September 01, 2015

Sidebar: Learn to Say No

Bad cases never get better, only worse.

Kenneth P. Nolan

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I once had a perfect case, or so I thought. My client was honest, hard-working, a good family guy. You might have heard of the type—almost extinct these days. Liability was obvious, with witnesses, photographs, and a comprehensive police report detailing admissions of negligence by the despised defendant. My client’s injuries were significant and verifiable, with enough plates and screws to build another Verrazano Bridge. So when the insurer suggested mediation, I immediately agreed. That night, while all snug in my bed, visions of dollar signs danced in my head. Even my wife noticed: “What’s wrong? Why are you so happy?”

After decades of litigating such matters, I could recite the script by heart—the mediator will beg and scold; we’ll all roll our eyes and emote like some washed-up Hollywood hypocrite. We’ll storm out, slam the door, come back, sigh a million times, and reluctantly settle with handshakes and pats on the back all around. My lone fear was that we’d have to return a second time to squeeze a few more nickels from the insurer. It was all planned.

I know that negotiation is theater, all lawyers merely players, each with a part and lines. So when the mediator disclosed the initial offer, I sat stunned, dumbfounded. The defendant, it appeared, had a different script with a different ending. My dream of savoring Pigeon de Bresse at Le Bristol in the Eighth Arrondissement vanished. Now I won’t be able to afford a french fry, never mind a three-star Michelin restaurant.

I asked the mediator, a good friend, what was I missing. Nothing, she assured me. They just value it much lower. There was debate about venue, comparative fault, and excellent recovery from surgery, but nothing surprising. I wiped my eyes and stormed back to our office to prepare for trial, a few months away.

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