Tag Archives: attorney

Misunderstood Role of the Attorney

Personal observations have demonstrated that some insurance companies have some very serious misunderstandings about the attorneys they hire.

I. The company’s defense attorney is not its adjuster.

Let’s say the first notice of a claim was via a lawsuit against an insurance company and that the insurance company immediately hires a defense attorney to respond to the suit — but the insurance company does nothing thereafter to investigate the claim because it thinks that, somehow, its attorney will investigate the claim and then tell it what to do. This type of thinking may ultimately provide a great reason for the lawsuit to be amended to include the company’s bad faith.

  1. Hiring an attorney to handle the claim does not shield the claim file (based on attorney-client privilege) from discovery.
  2. The insurance company is, in this case, the attorney’s client, and the attorney does not owe the insurance company’s policyholder the duty of good faith and fair dealing in handling the claim.
  3. The insurance company owes its policyholder the duty of good faith and fair dealing, and the duty can’t be delegated.
  4. Every state has rules set up regarding who can be licensed as an adjuster, and, invariably, attorneys are exempt for limited purposes — it is not a blanket exemption for attorneys. For example, in Oklahoma, persons not deemed adjusters or required to obtain license include: “a licensed attorney in Oklahoma who adjusts insurance losses from time to time, incidental to the practice of law, and who does not advertise or represent that he or she is an adjuster” and “a person employed solely for the purpose of furnishing technical assistance to a licensed adjuster, including but not limited to photographers, appraisers, estimators, private detectives, engineers, handwriting experts, and attorneys-at-law.”

See also: A Key Point on Limiting Attorneys’ Fees

II. The defense attorney the insurer hires for the liability lawsuit against its policyholder is not “your” (the company’s) attorney, even though “you” (the company) pay his bill.

The attorney the insurer hires generally has fiduciary duties to the policyholder, not the insurer, even though the insurer is footing the bill.

I have heard managers say, “Well, why did our attorney not tell us that the policyholder was not really covered?” I’d say, “Because he or she is not our attorney. Telling you that his client, our policyholder, was not covered would violate attorney-client privilege.” While the insurer can get raw information from the attorney, do not expect him to point out coverage weaknesses that may allow the insurer to withdraw from paying for the policyholder’s defense costs.

Even if the insurance manager would really like to know this information, don’t expect a competent attorney to set himself up for a legitimate complaint to the bar and to subject himself to sanctions for his ethical violations to his client, your policyholder.

III. The coverage attorney should not be the insurance company’s defense attorney.

Perhaps the coverage opinion given by a defense firm may be based on developing its defense business. Lawyers are human, so, to avoid any appearance of conflict, use different sources for coverage opinions and defense. Getting a coverage opinion from the same group that will be defending the suit based on the denial (which was based on the coverage opinion) is not only a poor claim practice, it is a good way to increase the company’s defense costs. Lawyers who defend insurance lawsuits are no more experts in insurance than lawyers who defend doctors are medical experts. Hire your defense lawyer to perform in what should be his area of expertise: court.

See also: Top Reasons Why Injured Workers Seek Attorneys  

IV. Insurance company corporate counsel is not its defense.

Corporate counsel is generally an employee of the insurance company, and he or she holds the law license; the insurance company does not.

  1. Insurance companies are not authorized to practice law, not even pro se.
  2. The corporate counsel is not very likely to be on the “panel counsel” list of the insurer’s E&O carrier.
  3. The insurance company is not protected by any legal malpractice coverage under the insurance company’s E&O policy.
  4. Such coverage is likely prohibited by the language in the insurance company’s E&O policy, and it is the E&O carrier that will choose the insurance company’s defense counsel.
  5. Corporate counsel did not attend law school and obtain a law license so the insurance company may get a cut-rate deal on its legal defense fees.
  6. Defense fees are a part of defense costs, while salaries are generally not. Corporate counsel is generally paid a salary as an exempt employee and not an hourly defense fee.
  7. Corporate counsel may be called as a witness or representative for the insurance company.
  8. Good defense attorneys (trial lawyers) are a specialty, different from corporate counsel. Treating them as the same would be like hiring an ENT physician for a kidney infection — yes,  he or she is licensed to practice medicine, but that is not his or her most competent area of practice.

Corporate counsel is not the proper attorney for an insurance company’s proper attorney to respond to a suit against the insurance company.

New Attack Vector for Cyber Thieves

It has become commonplace for senior executives to use free Web mail, especially Gmail, interchangeably with corporate email. This has given rise to a type of scam in which a thief manipulates email accounts. The goal: impersonate an authority figure to get a subordinate to do something quickly, without asking questions. The FBI calls this “CEO fraud,” and a surge of these capers has resulted in scammers stealing a stunning $750 million from more than 7,000 U.S. companies from October 2013 through August 2015.

Here is an example where the scammer targets an attorney from a big city in the Northeast.

Attack vector: The scammer gathers intelligence about real estate transactions handled by an attorney and drills down on a specific deal in which the law firm is handling the purchase of a $450,000 home for a client. The scammer learns this attorney is in the habit of using his personal Gmail account interchangeably with his law firm’s email. As the transaction approaches the final step, the attorney’s paralegal receives a spoofed email that appears to come from her boss. She instantly follows a directive to cancel a check for $450,000 that she is about to mail and instead wires the funds into an account designated by the scammer.

More video: Scammers exploit trust in Google’s platform

Distinctive technique: The funds initially get routed to another law firm in the Southwest. A subordinate in this law firm also appears to have been spoofed by the scammer to be prepared to move funds once again, this time into an account set up in a U.S. branch office of Sumitomo Bank, a giant global institution with headquarters in Tokyo. “At this point, it is not likely the $450,000 will ever be recovered,” says IDT911 Chief Privacy Officer Eduard Goodman. “Once a transfer like this is made, you can’t really unring that bell.”

Wider implications: U.S. consumers are well protected by federal law, and banks usually will reimburse individual consumers victimized by cyber criminals. However, banks are under no legal obligation to offer any relief to businesses, large or small, that have been tricked like this. Most of the $750 million lost in documented cases of CEO fraud has most likely been absorbed by the duped business entities.

Infographic: More Americans living with data insecurity

Excerpts from ThirdCertainty’s interview with Goodman. (Answers edited for length and clarity.)

3C: Businesses are losing one heck of a lot of money to CEO fraud.

Eduard Goodman, IDT911 chief privacy officer

Goodman: Yeah, absolutely. This one was for about $450,000. There is another woman with a ballet company who recently lost about $100,000. It’s significant chunks, let’s put it that way. And because this is happening in a business setting, it’s a little bit different in that your bank won’t stand behind you. It’s caveat emptor. There is no consumer protection. When something like this happens to your business, you’re out of luck.

3C: Why aren’t suspicious transactions flagged more often?

Goodman: The government will tend to go after companies for anything that may have to do with consumer violations. But when businesses impact other businesses, the government doesn’t do a damn thing, even if the victim is a really small business and they’re essentially consumers in and of themselves. Banks have that unfair advantage to say, ‘Well, sorry, should have flagged it, but we just process it for you.’

3C: So by using free Web mail this attorney sort of invited spoofing?

Goodman: He kind of comingled accounts, that’s the thing. He had his law firm’s email, and he also had a personal Gmail account. He would send emails from both accounts. That is something that has become a very common practice. He probably had previously emailed himself something from his actual work account into his Gmail account. This scammer probably got into his Gmail account, and then made the connection to his law firm account.

Then it was off to the races. The paralegal gets the wire transfer request from an email that’s very close to an authentic law firm email except there’s an extra letter in the domain name. It looks very credible.

3C: Could this have been avoided?

Goodman. Yes, by taking the extra 45 seconds to make a phone call. Pick up the phone and verify things instead of getting caught up in the workday.

An Open Letter on the Oklahoma Option

I’m the founder and CEO of WorkersCompensationOptions.com (WCO), a company dedicated to workers’ compensation (WC) and its legal alternatives. This letter is intended to quell the concerns of employees in our client companies—employees who may have been distressed by the recent (mostly negative) publicity from ProPublica and NPR regarding options to WC in Texas and Oklahoma.

In case you only saw one installment from the Insult to Injury series, I’ll provide a quick summary. In 2014, the project’s authors started to assimilate massive amounts of data from their research concerning each state’s (and the federal government’s) WC system. In March 2015, the authors began releasing articles with an indisputable premise: Collectively, these systems need improvement.

That commendable beginning eventually gave way, however, to a hypothesis that is supported neither by reality nor by the overwhelming quantity of data the authors provide. Their conclusion (that employers are in cahoots with insurers to pressure attorneys, anonymous doctors and legislators into discarding the lives of an unfortunate few for the sake of bolstering corporate profits) completely misses the mark in pinpointing why so many WC systems are broken beyond repair. In fact, attorneys and doctors put at least as much pressure on WC systems as insurers, and any attempt to depict the medical and legal communities as innocent bystanders in the WC feud is simply too naive to be taken seriously.[1] I do not doubt the authors’ sincerity in addressing a serious societal problem, but I also do not believe they are equipped to understand the problem they sought—however earnestly—to demystify for their readers. Worse yet, I fear they have positioned themselves in the WC space in a manner that is only likely to retard the implementation of practical solutions.

This letter is prompted by the article on Oct. 14, 2015, which painted an inaccurate—even an irresponsible—picture of both Texas nonsubscription (TXNS) and the Oklahoma option (OKO). As that article’s title (“Inside Corporate America’s Campaign to Ditch Workers’ Comp”) is lengthy, I’ll shorten it to CDWC going forward.

Texas Nonsubscribing Employees: What Can We Learn?

Texas is exceptional in the WC world because it has, for more than a century, offered employers a viable alternative to WC. Of approximately 380,000 employers in Texas, roughly two-thirds subscribe to a traditional WC system; the other third are nonsubscribers who develop their own models. That’s about 120,000 different systems, and there is plenty to be learned. We’ve seen various organically grown components develop from these disparate systems, many of which superficially resemble WC. Despite those similarities, however, industry experts understand how counterproductive it is to make unilateral comparisons between TXNS and WC.

The authors of CDWC didn’t get that memo.

Of all the various lessons learned from diverse TXNS models, one runs counter to conventional WC dogma: Employers can protect themselves while delivering superior care for employees at a fraction of the cost of WC. Eliminating the inflated costs associated with abusive practices that run rampant in WC is a critical component of that particular lesson.

Because the CDWC authors insist on judging TXNS through the lens of WC, TXNS looks to them like a system that would appeal to skinflint employers who simply do not care whether their employees get hurt. However, because employees of nonsubscribing companies can sue their employers for tort, the decision to opt out of WC is likely to be penny-wise and pound-foolish for employers who do not take measures to ensure the safety of employees. The CDWC authors’ failure to unpack the importance of tort negligence means many readers will come away from the article without understanding that a typical $50,000 payout in WC could easily be either $0 or $5 million in TXNS—depending on who is at fault for the accident. Even more disappointing is CDWC’s attempt, in a one-sentence paragraph, to gloss over one of WC’s most dangerous shortcomings: the extent to which the no-fault arrangement between employers and employees has removed incentives for safety in the workplace throughout the country.

If you are an employee of one of our Texas nonsubscribers, rest assured that your employer has every reason to minimize workplace accidents and to take very good care of you if an occupational injury occurs.

In a nutshell, your interests are aligned with your employer’s—another critical lesson we’ve learned from TXNS.

Oklahoma Option Employees: A Whack-a-Mole WC System Led You Here

ProPublica and NPR harp on a consistent theme throughout the Insult to Injury series: WC is broken. We at WCO agree, and Oklahoma may provide the single best example of how and why a state’s WC system becomes unsustainable.

The WC ecosystem is made up of five major communities: insurance, medical, legal, employer and employee. Abuse within the system by any of these communities leads to adjustments to the boundaries of the system. Throughout the Insult to Injury series, the authors go out of their way to sidestep the discussion of systemic abuse. They even attempt to dismiss fraud by citing a study that minimizes its role. Abuse and fraud in WC are, in some ways, analogous to speeding on the highway: Almost all drivers abuse the speed limit, but very few are issued citations. Similarly, the cases of clear-cut fraud in WC only reflect a small portion of the amount of abuse going on. But even if we allow the authors to exclude all instances of clear-cut fraud from the WC conversation, we are still left with rampant abuse driven by insidious systemic incentives.

For decades, abuses and inefficiencies within the WC system have led to each of the five communities touting the need for major reforms—at the others’ expense. Real reform threatens each community, which leads to stalemates in negotiations. Major upheaval has been avoided via the compromise of pushing and pulling the system’s boundaries, resulting in a decades-long game of whack-a-mole being played across the nation. If one voice cries, “Data shows an alarming trend in opioid abuse,” that mole gets swatted by requiring more medical credentials for prescribing pain killers. When another shrieks, “Overutilization is surging,” that mole is whacked through costly and time-consuming independent medical examinations. When someone else observes, “Our disability payouts are higher than neighboring jurisdictions,” that mole prompts us to lower disability payouts. Immediately, a fourth voice shouts, “Pharmaceutical abuses make up 8.4% of total costs,” and that mole persuades us to introduce drug formularies. But there isn’t even a moment of silence before another voice remarks, “Our analysis shows dismemberment payouts in this jurisdiction are lower than those of our neighboring jurisdiction.” That mole gets whacked by proposing legislation to increase dismemberment payouts—legislation that is dead on arrival.[2] At some point, we have to realize the moles are multiplying faster than we can whack them. (If my commentary doesn’t apply to other jurisdictions, I’m happy to restrict it to Oklahoma and Texas because writers can best serve their readers by acknowledging the limitations of their own expertise.)

Even if we concede that the changes detailed in the paragraph above aren’t necessarily bad (which I’m not conceding; I’m just trying to be polite and move the argument along), they demonstrate a persistent pattern of outcomes, inclusive of abuse, inherent in any hierarchical bureaucratic system. Regulators are busy reacting to entrenched abuses while market participants find new and exciting ways to game the system. This futile game of whack-a-mole is endless.

The Sooner State had a front row seat to witness what TXNS accomplished—both the good and the bad.[3] With that first-hand knowledge, the Oklahoma legislature has finally provided the state—and the country—with an opportunity to see whether real change can restore function to a malfunctioning system. While WC stakeholders assure us they are only a few more whacks-at-the-mole away from making WC hum, Oklahoma lawmakers have written a new chapter in the history of workplace accident legislation. The OKO is neither WC nor TXNS.

The brilliance of the OKO is that it doesn’t attempt to overhaul a broken WC system. The legislators effectively stepped away from that decades-old stalemate. Instead of an all-out overthrow, they left WC in place and created an option for employers who were willing to try something new—which is exactly how WC itself was introduced a century ago.

Because the OKO is substantially modeled on TXNS, it is easy to see why the CDWC writers conflated the two in their analysis. The errors in CDWC concerning ERISA’s applicability, employee benefits and appeals committee processes in Oklahoma are all presumably honest mistakes made by writers who, in their zeal to distinguish TXNS and the OKO from WC, failed to distinguish TXNS and the OKO from each other.

Nevertheless, it’s important for employees to understand that TXNS varies dramatically from one employer to another, and many of the rules concerning TXNS do not apply north of the Red River.

Although the CDWC authors misleadingly couple TXNS and the OKO with respect to ERISA’s applicability, ERISA plays no direct role in occupational accidents in the OKO.[4] We’ll be happy to get you a legal opinion on that, but for our purposes regarding CDWC, take my non-legal opinion as on the record. If others disagree, they should go on the record, as well. While ERISA has served employers and employees well in TXNS, its role in the OKO is only implied (if that). We are free to use it where we wish, as long as we are compliant at the state level.

Presumably tied to their ERISA misapplication, the CDWC authors assert that “benefits under opt-out plans are subject to income and payroll taxes.” Such tax advice is unusual from investigative journalists without citation, and I have asked the authors to share their source. Although the jury is still out on this tax issue, it is a point the CDWC authors must distort to substantiate their otherwise baffling claim that the workplace accident plans of OKO employers “almost universally have lower benefits.”[5] If any OKO plans really do offer benefits that aren’t at least as good as those provided by WC, they’re illegal. That’s how the legislators have written the law, and it’s what they’re dedicated to achieving for workers, regardless of obfuscations invoking TXNS, ERISA and unresolved tax implications.

The authors of CDWC also completely misrepresent appeals committees for at least a majority of OKO employers. The authors overlook a dramatic improvement to employee protection that the OKO makes to TXNS when they claim that appeals committees in Oklahoma work analogously to appeals committees in Texas: “Workers must accept whatever is offered or lose all benefits. If they wish to appeal, they can—to a committee set up by their employers.” That’s dead wrong. Executives at each of our OKO employers are fully aware that, in case of an employee appeal, the employer has nothing to do with the selection of the appeals committee panel members or the work they complete. The process is independent from the employer and extremely fair.[6] The CDWC authors would do well to read Section 211 of the law more carefully.

On the subject of benefit denials, I’ll share a single data point from our OKO book: To date, we have denied exactly one claim. This is a nascent system, so we must be very careful in drawing actuarial conclusions. Still, our company has led more employers from traditional WC into the new OKO than any other retailer, so we have a bit of credibility to offer on this subject. The point of the system isn’t to deny benefits to deserving employees but to ensure benefits are delivered more efficiently. The system is working.

The CDWC authors only provide one OKO case study, Rachel Jenkins. Strangely, they lump Jenkins in with four TXNS case studies. The Jenkins case is still being tried. We will withhold opinions—as we hope others would—until a more appropriate time.

As a reminder, while the OKO law is stronger today than ever, if it were to be deemed unconstitutional by the Oklahoma Supreme Court, we would have 90 days to get everyone back into traditional WC (per Section 213.B.4.).

Next: Vigilance and Diligence

My comments are mine and mine alone. I do not speak for any associations or lobbyists. I have no interest in debating those who inexplicably assume that any alternatives proposed to a failing system must stem from sinister motives. However, I encourage anyone (from prospective clients to employees of existing clients) with questions or concerns to call me.

Another option for learning more is to click here and watch a formal debate regarding the OKO. This footage was shot in September 2015. It features Michael Clingman arguing against the OKO while I, predictably, argue for it. One thing you can’t miss in that video is my desire to oust most attorneys from the scene. To help explain, I’ll adapt a quotation from John F. Kennedy (who was discussing taxation) to my own area of concern (the well-being of employees): “In short, it is a paradoxical truth that employee outcomes from increased WC protections are worse today, while economic results suffer, and the soundest way to create higher and better standards of living for employees is to eliminate these abused protections.” For philosopher kings, the theory of the OKO may not sound as good as the theory of WC, but when it comes to practical realities the results demand everyone’s attention.

To summarize my primary criticism of Insult to Injury, it simply hasn’t done enough. The story it tells is insufficient and smacks of partisanship and ideology, two biases that ProPublica’s journalists allegedly avoid. WC is substantially more complex than a corporation-out-to-exploit-its-workforce short story. Ignoring abuse in each of the communities in a five-sided WC debate demonstrates a lack of journalistic impartiality and a stunning deficiency of perception. Moreover, to my knowledge, ProPublica hasn’t crafted any relevant suggestions for legislation, simply leaving its readers with the vague and implicit notion that federal oversight is needed. If that is the goal of Insult to Injury—to provide one-sided, emotional yarns alongside a treasure trove of data, hoping it will all spur some federally elected officials to create real change at long last—then I suspect ProPublica will still be holding this subject up to the light of opprobrium upon the retirement of each of the series’ authors.

We do not aspire to win over the authors or even their followers. We will focus our energies each day on providing the best workplace accident programs for employers and employees alike. Our results should speak for themselves.

Finally, I am not an attorney, and nothing in this letter should be taken as legal advice.

Sincere regards,

Daryl Davis

Footnotes:

[1] With medical providers, overutilization is always a concern. Click here and watch the video from the 12-minute to the 15-minute mark for a detailed description of rampant WC abuse by surgeons who provide unnecessary and damaging back procedures. If the workers weren’t disabled prior to the surgeries, many were afterward. As for the legal community, simply view slide 73 of the NCCI’s 2013 Oklahoma Advisory Forum. WC disability payments, which is where attorneys get their cut, were 38% higher in Oklahoma than in neighboring states—not because jobs are 38% more dangerous in Oklahoma than in Kansas or Texas but because Oklahoma attorneys are 38% more effective at gaming the state’s WC system.

[2] Alabama SB 330—which was prompted by Insult to Injurynever got out of conference. From what I could gather, lengthy negotiations between several different interest groups led nowhere, with the Alabama Medical Association at the center of this particular stalemate. Not surprisingly, the two special sessions called by Alabama Gov. Bentley in 2015 were strictly focused on the state’s budgetary crisis; this bill was never discussed.

[3] The final Texas case study offered in CDWC deals with Billy Walker, who fell to his death while on the job. The upside to TXNS is his estate’s common law right to pursue a tort lawsuit against his employer. The employer could have been ordered to pay Walker’s estate a settlement in the millions, but the employer filed bankruptcy before any such judgment could be awarded, which is plainly an unacceptable outcome. This demonstrates a lack of surety—the single biggest problem in TXNS. OKO addresses this issue in various ways, most notably in Section 205 of Title 85A, which guarantees surety for injured workers.

[4] For the non-occupational components of your OKO program, ERISA does apply.

[5] Per Section 203.B. of the statute, compliant plans “shall provide for payment of the same forms of benefits included in the Administrative Workers’ Compensation Act for temporary total disability; temporary partial disability; permanent partial disability; vocational rehabilitation; permanent total disability; disfigurement; amputation or permanent total loss of use of a scheduled member; death; and medical benefits as a result of an occupational injury, on a no-fault basis, with the same statute of limitations, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage and duration limits contained in Sections 45, 46 and 47 of this act.” (Emphasis mine.)

[6] Details of OKO appeals committee procedures are generally misunderstood—for now—by plaintiffs’ attorneys (and, apparently, investigative journalists). Attorneys frequently assume that, because the employer foots the bill, the employer controls the process. For a peek at how the appeals committee process really works for a majority of OKO employers, those curious should watch this video.

5 Workers Who May Be Exempt From WC

If you are hurt while working or have an illness caused by conditions at work, you may be entitled to workers’ compensation benefits. Workers’ compensation is a state-run insurance system created to compensate workers for injuries received in the workplace. Employers’ participation is mandatory under state law, and they are protected by the workers’ compensation program from being sued further by the injured employee.

To qualify for workers’ compensation benefits, you must meet the definition of “employee.” Let’s take a look at what that means.

Am I an Employee for Workers’ Compensation Purposes?

Any employee is entitled to receive workers’ compensation benefits. It doesn’t matter how long you have been employed or whether you are working part-time or seasonally. Regardless of these criteria, if you are an employee and injured on the job you will be eligible to receive workers’ compensation benefits.

There can be uncertainty, however, as to what it means to be an employee. By definition, an employee is a person hired for wages or a salary. An employee’s duties are typically dictated or controlled by the employer, and the employee receives any job training needed by the employer.

Independent contractors, freelance workers and consultants, on the other hand, operate more independently and are just required to deliver a job. The manner in which it is completed is not controlled by the company. These workers are not eligible for benefits under workers’ compensation laws.

Special Rules for Certain Workers

In some states, there are some special groups of workers who, although they may meet the definition of an employee, are not required to be covered under an employer’s workers’ compensation insurance. The criteria will vary by state, so it is best to consult with an experienced workers’ compensation attorney if you have doubts. Some of the groups that may be exempt from workers’ compensation coverage are:

Casual Labor – Casual labor is usually defined as work that is not in the usual course of business for the employer. For example, a company may hire someone to do some landscaping or carpentry, which does not directly promote the company’s main business.

Domestic Workers – Domestic workers are paid to help with domestic tasks such as cleaning.

Agricultural and Farm Workers – Agricultural workers perform physical labor and operate machinery on farms, ranches and other agricultural sites under the supervision of farm or ranch managers.

Undocumented Workers – Undocumented workers generally work for cash and are not asked to provide identification or evidence of legal status to the employer.

Leased or Temporary Workers – Leased or temporary workers are employed by a professional employer organization (PEO) and not the company they are working for. They usually work under a contract between the company that needs work and the PEO.

Workers’ compensation insurance is a helpful program to ensure that employees are suitably and promptly compensated for losses incurred when they are injured in the workplace. A person must, however, meet the legal definition of employee in the applicable state. If you have any questions whether you meet that criterion, consult with a workers’ compensation attorney to find out your rights.

How to Know When a Claim Should Settle

Case evaluation is part art and part math. And we’re not even talking calculus; we’re talking arithmetic.

A surprisingly large number of lawyers tell me they’re bad at math. They’re not alone. CNN anchor Chris Cuomo recently had his math corrected by co-anchor Michaela Pereira while discussing Powerball lottery numbers.

 

You can’t come up with a realistic evaluation of a workers’ compensation claim if you can’t quantify the component parts: permanent disability, life pension, Medicare-eligible and non-Medicare-eligible future medical.

In mediation caucus, when parties give me their offer or demand, I often ask how they came up with that number. I want their best argument, the one that will convince the other side. The first answer I get is often vague, something like, “We thought it would settle the case.” Workers’ compensation professionals often neglect running the numbers. Getting parties to see the same numbers moves them toward settlement.

I recently got a call about an offer in a personal injury case. I questioned the plaintiff’s attorney about what he thought this number represented. His answer didn’t sound right to me. I asked him, “Did you ask them how they came up with that number?” No, he hadn’t. I suggested the attorney ask opposing counsel that question to allow things to move forward, toward settlement.

Random demands and offers are unlikely to settle a claim. Before you assume the other side is being unreasonable or before you respond, ask: How did you get to that number?