mediation conference with your clients  among other matters, you should always advise them of the form, content, and reasoning  behind your anticipated opening and the extreme importance of their positive demeanor during the entire mediation.)

First, introduce yourself and those you represent.    Sound trite?  Remember, there are likely important people present at mediation who have never met you or your clients.  This initial pause allows for your opposition to connect faces with names they have before only heard about.

(Note:  Your opposition will also be evaluating you,  They will be judging whether any judge or jury will find you effective and credible should a future trial become necessary!)

And, this simple beginning, as all speakers should know, further allows you to clear and modulate your voice by starting with a subject that should be hard to forget!

Next, set the mood of conciliation.  State that you and your clients come to  mediation, fully prepared and intending to resolve the matter.  This step is a critical component to your chances of success by raising your opponent’s resolution expectations.  It means that today, despite the past, if they also make an equal effort, common ground may be found to avoid any necessity for a trial by judge or jury.

Also state that you and your clients understand that there can be/are valid differences of opinion between the parties and so compromise will be necessary by all for any chance of mutual success.

Note:  This is the carrot.  Now, please avoid the stick: your urge to state that you are “prepared to try the case”.  Such a “threat” is totally contrary to the spirit of mediation you will need for resolution and, frankly, your opposition will/should already know whether you are so-prepared or not by your efforts well before mediation.

Next, set the tone of welcome to your party opponents for their interested attendance and anticipated mutual effort toward resolution,

This tone specifically must be addressed to any insurance representative.  Likely the insurance representative is the one person who had to make the biggest effort to appear!  Accordingly, always respect their experience and professionalism at what they do even if you may disagree with many of their positions.

And, despite what historical bias you may feel, generally, in this dispute,  recognize that any insurance professional’s mere presence at your mediation is the single most important factor you can obtain in reaching any resolution. Likely no one else in their room has any decision-making authority! Thus, be grateful they are present and interested in making an effort at resolution of your dispute.

Also, project your own positive demeanor and body language.  When you ask something be given, it will always be necessary to give something in return.  Simple courtesy and respect, along with a little praise and appreciation for your opposition’s efforts are small things to offer for much larger returns.

Next, complement your opposing counsel.  And, thank them for their efforts to permit this important opportunity to all of avoiding the cost and uncertainties of trial.

Note that your praise gains respect for your opposing counsel while concurrently planting two important seeds for thought for the parties/insurance entities:  their practical costs savings  in resolution AND the unknowns of the future.

Next to the opposition decision-makers, guess who you most NEED in the other room?  A friendly opposing counsel (with whom, hopefully, you have been cooperating for not only your preparation, but theirs) can be critical for everything from honestly confirming your assertions on fact and proof, agreeing to likely outcomes in judicial rulings and final outcomes, to dropping any usual resistance to ending the litigation!)

Next, confirm, that the parties have previously obtained/exchanged all of the pertinent information necessary to a resolution at THAT mediation.  Frankly, if you can’t affirmatively state this, your mediation resolution chances are already compromised.  Surprises to your opposition are embarrassing to those from whom you are seeking favor!

And, also confirm that all legal issues of the dispute are resolved or agreed upon.  If you have still pending unresolved legal issues that one side or the other will ask to be determined pre-trial, any mediation success that day may be impossible.  It is unknown finality by some future, but imminent jury, that empowers any success in mediation.

Next, in a short and focused way, now present your proposed vision of the fact and law leading to the future verdict in your dispute.

(And, always use a sample of your likely upcoming verdict to let your opposition follow your presentation!)

The order of your case presentation?  It depends.

Some will prefer to comment first upon “liability” (negligence and legal causation), of the two generic burdens of proof, “liability” and “damages”, among other reasons, simply following the standard form verdict.

I usually recommend you begin your “focus” of your case with the stronger of the two choices.

For example, if you have a slam-dunk on liability-responsibility, start there.  Fix your oppositions future verdict responsibility by outlining clear points of proof of why “all  should concur” that the evidence requires a verdict for your client.

(This order of presentation is also preferred for those cases in which the damages to your client are less than clear, (delays in reporting or treatment, pre-existing conditions, etc.) or insubstantial.  Juries are always inclined to award something if the opposition was clearly negligent.)

But, then also use only a few undisputed points to “remind” why. It is never necessary to present your entire proof if it is really that clear; just a few key points to suggest the likely verdict so as to reach damages!

Having established this”non-issue of liability”,  quickly move on to the “only real issue for discussion and compromise, the likely verdict outcome for fair compensation for the related damages.”

On the other hand, however, if liability is the weaker part of your case, then begin with the “obvious injury and damages” of your client, first!  Then it becomes, “the only real remaining issue is the degree of defendant’s responsibility”.

(And, to allow the opposition to follow your “proof” always present a chronologically correct medical timeline to objectively demonstrate  the direct timely relationship of  your client’s medical treatment to your opposition’s negligence.  Note:  If you cannot demonstrate this, you may need to re-consider if damages is the better part of your case?)

This choice of presenting your client’s damages, first, are focusing on the known strategy that juries want to compensate injured people, if they like the person and legally can.

Accordingly, always prove your client IS injured, early.  IF the verdict is then for, or even partially for your client, your proposed verdict on damages, first, will demonstrate graphically the ultimate dollar damages to be awarded depending upon only the subsequent degree of responsibility!

Accordingly when  some substantial damages are of little dispute, only after first emphasizing the strengths of your damage case, do you secondarily focus your opponents on your lesser/weaker proof of their responsibility.

Remember, your strength with an obviously injured client is that you only have to convince your opposition that a future jury will likely find SOME negligence as exposure for some damage negotiation.

(General presentation caution: Never, mis-state or overstate any issue of fact or law!  Stick only with your strengths of your proof. If any proof is not a certainty, omit it or admit the qualification of it.)

Credibility is your mediation presentation goal; the opposition knows the facts and law as well as you.

Next,  specifically concede a few clear obvious points against you!  Yes, Virginia, you can concede points at mediation. In fact, you must if you wish any credibility.

Admissions are totally disarming to the opposition who rarely encounter such candor.  Thus such honesty makes your  other mediation positions easier to accept.  And by the way, as confidential, no admission can never be used against you should mediation fail!

If liability has any real weaknesses, say so.  Remember, you want the opposition to believe you on other more important matters.  Agree that any given jury MIGHT not agree with your claim, but MANY will.  And, admitting  comparative negligence will always be an issue for SOME juries can be quite valuable (assuming there is some evidence, etc.)

Likewise, if you have clear damage issues, admit them and focus on those not in question. Again, agree some juries/judges might punish your proof (or lack of proof) for a proof weakness, while others will not.

But, denial of clear proof, even argument on weak points, at mediation is usually seen as simple unreasonableness that will cost you disproportionately.

End your focus-fact/law outline by filling in your likely verdict .  This use of your future verdict is a powerful tool.

Seeing “their” actual verdict form being filled in, reasonably, is usually a reality check to your opposition that if resolution is not obtained, a verdict/judgment is coming!

Then, confidently propose an opening mediation settlement offer that is LESS than the likely verdict you just demonstrated!  And, hopefully, even less than any prior offer.

No opposition is going to voluntarily pay you what you MIGHT be able to obtain in a verdict, some day.

And, a unilateral reduction of your last, lowest offer, sends the exact message you wish to succeed at mediation:  “We are here to end the litigation (by compromising)”.

(Note:  Negotiation is a larger subject for another day.  However,  do not destroy the reasonableness factor you have otherwise worked so hard to establish in your opening by a now obvious unreasonable initial demand!)

Now end by thanking your opposition, again, for their attendance and attention to jointly seeking a voluntary resolution to the ultimate benefit of all (except maybe the lawyers?)

My final general suggestions:  Keep it simple; Keep it brief and focused. Keep it positive.

Remember, you are not arguing  to a jury. You are merely summarizing for your opposition the obvious key points of proof already in their hands to direct them to find credibility to your reasoned belief presented of the likely outcome at trial should trial be necessary due the failure at mediation.

(Admin Note:  Likely your mediator may offer you a “rebuttal” following your opponents opening statement.   My suggestion:  use this final opportunity only to insert a position forgotten in your opening raised by the defense.  However, strongly resist “arguing” any OTHER given point made by the defense in their opening. (They know, already, you do not agree with many of their weaker points.)

In summary, this is simply one suggestion for one template to try.  But, it includes my philosophy about the distinct differences between opening statements for mediation versus those used for trialSee,  “Mediation Opening Statement: Try a Different Approach”, January 31, 2013.)

Good luck with your first effort.  And, sorry for the unusual length of this article.  I tried to keep the outline concise; but as  an outline format, some explanations simply became necessary to explain the segments.

However, please also remember, your mediation successes will always have far more to do with your advance planning, preparation and efforts you make prior to mediation than ANY opening statement.

Dan, from Winter Park/Orlando, Florida.







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