If you have ever been sued or had a claim against you, you may have thought the other lawyer was just a rotten, good for nothing (add your own additional phraseology here). But beware, the lawyer appointed to defend you by your insurance company may be worse.
I was recently involved as counsel for the Plaintiff(s) in two sizeable legal malpractice cases. In both cases – at the suggestion and urging of the defense – we mediated the cases. In at least one of those cases, we used a mediator that the defense suggested and urged that we use.
In both cases, we spent a full day in mediation and in both at the end of the day the defense was essentially still offering nuisance value for the claims. In both cases, the mediator(s) were exasperated from an unproductive day of mediation caused by the bad faith negotiating tactics of the defense. In both cases, even though the defense suggested mediation, they apparently felt sure their pending motions for summary judgment were going to be granted and that both cases would simply go away.
Well, in both cases those motions for summary judgment were denied and the defense was faced with a rapidly approaching trial date. In each, we took several additional depositions after mediation failed, including costly and out of town depositions of expert witnesses.
Both cases eventually settled shortly before trial. One for more than we likely would have settled at the mediation and in the other for a number that was very close to what we would have accepted in the mediation.
Because both cases were on contingent fee agreements, our office did not make any additional money between the failed mediations and eventual settlements. Additional costs from these drawn-out cases reduced our clients’ net settlement proceeds. The only big winners in both cases were the defense law firms. They billed and collected – I would argue unnecessarily – tens of thousands, if not more, in fees.
Who does this ultimately hurt? The insured. That would be you if you are a defendant. By billing additional unnecessary dollars in fees and by causing the defense experts to bill for additional unnecessary time and costs, the ultimate value of the claim is unnecessarily inflated. This becomes part of the client’s or insured’s claims history, thereby causing the client or insured to pay higher premiums going forward.
I have a similar ongoing situation in which I represent a woman in an injury case. I put a settlement package together fairly quickly and sent it to the insurance company. After three months of following up and hearing nothing in return, I wrote once more asking them to make an offer or to expect me to file suit. After giving them another month to respond, I followed through and filed suit. Two days later, I heard from the apologetic adjuster, who had just started looking over the file and asked to get back to me. I told her that as long as we were talking, I wouldn’t seek a default and she didn’t even have to assign the case to counsel. Within a few days, she called with an offer, and while the number would not settle the case it was a decent starting place. A few days later I received an email from a defense lawyer who has been assigned to the claim, followed shortly by an extensive set of written discovery propounded by the defense. Now, so he can make a few bucks, we will have to do paper discovery and take depositions, go to pretrial, etc., etc., etc. This is a case that could and should have been settled relatively quickly – even pre-suit – but now because there is a defense lawyer involved, that is not likely to happen.
I am not afraid to work hard. I’ve been doing this for almost 35 years. I can, have, and will continue to work my files and matters as necessary. When that involves getting them ready for trial and trying the case, so be it. However, in all three of these matters, it would seem to me that they were going to settle, and the defense lawyers never really intended to try the cases. They simply wasted a lot of time and money and, in my opinion, hurt their clients more than they helped them in the long run by running up fees and expert witness bills, thereby drastically increasing the ultimate gross values of the claims. This is the defense M.O. these days. I am not the only Plaintiffs’ lawyer who sees and recognizes this.
If you find yourself as a defendant, individually or on behalf of your company or employer, keep the defense lawyers on a short leash. Make them let you know what is going on in the case and insist on a realistic assessment of what is happening and what might happen. Don’t be afraid to demand this from them. While you may think the Plaintiff’s lawyer is a no good, dirty, rotten SOB, your own lawyer (hired by your insurance company) might be your worst enemy as he milks the file to make more money for himself.
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