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  • Karen Kay

Mediation To Avoid A Defense Verdict -And Subsequent Monetary Judgement



Over my tenure as a successful trial attorney for both plaintiff and defense, there has been one constant in every case I have tried: counsel who are unfamiliar with their client’s medical history, who have not taken time to read their client’s medical records, and who base the valuation of the case solely on their client’s representation. The effect of this is: the delay of, or significant reduction of the amount of recovery for the very person these attorneys are attempting to help – their client.


I tried another of these cases recently before a jury of 12 in Pierce County Superior Court. What should have easily been a three or four day trial spiraled into six. At the end of presentations by both sides, including expert testimony, the jury deliberated for less than 1 ½ hours and delivered a defense verdict - in an admitted liability case. Why? They had determined that Plaintiff did not sustain any injury – despite presenting to an emergency room the day of the accident.


Let me explain how an effective mediator can save you, your clients, and everyone involved in the case time, money, frustration, and (hopefully) 6 days in a trial during a pandemic.


KNOW YOUR CLIENT

In this case, Plaintiff sought care, presenting to the emergency room on the day of the accident complaining of neck and back pain. In most cases, this would be a pretty straightforward causation claim, with the jury awarding at least the specials for the emergency room visit. However, in this case Plaintiff lied about nearly everything whether it was significant or not and in doing so destroyed her credibility with the jury about her injury.


For example, she reported at the emergency room that she had been struck at 35 miles per hour. Because of that statement, photographs of the vehicle that had no visible damage were submitted into evidence. She also told the emergency room that she had no similar prior conditions. In fact, just six months prior, Plaintiff received an epidural steroid injection for low back pain that she self-reported as disabling, and was requesting a disability examination. These records became admissible because Plaintiff denied on multiple occasions ever having a back injury. Lastly, Plaintiff testified that she was in excruciating pain at the scene of the accident. However, she and her vehicle’s driver drove from the scene of the accident and went to the casino for approximately six hours before deciding to go to the emergency room. One juror I spoke to, said he felt like Plaintiff decided that she was losing at the casino so she decided to gamble with her injury claim.


This case was never mediated and therefore these massive credibility and causation issues were never presented to Plaintiff and her counsel. Any mediator who has an active civil practice would have been able to identify and effectively convey just how significant the cumulative effect of these credibility issues was likely to play out in front of a jury. Because Plaintiff and Plaintiff’s counsel never had this reality check, they proceeded to trial confident that their case was strong. Who could dispute same day emergent care? Turns out a jury of Plaintiff’s peers did.


ARBITRATION AWARDS ARE NOT JURY VERDICTS

Any attorney who has been practicing civil litigation for more than five years can attest to the significant discrepancy between mandatory (now civil) arbitration awards and jury verdicts. In my experience, jury verdicts tend to be between 10% to 50% of what an arbitrator typically awards. The discrepancy between arbitration awards and jury verdicts has continued to rise especially following the recent increase of arbitration limits to $100,000.000. This discrepancy is due to multiple factors – which, I will explain in a future article.


The case I am sharing with you had gone through the mandatory arbitration process – twice! However, during arbitration, Plaintiff was claiming nearly $50,000.00 of special damages that spanned nearly 4 years with significant gaps in care. Each arbitrator significantly reduced the amount of special damages awarded, between $10,000.00 and $15,000.00, but still awarded between $15,000.00 and $30,000.00 for what correlated to about six months of care. Plaintiff and her counsel interpreted these awards to mean that the six months of care was a nearly inevitable conclusion in front of a jury. They were so confident in the recovery of these special damages, that by the time the case proceeded to trial, they presented only those damages awarded at arbitration.


Post-arbitration and pre-trial would have been another great time for mediation in this case. Plaintiff’s counsel argued that mediation was not necessary because the parties had conducted arbitration and because the case did not resolve through this process, mediation was unlikely to be useful. I disagreed. I have found that mediation can be especially effective in cases that are proceeding to trial, especially when one party has requested a de novo. Additionally, if mediation occurs at the right time, a mediator can bring to light the costs involved in taking a case to trial.


At arbitration, expert opinions from Plaintiff’s treating providers cost little to nothing. However, at trial, that same testimony costs between $3,000.00 and $5,000.00 per provider. This means that a settlement before these costs are incurred, is equivalent to a verdict of $10,000.00 to $15,000.00 more - without the risk of trial. Mediation can also be useful in explaining risk to the Defendant’s insurer. The insurance carrier needs to be aware of the very real risk of paying actual attorney fees, costs, and expert witness fees which routinely exceed six figures. It has been my experience that many insurers are unfamiliar with this aspect of mandatory arbitration in Washington and when confronted with this additional risk factor, they are much more willing to consider settlement. In the end, Defendant entered a $10,000.00 offer of judgment which was rejected while Plaintiff entered a $15,000.00 offer of compromise which was also rejected. You read that correctly: this case went to trial over $5,000.00.


RESPECT YOUR AUDIENCE

This was an in-person jury trial in a pandemic. None of the jurors wanted to be there and serving was a hardship on everyone on the jury. Even on exciting and interesting cases, most jurors would rather be somewhere else. In this case every juror I spoke to, said they thought this trial was a waste of the Court’s time. I agreed. However, there are a few things that Plaintiff and Plaintiff’s counsel did throughout the trial that angered the jury and led to a verdict in 1 ½ hours.


1. Plaintiff’s counsel was consistently late, which resulted in the jury waiting for proceedings to start until they showed up.

2. Plaintiff herself failed to appear on two different occasions for trial. The reasons she gave were clearly false and the jury knew it. They felt that if Plaintiff, who was asking for a verdict in the mid six figures, could not be bothered to attend her own trial that she could not have been as injured as she claimed.

3. The last action that sealed the jury’s dislike of Plaintiff is that one day her phone rang in Court during trial. Rather than silencing it and apologizing, she got up and took the call and walked out of Court in the middle of the proceedings. When she returned, she did not apologize.


When a jury sees a party demonstrating complete lack of respect and regard for their time, they get angry at that person, and the trial process. The result is a group of 12 people checked out and disinterested in hearing anything from that point. It was obvious to me, the judge, and to the jury that both Plaintiff and her counsel were not properly prepared for trial – to their detriment.


THE TAKEAWAY

Frivolous lawsuits abound, and the continued trying of these cases in court ultimately damages the justice system. A short and effective mediation would have likely resolved this matter short of trial to the benefit of all parties. The tenet surrounding mediation is that compromise means each side walks away from the table a little unhappy. In my case, Plaintiff and her attorney, being ill prepared and never having had a reality check, not only had no recovery, but were out at least $10,000.00 in costs, and Plaintiff now has a judgment on her record.


In retrospect, I am certain that Plaintiff and her counsel would have preferred compromise as opposed to the poor outcome at trial.

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