An Eye Injury Lawyer Discusses Conflict Resolution
Make War on the Conflict, Not the People
My book, Winning Personal Injury Cases — and many others involving litigation — use “war” analogies to describe the approach one needs to take: Don’t show weakness; come from a position of strength; strategize for maintaining and escalating pressure on the adversary.
This article explores techniques that can be used to defuse or deescalate conflict. It can help you change the tone of negotiations from an adversarial to a collaborative process. Have you ever turned an adversary into a friend or referral source? Have you ever been able to be the peacemaker while also protecting your client’s interests? If so, you know the special satisfaction of a job well done, while keeping your blood pressure generally within the preferred range.
First, we’ll explore developing a good working relationship with insurance claim adjusters. Next, we’ll move up the food chain to insurance defense lawyers, followed by a discussion of working with clients. The article concludes with a discussion regarding the importance of getting along with judges and their staffs.
Working with Insurance Claims Adjusters
In the course of writing this article, I have taken note of recent and current situations where I called upon my reserve of kindness in order to help my client’s cause. For example, during a recent case I developed a very friendly working relationship with the insurance adjuster. There came a point though during the litigation when the adjuster took a position that seriously threatened my equilibrium. She claimed that I had placed the insurance company on notice of the claim too late and, therefore, there would be no settlement. This adjuster had paid out her policy limit to another claimant in this case. And so, there was nothing left for my client.
My initial reaction was panic. If I had asserted the claim too late, I would need to contact my legal malpractice insurer. I would not only lose the fee on the case, I could expect to see my insurance premium increase. I would also have to pay a deductible. So there was a lot at stake. I searched through the file for the emails I had exchanged with the adjuster and found that I had clearly placed her on notice of my client’s claim prior to the settlement with the other claimant. I breathed a sigh of relief. But this was only the first part of the battle. The adjuster next took the position that emails were not the “formal notice” supposedly required by the policy. I examined the policy and found that there was no such language in the policy. Fortunately, the adjuster quickly backed off her position and agreed to negotiate. In sum, the fact that this insurer had paid out its policy limit to the other claimant was imprudence on their part, not a defense to my client’s claim. They still had to compensate my client for his injuries.
My initial impulse had been to fire off a nasty, intimidating email to the adjuster. Instead, I pointed out the weakness of her position, without any threats of bad faith litigation. It took a lot of self-control to maintain a proper perspective. Fortunately, the insurer backed off, and we were able to settle the claim. Not only did it settle, it settled then and there and for a very healthy amount. The good working relationship I had developed with the adjuster helped cut through the haze.
Even after settlement, my client benefited from this relationship. The client had an urgent need for the settlement money since he was about to leave the country for an extended period. I explained the situation to the adjuster and was told she could not get the money to me before he left. Imagine my surprise and delight when the check showed up the next day via overnight mail. This adjuster had gone to the trouble and expense of overnighting the check to me. She didn’t have to do that. And it all came down to mutual respect and good humor. Because we truly enjoyed our conversations with each other, and because we avoided allowing a potentially bad situation to spin out of control, this adjuster went above and beyond the call of duty to help my client. The result, of course, was a very happy client who will think of me when he or someone he knows needs legal counsel.
After I received the check, I made sure to send an email thanking the adjuster for overnighting it. Saying thank you is big, especially when you no longer need the person you are thanking. This added touch may be just the thing this adjuster will remember if we ever have another case together. It’s all part of building a reputation as a competent, reasonable professional. A lawyer’s reputation is his or her stock-in-trade. I like to think that the way I handled this case boosted my reputation in this adjuster’s eyes.
More About “Thank you”
A while back I retained a Wisconsin law firm to collect a referral fee from a lawyer who refused to pay what he promised. After we collected and the file was closed, I sent a thank you email to the law firm for a job well done. Maybe this will lead to new business and maybe not (probably not). But it felt like the right thing to do and it helped make my day brighter. People always like to be appreciated, especially when they don’t expect it. A gratuitous thank you leaves a lasting, favorable impression.
Savvy clients thank me on a frequent basis. I am happier to work on a file for a client who I like and respect and who I know appreciates how seriously I take their case. And when the client thanks me, I typically thank them back. They are expecting “You’re welcome.” They are pleased to hear instead to hear how much I appreciate their contributions toward our team effort.
Patience is a Virtue
It can take a lot of effort to remain patient with insurance adjusters, especially those who become unresponsive. But the effort you expend to remain patient generally pays off in a big way in the long run. I recently left a voicemail message for a claim adjuster. A few weeks before, we had had a very promising conversation about a settlement. He told me he’d get back to me with an offer by that Friday. A week later I hadn’t heard from him and so I called. I got his voicemail, and so I left a message inquiring about settlement. Still no response.
Some lawyers might become belligerent at that point and either send a threatening letter or email. I decided to wait a respectable amount of time (I didn’t want to appear over-eager) and then called again. Again I got voicemail. Again I left a very neutral message. I made sure to remind him that he had promised to call by the Friday after our first conversation. And I reminded him that this was not my first message. But my tone of voice was professional and I made no threats. I made my point, but without triggering a hostile reaction from the adjuster.
If you make an enemy of the person who holds the purse strings to the settlement, you will regret it. Claims people do not generally settle with plaintiffs or plaintiffs’ lawyers they dislike. They have the power to make your life miserable. Do not tempt them to do this. It’s much easier to wait patiently for the adjuster to get to the file than to litigate the case for months in an adversarial manner. If you negotiate professionally, courteously, and assertively while effectively addressing all questions and concerns, you are probably well on your way to settling the case fairly. If you explain this to your client, they will almost always understand and appreciate your strategy.
Often, the first time you speak with the claims representative about settlement, there will be an excuse for why a settlement offer cannot be made at that time. Do not get frustrated or angry. If the explanation is reasonable, be professional and courteous. You will know you are being strung along if you are confronted with a series of lame excuses. There will be times that the adjuster is just fishing for information or stalling settlement. You will pick up on this when it is occurring. If that happens, it is time to file suit. But that is the exception and not the rule. Generally, if you hang in there, you can find out the insurance company’s position on settlement without having to resort to threats.
Try to think of settlement as a mutually desired goal. Your goal is to settle the case for as much as possible as soon as possible. Most insurance adjusters want to move cases. If you have a good case (strong liability and legitimate injuries), the adjuster probably wants to get the case settled and off her desk. But adjusters have hoops to jump through before they can reach their goal. Help them jump through their hoops. You should cooperate with all reasonable requests for proof. Be ready to address any questions or concerns the claims representative may have. Hopefully the requested information will help the case’s settlement value. If it hurts the case, consider that if the case goes into suit, they will get that information anyway. It may be better to confront problems up front, rather than after months or years of litigation.
Humility and Humor
I approach all communications with insurance companies and their lawyers with a touch of humility, and where appropriate, humor. Often, they are expecting arrogance and self-righteousness from plaintiffs’ lawyers. I try to give them a pleasant surprise. I find this greatly benefits my clients. It is helpful if you can set yourself apart from other plaintiffs’ lawyers. By using humor and humility, you do this. Of course, the humor must always be in good taste. I avoid vulgarity and extreme informality. In other words, I try to keep things light. I can almost always establish a collegial bond with my adversary.
If you respect that they have a job to do, they will respect you in the same way. By trying to prove that you are the Prince of Darkness, you may intimidate some people. You may even get some good settlements. But in the long run I think you do better for your clients if you focus on the velvet glove, rather than the fist lurking inside. If you are competent, the other side will know the fist is there. You want the claims representative to respect you. Be very clear in your resolve to take the case to trial if necessary. Your competence and resolve should be shown by your actions, rather than through threats. During your discussions, be professional and polite, yet forceful, persistent, and assertive–never hostile.
For the most part, insurance adjusters are just trying to do their job and get through their day without endangering their livelihood or raising their blood pressure too much. There are difficult ones among them, but most adjusters respond favorably to courtesy. Wish them a good weekend if you mean it. Your genuine tone will come through. In litigation, as in other areas of life, it is important to be true to who you really are. People can usually pick up on phoniness. So try not to fake it. If you are going to use these techniques, it really helps if you actually are a people person and have generally favorable feelings toward humanity. If instead, you are an insufferable boar, perhaps strong arm, intimidating tactics will work best for you. There are very successful lawyers who approach litigation (and probably the rest of life) this way. For most of us, accessing the kind and gentle side of our personality whenever appropriate is advantageous both for our clients and ourselves.
Working with Insurance Defense Lawyers
Insurance defense lawyers are often coming from a very different perspective from insurance adjusters. This is especially true with those who are paid on an hourly basis. House counsel, who are paid a set salary, may want to move cases efficiently. But law firms who are paid on an hourly basis may be motivated to avoid settlement until the last possible moment. The case is their meal ticket. In that situation, your goals and defense counsel’s will be very different. While I’m not suggesting that you should not cooperate with reasonable requests in this situation, the approach is less focused on reaching a shared goal.
Your contact with insurance adjusters is typically limited to phone calls, letters, faxes and emails. With insurance defense attorneys, you have all of that, but you also have in person contact at certain points in the litigation. Your first such contact may take place early in the litigation at a scheduling conference. These conferences are non-adversarial and present the opportunity to establish friendly, professional relations. Take advantage of that opportunity, especially because the next contact may come in a much more contentious environment.
This next contact will probably occur either in court or at a deposition. For example, if you run into complications during the pleadings and/or discovery phases of the litigation, motions will be necessary. The court may request oral argument. During oral argument, you should make your arguments forcefully, but without rancor or an accusatory tone. Even if opposing counsel is truly disrupting discovery, you can seek the court’s assistance without alienating your opponent. Just state the facts coherently. I see no upside to doing it any other way.
At the next stage, discovery depositions, your efforts to maintain a positive working relationship with defense counsel may be most tested. The discovery deposition is one of the most important stages in personal injury litigation. During the discovery deposition, the insurance company’s lawyer has an opportunity to question the plaintiff in person about the accident and the injuries. Similarly, at the defendant’s deposition, you are able to discover much about the insurance company’s version of the accident.
Do not let the other attorney intimidate you. This attorney may try things he would not dream of doing in court, since no judge or jury is present at depositions. Depositions are usually held in one of the lawyer’s conference rooms. Depositions can be very stressful for that reason. This is especially important if you are relatively inexperienced in litigation. Opposing counsel may try to take advantage of this. Depositions can rapidly become bitter and hostile. Many times harsh words are exchanged between counsel. An inexperienced attorney can easily be intimidated.
During the trial, the opposing lawyer will try to appear to be fair in front of the jury. But in the deposition room, the action takes place in relative privacy, with only a stenographer present to record the testimony. If the deposition takes place in opposing counsel’s office, he will be on his home ground and you will be in unfamiliar territory. This can add to the fear and anxiety you may be feeling. But there is hope. Find out, in advance, the name and number of the judge who is in charge of discovery disputes. If a problem arises during the deposition, you can threaten to call that judge. No lawyer likes to be scolded by a judge for obstructing testimony at a deposition. If you show that you are not intimidated, most defense lawyers will back off and the deposition can proceed.
Client Screening: A Peaceful Lawyer’s Guide
We can’t choose all of the participants in litigation. We have to deal with certain insurance adjusters, defense counsel, opposing experts, witnesses, and judges. But, at least to some extent, we can choose our clients.
Maintaining some peace of mind as a lawyer is easier if you can develop sensitive perception of people, especially potential clients. Often a particular client will send signals that cause your gut to squirm and your brain to scream: “Trouble: Avoid!” If the potential client is overtly psychotic, you may wish to terminate the initial phone call as quickly as possible. You could refer this type of individual to a behavioral health evaluation unit for an immediate check-up.
“No Further Involvement Is Appropriate”
Try to engage new clients in an open-ended discussion about his or her expectations, goals, main concerns, family situation, and background. Ask open-ended questions whenever possible in an effort to encourage the client to share information. Ask yourself these questions for any new client that steps into your office:
Would you want this potential client on your jury?
How would you react if you saw him or her approaching you on a busy city street—or in a dark alley at 3:00 a.m.?
When handling a simple task or engaging in a mundane conversation, is he unable to stay “on message” or follow the thread of the discussion?
At a ball game, concert, or other large event, would the potential client stand out in the crowd as highly unusual? Does the potential client constantly complain, or seem angry about everyone and everything? Does she seem completely out of place, ill at ease, nervous, and unable to form or maintain even minimal eye contact?
Does she laugh or cry at inappropriate times? Does he make statements or ask questions that seem totally off topic, highly personal, accusatory, or completely out of context?
Is he overly talkative, emotional, or boisterous or nonverbal, “flat,” or impassive?
If you were an airport screener, would you want to pull this person aside for secondary screening?
If you were in an elevator, bus, or other confined space with the client, would you feel extremely uncomfortable because of her dress, language, facial expressions, mannerisms, or for any other reason?
Although social mores have changed, and body piercing, tattoos, large jewelry, and outlandish dress may be socially acceptable in some situations, these styles do not play well for insurance companies, judges, and juries. Do you really want to represent someone who wants to sue over a small scar, despite the fact that she has ten ear rings in each ear, a lip piercing, and a nose ring? Think about how that will play before a jury.
If the client comes across as unlikable, trust your gut. If you don’t like this person, the jury probably won’t either. You can’t expect to succeed in litigation with an unlikable client, no matter how hard you work on the case and no matter how good a lawyer you are. Defense lawyers are trained to emphasize these negatives and exploit them for all they are worth.
Dropping a Case
Sometimes cases must be dropped. There are many possible reasons. Perhaps you find eyewitnesses who believe your client was at fault. Maybe you and the client have an unmanageable personality conflict. Perhaps you suspect the case is faking or exaggerating the injuries. In each case, you must terminate the lawyer/client relationship. You must drop the case well in advance of the statute of limitations deadline so that the client has a fair opportunity to find new counsel. If you wait until just before that deadline, it is very unlikely that any other lawyer will take on the case. No lawyer wants to be forced into filing suit under intense time pressure. If your delay prevents the client from finding a new lawyer, the statute of limitations will probably expire, possibly exposing you to a legal malpractice lawsuit.
Not only must the case be dropped before it is too late, it must be done in a certain way. There is a right and a wrong way to drop a case. I always call the client to explain the situation. If, instead, you start with a “Dear John” letter, it is likely the client will be upset and even offended. I made this mistake once, and that is all it took for me to realize the folly in this approach. A gentle phone call will leave the client feeling respected, especially if you take the time to answer all questions. Even clients you drop will bring you new business if you treat them right. Once you have explained things on the phone, it is then necessary to document the conversation with a letter, so that the client cannot later claim that they didn’t know the case was dropped. A sample letter for dropping a case appears as the Appendix at the end of this article.
In this age of instant and global communication, it is more important than ever to treat clients with respect. With websites like www.yelp.com, dissatisfied customers/clients now have the opportunity to vent about restaurants, used car dealers, lawyers and more. Wouldn’t you rather that this publicly available information shine a bright light on you and your practice? If you disrespect a client, intentionally or not, you can expect your reputation to suffer by way of nasty Internet complaints.
Communicating With Clients
The lawyer and client need to maintain clear lines of communication to minimize unpleasant surprises. There is no guarantee your client will tell you everything you need to know, but open communication will help. There are times when, for example, clients will tell you that they have been in no prior accidents, and later you find that they are mistaken. Most likely, they just forgot. Other times, crafty clients, who don’t understand the power of subpoenas, think they can hide their past. By explaining how subpoenas can uncover their past, you increase the chances that you will get an accurate history up front.
Negotiations: A Peaceful Lawyer’s Guide (Use Appropriate Tactics)
Why use an atom bomb when a hand grenade will do the job? I find often that it is better to hold a little something in reserve when dealing with insurance companies. If you drop a bomb, you can never take it back. In other words, if you are aggressive from the outset, it is hard later to take a softer approach. Aggressiveness usually brings an aggressive response. If you start with a hand grenade, with an atom bomb in reserve, you can negotiate with confidence. And you make the other side wonder what is up your sleeve.
I recently attended a mediation in which I intentionally held back the atom bomb for a key moment. The defense doctor claimed that my client had not suffered a herniated disc or even a bulging disc. I had the MRI films which clearly showed a disc deformity. I saved these films for the moment in the mediation when I felt that I had pushed the negotiations as far as they could go. The settlement offer was firm. By then showing the films to the mediator, I shattered the credibility of the defense doctor. That doctor’s remaining opinions thus also lost believability. The mediator pushed the defense attorney to increase the offer substantially and the case settled. Had I started with the atom bomb, the offer might not have ever gone so high.
Silence is Golden
Many times what you don’t say is more important than what you do. As the years have passed, I have learned to sense when not to respond to a letter, fax, email or comment. Not everything that can be said should be said. Sometimes your silence will prompt a response that is useful to your case. Sometimes your silence will make the other side wonder what is on your mind. Sometimes a little mystery can work to your client’s advantage. What you don’t say can’t hurt you. Silence can be golden.
Here’s an example. I sent a settlement package to the insurer in a case with minimal policy limits, $15,000. My case was worth around $25,000.00, in my estimation. So there was no way I was going to accept less than policy limits. I did not make an explicit settlement demand in the letter. The claims representative could read between the lines though. She knew very well that I wanted the limits. So when she called to discuss settlement, we both knew without it being said what my feelings about settlement were. She made a very weak attempt to get me to take a bit less than $15,000. All I had to say was, “How can I do that?” and her house of cards crumbled. If I had made the demand explicitly, would she have taken a stronger stand? There is no way to know because I didn’t ask her. I believe my silence gave me a slight, but important psychological edge. She could tell she was not dealing with a rookie, and didn’t really even try to work me over. It’s a subtle point, but one that years of experience helps you sense.
Working with Judges and Their Staffs
Most judges you will encounter are competent and reasonable to deal with. There are many, unfortunately, who do not fit this mold. Some judges can be extremely difficult. They may have forgotten what it was like to be a trial lawyer, with all the pressures and problems. They may dislike your client and/ or your case. They may have a prejudice against people who sue for personal injuries. They may try to intimidate you into settling the case, just so their docket is cleared. Or they may simply be angry, intolerant individuals who are absorbed with their own power.
Judges have an enormous amount of power and can make our lives miserable with it. They can communicate to the jury how they feel about the case. Jurors look to the judge for guidance. So the last thing you want is to alienate the judge. On the other hand, you also have to stand up for your client. And that can involve ruffling feathers. It’s a fine line we have to tread as trial lawyers. If you feel that the judge is running roughshod over your client and your case, you have to take a stand . You are duty bound to zealously represent your client. That means confronting a difficult judge when she is trying to push you into action that is not in your client’s best interest. This can be an intimidating experience. But if you recall that the judge is just a person, you can find the strength to do this. The judge will back down, at least somewhat, if you are firm and correct in your position. Of course, you must be respectful of the judge, even when forcefully challenging her position. Trial work is not for the faint of heart.
One way to alienate a judge is to treat her staff with disrespect. These folks can also make our lives miserable. They can make or break the case. So take extra care to be courteous and careful when calling chambers. Judicial staff people can also get caught up in the power they have. Since they have easy access to the judge, they can influence that judge and the information she sees about your case. So if you are discourteous to the judge’s secretary, law clerk, bailiff, stenographer or tipstaff, you may have done your client great harm. If a staff person tells the judge that you were rude during a phone call, this will influence the judge against you.
Any conversation with a judge or his staff is an important one. You must prepare properly before you make the call or show up in court or in chambers. Thoroughly familiarize yourself with the possible issues. Approach each such event with the proper reverence both for the judge’s position and for his ability to influence the outcome of the litigation. I find that when I am approaching an especially important or potentially stress inducing phone conversation or in-person event, I make sure my tank is full. In other words, I don’t make important phone calls just before lunch or before my first cup of coffee in the morning. The decisions judges make often depend at least in part on how their stomach is feeling at any particular moment. We are all influenced by our bodies. So prepare yourself in advance for those big calls. You are going to need all your strength to deal with these situations. Similarly, before an important contact with a defense lawyer, insurance adjuster, doctor or client, be sure you are physically ready. These contacts can be highly adversarial. If you are not physically well, it is easy to become angry. So eat a little something and sip some coffee first. This will reduce the likelihood that the litigation will degenerate into open warfare.
It is important during trial to treat everyone in the courtroom with respect. This applies even to defendants and their witnesses who you think are lying. You can challenge their credibility without overtly attacking the witness. Some lawyers think that the best way to expose a witness’s lack of credibility is through sarcasm. Both in the wording of the question and in the tone, they may try to communicate their feelings to the jury. Insurance defense lawyers do this routinely with personal injury plaintiffs. Many plaintiffs’ lawyers do the same. This can backfire. If your jury sympathizes with the witness, and feels that the attack is unjustified, it’s bad news for the lawyer and his client. I try to avoid this wherever possible by remaining relatively neutral in the tone of my questions. I never ever use the word “liar” or “lie” in questioning a witness. There are studies that suggest that the person who uses these words is disfavored by the judge and/or jury. You can show the jury inconsistencies without expressly calling the witness a liar. They will get the message. And tone down the sarcasm. There is even an objection that lawyers make when the opposing attorney is overly aggressive. “Objection, your Honor! Counsel is badgering the witness!” But we’re getting a little ahead of the game. My next article, scheduled for the December issue, will discuss what happens when the peaceful lawyer goes to trial.
Letter to Client Declining Client’s Case
[addresses, salutations, etc.]
This will confirm our telephone conversation earlier today in which I advised you that after a thorough investigation, I have reached the conclusion that I do not wish to work further on your case. I am making no charge for the services I have rendered. I regret that I will not be representing you in this matter and appreciate your having referred it for my consideration. You should continue to seek out other legal counsel if you wish to continue to pursue this case. You should do so quickly since there are time limitations applicable to your case. If you do not file a lawsuit by October 3, 2012, you will not thereafter be able to file a lawsuit for your damages. If you find a new lawyer, I will be happy to turn your file over.
To purchase the online version of this article—or any other article in this publication— go to www.ali-cle.org and click on “Publications.”