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Plaintiff's Trial Preparation

What happens if the offer is too low?

James W. Balmer

Falsani, Balmer, Peterson, Quinn & Beyer 1200 ALWORTH BUILDING

DULUTH, MN 55802

(218) 723-1990 -Tel

jwbalmer@duluthtriallawyers.com

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Since 1973, Jim Balmer has represented thousands of people in all

kinds of litigation, including jury trials, workers’ compensation trials

and hearings, social security disability hearings, and appeals in those

areas. He has handled car crash, slip-and-fall, work site injuries,

defective product claims, dog attack, liquor liability claims and other

kinds of bodily injury matters. Jim has lectured at various seminars,

primarily in the areas of trial tactics and workers’ compensation

issues.

Jim is admitted to practice before all Minnesota and Wisconsin courts, both state and Federal,

and has tried cases throughout both states. He has argued cases before the Seventh United States

Circuit Court of Appeals in Chicago and the Eighth United States Circuit Court of Appeals,

headquartered in St. Louis.

Jim is listed in the most-prestigious “Best Lawyers in America” as a personal injury specialist

representing both plaintiffs and defendants (the only lawyer to be so recognized in this part of

Minnesota). In August, 2016, he was named “Duluth Plaintiff’s Lawyer of the Year” by “Best

Lawyers,” a designation bestowed on only one lawyer from Duluth area annually that recognizes

unusual skill and competence in the field.

Martindale-Hubbell, our nation’s leading legal services directory, has rated Jim’s legal

ability/ethical standard at the top (“AV”). Jim as been selected as a “Minnesota Super Lawyer”

in both personal injury and workers’ compensation and has been listed as a Leading American

Attorney during the same time period. He has had the additional distinction of being designated a

“Top 40” Super Lawyer in both areas at various times, as well.

Jim has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy since

1986 and by the Minnesota State Bar Association since 1989, the first year it began certifying

trial specialists. Wisconsin does not have a system of trial specialist certification. He has been

honored as an Advocate by the American Board of Trial Advocacy since 2002.

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Jim was named the 2010 Volunteer Attorney of the Year for the Sixth Judicial District by the

Volunteer Attorney Program. The award recognizes the lawyer who has given most generously

of his or her time and talents to provide free legal help to lower income residents of Northeastern

Minnesota.

Sailing, jogging and downhill skiing are Jim’s favorite recreational pursuits. He is active in his

local Roman Catholic parish. Jim currently serves as the vice president on the Animal Allies

Humane Society board and also serves on the Duluth Bethel Society board.

Current Employment Position

Founding Partner

Areas Of Practice

Personal Injury

Workers’ Compensation

Certifications/Specialties

Civil Trial Specialist (National Board of Trial Advocacy and Minnesota State Bar Association)

Bar Admissions

Minnesota, 1973

U.S. District Court District of Minnesota, 1974

U.S. Court of Appeals 8th Circuit, 1985

Wisconsin, 1984

U.S. District Court Western District of Wisconsin, 1985

U.S. District Court Eastern District of Wisconsin, 2008

U.S District Court of Appeals 7th Circuit, 1986

Education

University of Minnesota Law School, Minneapolis, Minnesota, 1973

J.D. University of Minnesota-Duluth, Duluth, Minnesota, 1970 B.A.

Professional Associations and Memberships

The Best Lawyers in America, 2005 – Present

Minnesota Association for Justice (MAJ), 1985 – 1994 Board of Governors

Duluth Trial Lawyers Association (DTLA), 1988 – 1989 President

Minnesota State Bar Association (MSBA)

11th District Bar Association

State Bar of Wisconsin

Douglas County Bar Association

American Board of Trial Advocates

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TABLE of CONTENTS

INTRODUCTION ...........................................................................................................................6

You can never be certain your claim will settle, but KNOW you will go to trial if

it doesn’t—the logical conclusion is that trial preparation is essential. ...................6

Beginning with initial client contact, everything you do with the claim needs to

assume trial of the action will take place. ................................................................7

Moving quickly towards trial spares your client unnecessary anxiety while

convincing defendants there will be a trial absent a serious effort to

resolve the claim. .....................................................................................................8

INVESTIGATION .........................................................................................................................10

Getting a crash reconstructionist to the crash scene will preserve evidence and aid

building an impregnable liability claim. ................................................................10

Interviewing witnesses is relatively inexpensive and can preserve evidence that

might otherwise vanish with time. .........................................................................10

Legal research on evidentiary issues and jury instructions should begin with initial

client contact—use a generic trial brief as a guide. ...............................................12

COMMENCE LEGAL ACTION SOONER, NOT LATER .........................................................13

Forum selection is plaintiff’s best opportunity to gain advantage over defendant

by enabling better selection of judge, jury or both ................................................13

More jurisdictions use expedited dispute resolution that effectively increases

pressure on defendants to settle once suit has been commenced ...........................13

Employ only the discovery essential to learning which parties are proper and what

defenses they will use at trial .................................................................................14

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TABLE of CONTENTS (continued)

MEDIATION IS NOT AN OPPORTUNITY TO BEG ................................................................15

Most insurers use settlement discussions to assess plaintiff’s desire to settle ...................15

The more forthcoming with evidence the plaintiff is at mediation, the less

opportunity for success at trial there will be ..........................................................16

Do not mediate while summary judgment is pending .......................................................16

ONCE A TRIAL DATE IS SELECTED BY THE COURT, REFUSE TO CONTINUE

THE CASE.........................................................................................................................17

Approaching trial increases pressure on the parties to settle .............................................17

Insisting on the original trial date makes trial preparation easier ......................................17

Schedule all expert depositions to occur as close as possible to the trial date ...................17

Producing your motions in limine and trial brief as part of your mediation

submission increases the likelihood of settlement at an acceptable amount .........17

DISCLAIMER

The following materials and accompanying Access MCLE audio CLE program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability.

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INTRODUCTION

These materials and my presentation are the distillation of 43 years of trying bodily injury

claims of all kinds in courtrooms in Minnesota and Wisconsin, some won and some lost; as well

as settling many more over that same period of time. They describe how I manage cases coming

into my practice at this point.

You can never be certain your claim will settle, but KNOW you will go to trial if it doesn’t—the logical conclusion is that trial preparation is essential.

1. Whether a claim settles short of trial is ultimately up to the client and the claims

representative, two individuals the lawyer cannot completely control.

Most of us are able to control most of our clients through the manner in which we

dispense our assessment of the situation and our advice in light of it. But, some clients refuse to

follow our advice at critical moments during the claim’s management; sometimes, at the point

where that control is needed most. One factor that will convince them to cooperate with the

advice we give is their satisfaction that we have fully prepared the matter for trial, if necessary.

The claims representative for the liability insurer takes instructions from the employer

and is compelled to follow the internal procedures of the insurer, regardless of what the

claimant’s attorney says or does. The more experienced the claims representative, the more

likely that representative will listen to us at the critical moments in the life of the claim. One

way to get the matter to a more experienced claims representative is to institute suit. Besides,

institution of suit results in appointment of defense counsel with whom to work and

communicate, resulting in better communication and frequently a more realistic assessment of

the claim’s value.

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If we succumb to the entreaties of the claims representative to make a demand early in

the claim, then the insurer may set a reserve that is too low to resolve the claim later, when the

full extent of the harm to our client has been learned. Instituting legal action early, before

making a demand unsupported by full knowledge of all the circumstances of the client’s injury,

makes establishing a low reserve less likely.

2. All clients need to be evaluated as potential trial witnesses.

This evaluation actually has two facets: their credibility and their willingness to proceed

to trial if necessary. Taking the latter factor first, if your client is unwilling to go to trial if

necessary, perhaps the client has not fully thought through the real extent of the injury or the

manner in which it occurred. If your client doesn’t make a credible witness, you should

reconsider handling the claim in the first place.

3. Learn whether potential client already gave a potentially-damaging recorded

interview to the claims representative.

If not, the client will probably conclude it is time to retain counsel. If so, you need to

obtain a full transcript, then look for ways to exclude it from evidence. Minnesota has a statute

invalidating recorded interviews with the injured within 30 days of the occurrence. Minn. Stats.

Sec. 602.01. It is also possible the interview violated the claimant’s self-incrimination privilege.

Beginning with initial client contact, everything you do with the claim needs to assume trial of the action will take place.

1. Clients who expect a trial make better clients.

Already noted is their likely higher credibility. Additionally, they will expect a trial and

so will do what is needed to properly prepare for trial regarding medical treatment, deposition

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preparation and preparation for the adverse medical examinations. If you are also preparing for

trial, they are more likely to trust your advice because you are doing what is expected of you.

2. Counsel who manage the claim on the assumption trial will occur can expect larger

settlement offers from insurers.

Most lawyers handling injury claims are loathe to go to trial due to cost and uncertainty

of outcome, among other reasons. Any lawyer who actively prepares for trial is taken as a more

serious threat by the insurer. A settlement proposal made by such a lawyer is taken more

seriously, so a miscalculation by the insurer is less likely. Much, though not all, trial preparation

can also be used to prepare for the settlement negotiation that usually occurs closer to the trial

date so it makes a more convincing settlement position during negotiations. If we have been

acting as though we will try the case throughout preparation, the insurer will begin to believe we

will actually try the claim to conclusion unless we are offered enough to settle.

3. Counsel who are fully prepared for trial have a better shot at winning the trial, if

there is one.

If there is no settlement, then being fully prepared feels better than having to begin trial

lacking proof of critical elements of your claim. Sometimes, the insurer unexpected undervalues

the claim. Sometimes, our clients refuse to listen to us at the most critical juncture of the pretrial

preparation. At such times, being fully prepared for trial is essential.

Moving quickly towards trial spares your client unnecessary anxiety while convincing defendants there will be a trial absent a serious effort to resolve the claim.

1. The longer a claim’s resolution takes, the more likely your client is going to accept a

lower amount to settle—delay favors defendants.

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No insurance defense attorney I know has ever denied the value of the lapse of

time. Waiting for trial builds frustration in Plaintiffs, especially if we do nothing to push the

case towards trial. Frustration can be an impediment to settling for a reasonable amount.

2. The longer a claim’s resolution takes, the more anxious your client becomes,

consequently the more difficult to manage whether for settlement or trial.

If the client grows more anxious, the risk of taking any amount offered to be done with

the claim rises. The anxious client begins to lose confidence in his/her lawyer. Such anxiety can

prevent us from obtaining the best result for the client, later to be blamed for the poor outcome.

3. Moving decisively towards trial convinces the claims representative to extend the

best offer before settlement is beyond reach.

Pushing the case towards a trial date reassures the client that his/her lawyer is unafraid of

trial. It also convinces the claims representative that Plaintiff will really try the case absent the

best offer, sometimes prompting the claims representative to extend that offer before pretrial

preparation expenses make the offer impossible to accept.

4. The lawyer can save time in trial preparation by standardizing trial preparation

and obtaining assistance from non-lawyer staff. Use of generic motions in limine and generic briefs supporting them is increasingly

common among insurance defense counsel. We should adopt a similar practice.

Paralegals can line up and subpoena fact witnesses; arrange for testimonial video

depositions without close supervision; can locate and arrange material useful to cross-examine

adverse medical examiners; can create helpful visual exhibits for use at trial and even prepare

initial drafts of motions in limine, trial briefs and jury instructions.

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INVESTIGATION

Getting a crash reconstructionist to the crash scene will preserve evidence and aid building an impregnable liability claim.

1. If he is properly certified in motor vehicle crash reconstruction, he could do a

download of the EDRs from the airbag systems of the involved vehicles.

Most motor vehicles on American streets and highways have event data recorders in their

passive restraint systems that aid the reconstructionist in calculating the actual speed of the

involved vehicles. The typical defendant will exaggerate his speed, even if unintentionally. The

EDR will help establish the actual speed of the involved vehicles. Sometimes, this information

will remove liability as a defense and may even provide convincing evidence of cause between

the collision and the harm sustained by plaintiff.

2. The reconstructionist could use computer-generated animation to create visual

displays of the incident to help the jury better understand what defendant did to

cause the crash.

We all know 21st Century jurors expect visual depictions of evidence. Computer-

generated animation may be essential to the plaintiff’s case for that reason alone. But, it can also

illustrate for the jury precisely how careless the defendant actually was in bringing about the

collision that harmed plaintiff.

Interviewing witnesses is relatively inexpensive and can preserve evidence that might otherwise vanish with time.

1. Witnesses recall important details closer in time to the extent they saw—

texting? Turn signals displayed?

The plaintiff has the burden of proof and thus the burden of fully investigating the

circumstances of the injury. Most, though not all, independent witnesses are willing to help by

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answering questions about what they saw or heard. The longer the lapse of time between the

event and the interview, the less likely they are to volunteer useful information because they will

grow less self-assured about what they recall. Interviewing them as soon as possible can create

helpful evidence before it disappears.

2. Better to have an independent investigator interview the witnesses and report the

results prior to obtaining a verbatim statement.

Personally conducting the interviews renders counsel a potential key witness in the case,

a disqualifying development. Having an employee conduct the interview may not be much

better, if at all. Instead, have an independent investigator locate and interview all potential

witnesses. If only the results of the informal interview are reported to counsel, they are arguably

work product not liable to disclosure. See Fed. R. Civ. P. 26(b)(3). Once the result of the

interview is known, counsel can then determine whether a verbatim recorded statement ought to

be obtained to preserve evidence known to the independent witness at the time of the interview.

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Legal research on evidentiary issues and jury instructions should begin with initial client contact—use a generic trial brief as a guide (click here).

1. Acquiring an understanding of the legal issues surrounding liability and the

admissibility of evidence needed to establish a prima facie case can often help

decide whether the claim is worth pursuing. If so, it can help direct initial

investigation.

2. Submission of a trial brief along with motions in limine at the final pretrial

conference may educate a judge lacking significant civil trial experience.

In Minnesota and Wisconsin, most state court judges being appointed are criminal

prosecutors or public defenders, considered qualified because the largest portion of their case

load will be criminal and juvenile, areas in which they are experienced. The next largest area of

responsibility they will have is family law—dissolutions and custody. When these judges

encounter a civil bodily injury claim, they have trouble understanding the procedural, evidentiary

and substantive issues because they are all new. Regardless of their sociopolitical orientation,

any such judge will read a trial brief submitted by either party with care in order to inform as

fully as possible in a short time. Federal judges spend most of their time on civil matters and so

are quite well-informed on these issues, but nevertheless typically insist on trial briefs submitted

by all parties in every action by local rule or order.

3. Using a generic trial brief saves time in trial preparation and alerts counsel to

potential evidentiary issues often overlooked by defendants.

Regardless of whether defendant’s attorney submits one, plaintiff’s counsel MUST do

so. Such a submission can also form a useful basis for mediation. Careful and thoughtful

preparation of one from the generic form helps focus thought on the evidence to be submitted by

all parties and aids in thinking of ways to exclude the adversaries’ submissions outright or to

neutralize such evidence if it cannot be excluded from the trial.

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COMMENCE LEGAL ACTION SOONER, NOT LATER

Forum selection is plaintiff’s best opportunity to gain advantage over defendant by enabling better selection of judge, jury or both

1. Jurisdiction

a. State court actions give more control over jury selection, USDC actions give

judicial officers more familiar with civil disputes

b. If the defendant is from a different state than the one in which the claim arose,

plaintiff has the option of selecting which state offers a better forum

2. Venue statutes in many states allow the plaintiff to sue at the courthouse closest to

where the claim arose, or the one closest to the defendant’s residence

More jurisdictions use expedited dispute resolution that effectively increases pressure on defendants to settle once suit has been commenced

1. Expedited Litigation Track (ELT) or “rocket docket” settings

The USDC for western Wisconsin had a calendar that brought most civil matters to trial

within six months of filing. Next door in Minnesota, the court system adopted an experimental

court setting system for simple cases probably worth less than $100,000 modeled after the

“rocket docket” from USDC Western Wisconsin. Such a calendaring system requires energetic

and aggressive plaintiff’s counsel but usually results in settlements worth more because of the

increased pressure on most insurers to settle in order to avoid an early trial date.

2. Magistrate Settlement Conference in US District Court

The Minnesota USDC mandates a settlement conference conducted by a US Magistrate

Judge in every action after discovery is concluded and prior to trial. All such conferences

SHALL be attended by a claims representative vested with full authority to settle the claim in

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full, even if the claims representative(s) are based outside the United States. Most such claims

representatives are loathe to leave the courthouse without a deal in their pockets.

3. Arbitration v. Mediation

Some parties are willing to submit a dispute to summary jury trial or arbitration as a

speedy and inexpensive dispute resolution mechanism. Most will only agree to

mediation. Choose your mediator with great care – your choice may determine whether the

matter settles.

Employ only the discovery essential to learning which parties are proper and what defenses they will use at trial

1. Bare-bones interrogatories

These will inform you about witnesses and how to locate them. Demanding a written

description of defenses rarely yields any information of value, but might provide an opportunity

to defendants to refine their version of events that improves their preparation for trial.

2. Short depositions

Defendants’ counsel typically take depositions because their clients require them. Most

good lawyers do not need extensive depositions to prepare for trial. We should already know

what defendant will probably say at trial.

Taking an exhaustive deposition will give defendant a “dress rehearsal” for trial, enabling

the defendant to deal with the natural apprehension about trial more effectively. Thorough

depositions also give defendants’ counsel a better feel for plaintiffs’ trial plans.

3. Plan deadlines in the pretrial order with expert depositions and requests to admit in

mind

Many courts regard Rule 36 Requests to Admit as discovery that is subject to the

discovery deadline. If the action is significant and local custom calls for discovery of expert

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witness opinions, make certain the discovery deadline does not effectively bar such depositions if

you decide you need them.

MEDIATION IS NOT AN OPPORTUNITY TO BEG

Most insurers use settlement discussions to assess plaintiff’s desire to settle

1. Force the claims representative to attend the mediation

Already noted above is the US District Court magistrate’s settlement conference that

must be attended by the insurance claims representative. Most state court judges are happy to

excuse the claims representative from attending, though. Doing so removes a strong incentive to

the insurer to resolve the claim short of trial. If defendant’s counsel has managed to excuse the

claims representative’s attendance, you should indicate plaintiff will also be available by

telephone. Doing so prevents your client’s exposure to informal pressure to settle for modest

amounts.

2. If you have prepared your client for trial as a default outcome, your client will be

better prepared to resist the temptation to settle for less at mediation

Clients are usually better prepared emotionally to reject a low settlement demand if they

have been prepared to testify at trial and believe their lawyer is also prepared to try the

action. Just as insurers will try to discern whether a plaintiff is susceptible to settling for

anything to avoid a trial, they will also try to settle with a more determined plaintiff they have

found is prepared to try the case if need be. Such a plaintiff is more likely to obtain a higher

settlement at mediation.

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The more forthcoming with evidence the plaintiff is at mediation, the less opportunity for success at trial there will be

Many lawyers are so anxious to settle to avoid trial that they show everything they have

to opposing counsel. Doing so makes obtaining a favorable outcome at trial far less

likely. Counsel should not reveal any more information than absolutely necessary until it

becomes clear a settlement is likely and the additional information will result in a better

settlement result.

Do not mediate while summary judgment is pending

Summary judgment motions are far more common now than formerly. Typically,

defendants make them at the end of discovery, at about the same time mediation is

scheduled. Few insurers will extend a serious offer after they have paid their lawyer to make

such a motion. Mediation while such a motion is pending is a waste of money and

time. Refuse to do it.

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ONCE A TRIAL DATE IS SELECTED BY THE COURT, REFUSE TO CONTINUE THE CASE

Approaching trial increases pressure on the parties to settle

Whether plaintiff or defendant, any lingering reluctance to agree to settle is eliminated by

the presence of the jury panel in the courtroom.

Insisting on the original trial date makes trial preparation easier

Most plaintiffs depend on expert witness’ testimony by video deposition, a complicated

and expensive proceeding to arrange. Postponement may make resetting impossible. Don’t risk

it.

Schedule all expert depositions to occur as close as possible to the trial date

Defendants usually set their expert depositions well in advance of the trial date. If

plaintiff sets his/her depositions after defendants’ experts have already given their depositions,

then plaintiff’s experts can testify in anticipation of what they know defendants’ experts will say.

Producing your motions in limine and trial brief as part of your mediation submission increases the likelihood of settlement at an acceptable amount

Doing so creates the impression in defendant that plaintiff is fully prepared for trial and

stands a chance of prevailing. The chance of settlement is increased.