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November 20, 2019

Key Tips on Prep to Settle the Claim

Summary:

The claimant attorney may have 10, 25, or 40-plus clients and may not be an expert with the nuances of the case like you can be.

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It’s time to settle the most onerous bodily injury case in your inventory. The medicals have been evaluated, and you’ve scheduled a time this week to open the negotiations with the claimant attorney. This three-year-old file is ripe for resolution. The diary is set to flash on your screen. Are you ready for battle?

Perhaps you are ready for some adages first?

Cover all the bases.
Dot the i’s and cross the t’s.
Hope for the best, but prepare for the worst!

Here are some key tips:

  • It is crucial to be prepared for the negotiation from the start. Know your file! The claimant attorney may have 10, 25, or 40-plus clients and may not be an expert with the nuances of the case like you can be. The attorney’s negotiations may even dance around similar injuries of their other clients (neck and back being the most common). Read the medicals in detail. Ask for missing records if something does not add up. Check the doctor’s release notes and enlist the assistance of a handwriting expert if needed (the best argument can often be what the claimant’s own doctor documented hidden deep in the 200 pages of medicals that the attorney glanced over casually).
  • Make a list of your strengths and weaknesses. Understand the direction the attorney will go to argue his key points, and be prepared for counterarguments. (Yes, I understand that your client had quite a bit of pain and suffering as you are stating, but on the release date your client reported a one on a one-to-10 pain scale so your argument the client is still in excruciating pain is difficult to fathom based on what you’ve provided).
  • Don’t get into a dollars-based negotiation. Often, attorneys may try to trick the adjuster into a back and forth of only numbers without regard to the details of the case. Let the facts lead in the negotiation, and the dollars will follow. (Make me understand better why your client deserves a $10,000 increase in the offer; what am I missing in my evaluation based on the medicals you provided me?) Concessions and deviations (when supported by facts) are perfectly acceptable.
  • Sometimes just a call before negotiating can also let the adjuster assess the style and technique of the opponent. Your initial call on the attorney’s demand may let you ask questions to see how the attorney came up with the number. You are not forced to make a counter right away. That initial call may let you know that you need additional preparation. You can also adjust your negotiating style. Remember to be an active listener.
  • Always consider the intangibles. The injuries and treatment are one aspect, but is there aggravated liability, a potential credibility issue for witnesses on either side, permanency such as scarring (valued differently on everyone) or an impact on the claimant’s daily lifestyle following the loss (unable to enjoy life’s pleasures post-accident)?
  • Can your medical evaluation benefit from a claim nurse reviewing the file or an additional doctor’s review to understand the case notes?
  • Patience is a huge factor in negotiations. They do not need to be finalized in one phone call!
  • Remain professional even if your adversary is not. Lack of professionalism can be a barrier to settlement. Your opponent may not have a case he is confident about and can use a harsh tone to try to intimidate the adjuster.

See also: The Switch to Preventing Claims  

A former manager offered me some unique words to live by when negotiating. He would say to the attorney that, at the end of the day, let’s arrive at a number that is appropriate for the case. If it doesn’t make either of us overly happy, that’s fine, as long as we are both equally unhappy!

While you will rarely find yourself performing cartwheels at the culmination of the claim, with the right amount of preparation you can certainly position the settlement closer to your intended goal.

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About the Author

Chris Casaleggio is a liability and risk management professional, having worked in the personal and commercial markets with insurance carriers and third-party administrators. He currently serves in a consulting role working with over 50 insurance clients around the globe.

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