7 b the fine art of negotiating a lead case hb lead-conf

Lead Litigation Conference 2013

November 14-15, 2013

The

Presented by:

Kelly J. Mikullitz, Esq.O’Connell & Aronowitz54 State StreetAlbany, NY 12207518-462-5601www.oalaw.com

of Negotiating a Lead Case

Determining Value

Determining Value

•Notice

•Improper or Delayed Abatements

•“Problem” Landlord

Strength of Liability

Determining Value

•Blood lead level

•Chelation

•Exposure

•School and Medicals

•Expert reports

Damages

Determining Value

•Preexisting injuries

•Family history

•Child Protective Services

Confounding Factors

Determining Value

•Convictions

•Substance abuse

•School

•Employment

Problem Plaintiffs

Determining Value

• Representing Multiple Plaintiffs

• Representing Multiple Defendants

Other Considerations Affecting Value

Selecting Your Adversary

Selecting your adversary

• Prior relationships

• Negotiation style

• Knowledge / Experience

Insurance Adjusters vs. Defense Attorney

Selecting Your Approach

Selecting your approach

• Informal conversations /meetings

• Formal demands or offers

Formal vs. Informal

Insurance Coverage Concerns

Insurance Coverage Concerns

• Obtain Insurance Policy

• Definitions

• Anti-stacking language

• Verbal or written amendments

Know the Insurance Coverage FIRST!

Final Preparation

Final Preparation

• Determine settlement goals

• Obtain authority

Final Preparation

Settlement Discussions

Settlement Discussions

• Maintain credibility

• Discuss liability / injuries

• Respond to adversary’s criticisms

• Discuss risks to Defendant

• Elicit value

• Admit confounding factors

• Make concessions

Negotiations

Settlement Discussions

• Document everything• Every discussion• Every question• Every demand• Every offer

Documentation

Settlement Discussions

• Agree to conditions of settlement early on• Liens• Confidentiality• Structured settlements

Conditions

Settlement Discussions

• Be reasonable

• No ultimatums

• Request that demand(s) be conveyed to defendant

• Document everything

Demands

Settlement Discussions

• Few cases settle in one negotiation

• Keep your adversary’s attention

• Settlement attempts and delays

Have Patience

Settlement Offers

Settlement Offers

• Be patient

• Do not shut down negotiations

• React appropriately

• Document efforts to resolve

• Continue to litigate

Low Offers or No Offers

Mediation

Mediation

• Fresh set of eyes• Jury perspective• Success rate• Cost• Confidential

Benefits

Finalize Settlement

Finalize Settlement

• Immediately document settlement amounts / conditions

• Confirming letters

Finalizing

Defense Perspective

The Law Offices of Frank F. Daily, P.A.11350 McCormick Road

Executive Plaza III, Suite 704Hunt Valley, Maryland 21031

Defense Perspective

Evaluation

Negotiation

Should we settle?

• How much? • When?

Considerations • Liability • Damages • Coverage • Other factors

BUT FIRST ...

• Who's the boss?

• Remember who is the client!

• Split allegiance

• Allstate Insurance Co. v. Campbell, 334 Md. 381, 639 A.2nd 652 (1993).

• What is best for the client?

Liability Considerations• Very

bad

• Very good

Damage Considerations

• lead levels • educational issues • occupational issues

Coverage Issues • Amount - enough to cover verdict?

• Erosion/Impairment of policy

• "Gaps" in Coverage

• Penn National Mutual Casualty Insurance Co. v. Roberts, et al., 668 F.3rd 106 (2012)

• Other Litigation - More Erosion?

• Notice to Client and Input from client

Settlement Amounts

• Appropriate figure?• Implications of settlement

Large Settlement

Small Settlement

Is it all about the money?No .....

• Terms/Type of Release

• Confidentiality • Structure

• Liens (Beware!)

• Discuss terms with opposing counsel!

The Speakers

Kelly MikullitzO’Connell & Aronowitz

Frank F. DailyLaw Office of Frank Daily, P.A.

Questions

Kelly Mikullitz O'Connell & Aronowitz 518.462.5601 kmikullitz@oalaw.com

Frank Daily Law Offices of Frank F. Daily P.A 410.584.9443 frank@frankdailylaw.com

Speaker Contact Info