Oct. 29th, 2014

vambot5: (CBX)
I had a mediation today on a pair of my cases, both with same claimant. I never get to do mediations. In case you aren't familiar, a mediation is basically a settlement negotiation with a neutral third-party helping out. Most of my work is on my boss John's cases, and for the important ones he will always do the mediations himself. For the rest, his partner Brenda always does them. Over time, I came to realize why. The other attorney I work for, Greg, describes mediation as "totally gravy" for defense attorneys. Basically, it's really easy billing for a minimal amount of work. Without a mediation, to do a settlement evaluation and send an offer, you get to bill like an hour, then for each response/counteroffer maybe 15-20 minutes. For a mediation, though, you get to sit around for hours and bill for it, with most of the time being spent just waiting while the mediator talks to the claimant. If you are able to bring other files to work on while you wait, you can easily double-bill your time and bill maybe six hours for a three-hour mediation. As a result, the partners are reluctant to give up the opportunity to an associate attorney.

In this mediation today, I represent a trucking company. The claimant had a claim from 2011 where he had a knee injury. I didn't represent the company in that originally, the insurance company handled it in-house and negotiated a sort of pseudo-settlement, basically an agreed order for the amount of permanent disability while leaving the claim open. That meant that he was able to file a motion to reopen his claim if he thought he had suffered a change of condition for the worse, which is exactly what happened. I also represented the company in a 2014 claim for a low back injury. When he filed the motion for the 2011 claim, the adjuster asked me to handle that as well, since I was already handling the 2014 claim. At the mediation today, we hoped to settle both of the claims.

There was a significant complicating factor. In 2014, Oklahoma created a new administrative agency to handle workers' comp claims. Previously, claims were handled in a court system under the judicial system. This meant that the old claim was under the court system, the the new claim was under the administrative system. The administrative system is new and generally regarded as claimant-hostile, whereas the court system is regarded as claimant-friendly.

In these cases, the claimant is an older guy, native american-looking, and extremely overweight. When he had the knee injury in 2011, the doctors diagnosed him with a torn meniscus, but also diagnosed him with severe osteoarthritis as a result of his obesity. It was my position that if he had suffered a change of condition, it was due to the arthritis and not in any way related to our injury. I think I had a strong argument there, but I also had to face the fact that in the pseudo-settlement he did for the original injury, he wasn't represented by an attorney and he agreed to an amount of permanent disability far less than what he would have been awarded if the case had gone to trial. The court very well might have let him reopen his case just for the opportunity to get more permanent disability that probably should have been paid in the first place. If so, we would have had to send him back to a doctor, who would have recommended more treatment, possibly even a knee replacement. Easily tens of thousands of dollars in additional medical bills, thousands in additional temporary disability while he was under active treatment, and thousands if not tens of thousands in additional permanent disability. Even though I thought I had a good case in denying the change of condition, I had to admit that there was significant exposure.

In the back case, I didn't feel I had much exposure, really. This was under the claimant-hostile system. The claimant had a minor back injury, no surgery. However, he did end up with permanent work restrictions such that his employer could not take him back as a truck driver. As such, I had exposure for vocational rehabilitation (even though I don't think the claimant intends to ever return to work). I didn't think he had much to stand on in the way of permanent disability, but I had to admit that I was facing thousands in voc rehab.

At the mediation, I started out by telling the mediator flat-out what my full authority was for the back claim. I lied, of course, as I'm sure he expected. I kept a couple thousand close to my chest in case it was necessary, but I didn't expect it to be. I thought the number I gave was a reasonable upper limit, and, ultimately, they accepted it. The claimant's attorney knew that if he forced that issue to trial, he was unlikely to come out with more than what I was offering.

The knee claim was more complicated. This wasn't a simple case of how much disability the court might award. This was a denied motion to reopen that the court had not yet ruled on, and so there was an actual risk analysis of what might happen at trial. I had a strong argument for the court flatly denying the motion to reopen, in which case the claimant would get nothing. But if I lost, I would be facing tens of thousands of dollars in exposure, possibly hundreds of thousands if a knee replacement happened and the court awarded pain management for the rest of his life. We both had to weigh our best-case with our worst-case and determine at what point we were willing to walk away and risk it at trial.

After several discussions on the matter, my client was only willing to to extend authority for $25K for the knee claim. If it was going to take more than that to settle, she was willing to risk our chances in court. I had the impression that the mediator was feeling me on this one, and I told him I could only offer up to $15K. (Often, when the claimant flat-out rejects your offer and insists something higher, you can say "I need to call my client" and bump up into your hidden authority.)

After some wheeling and dealing, I was able to get it done for what I had offered. I came in at $12K under budget, and was able to tell my client that I was a rockstar. My boss was impressed that I handled the whole thing so well, both in terms of managing my client's expectations and coming in for significantly under my authority. My boss, in his dryly humorous way, told me that today I'm a hero, but reminded me that humilty is only one "green envelope away." (The court used to mail its orders in green envlopes--now they're just plain white envelopes with big letters "ORDER ENCLOSED.") That's John's entire legal philosophy, which he learned from our firm's founder--don't get too high, don't get too low, just go out every day and do the best you can for your clients. Today, I got to tell my client (and my boss) that I did a killer job negotiating a settlement. Next week, I'll get an order in the mail and have to tell my client that we lost. Again.

Of course, I would have warned the client in advance that, to steal my boss's catchphrase, "our likelihood of prevailing on this issue is approximately 15%."

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