How to Negotiate and Settle A Personal Injury Case

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Most cases result in settlement. Some are dismissed outright, and a small handful make it to trial, but most cases are resolved through an agreement between the parties.  Thus, the ability to value, negotiate, and settle a case is an incredibly important skill for a civil litigator. Valuing and negotiating a case is a difficult process, which requires experience and talent. Ultimately, the settlement value of any given case is what one side is willing to pay and the other side is willing to take. Sometimes, these amounts never meet and the case should be tried.

There are four major factors to consider when evaluating a personal injury case: liability, sustainable value, comparative fault, and collectability.

STEP 1: ASSESS LIABILITY

The first step in evaluating any case is liability: how sure are you that your side will win. In some personal injury cases, such as a pedestian knock-down or a ladder/scaffold failure, liability generally strongly favors the plaintiff. In others, such as most slip and fall cases, liability tends to favor the defense.

In some cases, where liability is clear for one side or the other, the case may be subject to dismissal or summary judgment, meaning that the judge looks at the undisputed facts and decides which side wins as a matter of law. In most cases, however, there are questions of fact and credibility that must be answered by a jury if the case does not settle. When a jury gets involved, there is always a level of unpredictability.
Once you've evaluated the odds of winning, that number should be assigned a percentage or a range of percentages. Knowing how likely you are to win, and what percentage your client will be held responsible, requires knowing the law, knowing both sides' arguments and evidence, and being able to objectively apply the law to the facts.
STEP 2: ASSESS THE DEFENDANT'S EXPOSURE

A defendant's exposure is the amount it will cost if the defendant loses the case: its worst case scenario. This value is derived by examining the sustainable value of the case (your best case scenario) and factoring in comparative fault. Conversely, the plaintiff's worst case scenario is losing and getting nothing.

A - determine the sustainable value of the case

To know what a case is worth, you need to have some idea of the full value under the best possible circumstances. In a personal injury context, there are often records of settlements and verdicts in cases with similar injuries. There are some commercial publications, such as the jury verdict reporter, but the most valuable records are published court decisions.

With most jury verdicts, the parties have a right to ask that the amount be reviewed by the trial judge and, if necessary, the appellate court. In New York State Court, the Appellate Division takes an active role in reviewing jury verdicts, and will lower or increase the award if it "deviates materially from reasonable compensation." The Federal Courts are less active in reviewing jury verdicts, and will only change an award if if "shocks the consience." Federal juries, however, must decide civil cases with a unanimous verdict of eight jurors; whereas a NY State jury in a civil case can issue an award with 5 of 6 jurors agreeing.

When the injury you are dealing with has been examined published decisions, there may be case law that provides a range of "sustainable value" for that injury. By "sustainable value," I mean the amount, if everything goes in your favor, that the court will let the plaintiff walk away with.  One notable blog, John Hochfelder's New York Injury Cases Blog, focuses on discussing these decisions.  As John often notes, the courts often leave these decisions purposely vague. 

Every person, and every injury, is unique. Just as with evaluating liability, determining damages is as much of an art as it is a skill. The plaintiff's age and other unique factors (pre-existing conditions, unique limitations, etc.), are important to consider when comparing cases.
Juries generally award personal injury damages in two parts: past and future. Within that, the damages may further be divided into lost earnings and pain and suffering. To compare a case, you will need to break down this number by year so as to compare it to your plaintiff.
In examining comparative injuries, you also need to take into account the type of case and the venue. For example, a spinal injury is generally worth more in a construction accident case than in a motor vehicle case. With respect to venue, there are conservative counties and liberal counties. A Bronx verdict is not particularly informative when assessing the value of a Nassau County case.
B- If applicable, assess a range for comparative fault

In some cases, comparative fault (the plaintiff's level of responsibility) is not an issue. It is not an issue, for example, where the plaintiff was a passenger in a car, or where liability is "strict," such as in a ladder/scaffold failure. In contrast, comparative fault is nearly always an issue in slip or trip and fall cases.

When the plaintiff's fault is an issue, comparative fault can be one of the most difficult factors to evaluate. It is extremely fact sensitive, and something over which different people will have varied opinions. Also, many times, comparative fault overlaps with the liability inquiry. 

The choice of law can make this inquiry particularly important. In personal injury cases, the law of the state where the accident happened usually governs. In New York, in most cases, a person can recover even if they are mostly (but not entirely) at fault, although the award will be reduced by their proportionate share of negligence. Other states, such as New Jersey, do not let the plaintiff recover if they are more than 50% at fault.
C- Do Some Math

The full sustainable value of the case, minus comparative fault, gives you a sense of the defendant's exposure. From that, you can determine a settlement range by discounting liability.  Say a case has a full sustainable value of $750,000 to $1 million, but the plaintiff was 25-50% at fault and there's a 30-40% chance the defendant won't be held responsible at all.  In that scenario, the defendant's exposure is between $375,000 (750k - 50% comparative) and $750,000 ($1 million - 25% comparative). Thus, the settlement value is between $225,000 (375k - 40% liability discount) and $525,000 (750k - 30% liability discount). 

These numbers, of course, are fictitious, and would need to be adjusted to reflect the facts of any particular case. Realize also, both sides will likely have a different assessment.
STEP 4: COLLECTABILITY, LIENS, AND OTHER FACTORS

Often, defendants have limited insurance coverage. Because of the difficulty collecting a judgment, the reluctance of insured defendants to contribute to a settlement beyond their policy limits, and the fact that the average individual does not have significant assets, the insurance coverage frequently serves as a cap on the amount of money someone can receive. You can have a million dollar injury, but a basic $25,000 motor vehicle policy and an impecunious defendant, leaving no-where else to look for additional compensation (other than, perhaps, social security).

Liens may also pose a problem with settlement. Any Workers Compensation lien or Medicare/Medicaid lien must be paid from the client's share. These don't interfere with the settlement per se, but are factors that can make it more complicated.

Litigation cost can also be an issue. If a case goes to trial, both sides have to pay for doctors to testify, which can be expensive. This should never be a decisive factor, but it is (along with the unpredictability of a jury) a justification for the plaintiff giving a small discount to avoid trial, and the defendant offering "nuisance value" to make the case go away. Not all cases warrant such a discount, but in some situations it is appropriate.

STEP 5: NEGOTIATE

Negotiating a settlement is a back-and-forth process of demands and offers. The starting point is almost always absurdly low or absurdly high. You never start off telling the other side exactly what you want because then you have no room to negotiate.

Generally, the plaintiff leads off the negotiations with a demand. Having evaluated the case, the plaintiff's attorney should have a target number in mind, and will make a demand that is significantly higher than that. The defendant, in turn, responds to the demand with some sort of offer. Based on the defendant's response (the number will, of course, be extremely low), the plaintiff can get a sense of how the defense has valued the case.

Both sides will at least appear set in their ways, but that is just how attorneys work. It is not just an exchange of numbers, but also a discussion of the merits of the case.

Especially if your side has a strong case, you don't have to settle. One of the most pursuasive things you can say in settlement negotiations is that you want to try the case (as long as you mean it). In fact, some insurers will keep their offers low until you prove that you have no problem going to the jury; conversely, some plaintiff's attorneys will cave rather than take a case to trial.

As a case progresses through discovery, there are several instances where the parties exchange information. These are the ideal points to discuss the case with the other side and revise the demand/offer.  Each move is goal-oriented. If you give your bottom line, you probably won't get it: they aren't telling you what they are really willing to pay; why should you tell them what you are willing to take?

Bidding against yourself, generally, is a mistake. When one side moves, its the other side's turn. That's just how it goes.

Choosing whether to accept or reject a settlement is up to the client. Some clients are risk takers, while some are risk-averse. It is important to get authority, to manage the client's expectations, and to make sure the client is on-board with your perspective of the case. That said, clients, generally, have no experience on which to value their own case. That's what they hired you for. It is up to you as their attorney to explain what the case is worth, and to make them feel confident that their attorney is fighting to get them the best result.

How To Argue An Appeal

Below are ten tips for appellate argument. The tips are: keep it simple; don't make unnecessary concessions; respectfully disagree with a hostile judge; focus on the issues; don't be a jerk; engage the court; be organized; use verbal signposts; use case law intelligently; and, above-all, be sincere.

* Keep it simple.

To be persuasive, you also need to be concise and straight-forward. No-one will be receptive to your argument if it's too drawn out to follow. Overall, put your best points up front to make sure they get out.
Prior to actually arguing before the court, go over the arguments again and again so that you can squeeze your best points into as few words as possible. Trim your argument down to your best sound-bites, and the rest will flow naturally. A short focused argument is better than a long and rambling one, and the simplest argument is often the most compelling.

Also, you don't always have to repeat everything in the briefs. Don't concede anything about your weak arguments, and be prepared for everything, but there is nothing wrong with focusing on the strong issues (or the ones that you feel the court will deem most important). If you are going to concentrate on one or two things, tell the court. You can say something like: Unless the Court has questions about the other issues, I would like to focus on X and Y. This is particularly helpful if you are the respondent in a scattershot appeal.

Different courts have different policies regarding time limits, and you should plan accordingly. For example, in lower New York where I practice, we have the First and Second Departments of the Appellate Division. In the First Department, time limits are relatively strictly adhered to, with colored lights signifying that you are running out of time. In the Second Department, they are more prone to being flexible with time limits, but you need to get the hint when the judges are suggesting that you sit down. Whatever the court's rules, you have a finite amount of time and need to make the most of it.

* Don't make unnecessary concessions.

The judges will occasionally cross-examine litigators with yes or no questions, trying to get them to concede points. On a rare occasion, such a judge is trying to help you strengthen your argument, or is using you to mouth their own argument in your favor. More often, however, the judge is trying to make you see the weaknesses of your case, or to concede something that may be fatal to your argument. I try not to say never, but be extraordinarily careful about conceding any issue during your argument.  If you are going to concede a point, that decision should be made at the briefing stage, or at least prior to argument, not in the middle of your presentation. Don't press weak points, but you don't need to roll over if you disagree.

On the other hand, former Judge Wesley of the Second Circuit has argued that lawyers are often too-wary of conceding a point, thereby losing credibility with the court, saying "I would think that you would immediately concede it, if you're convinced that the judge is right and then immediately distinguish it." (NYLJ). 


Overall, whether to concede a point is a fact-sensitive  issue, and should not be done lightly.  If you don't agree with what the judge is saying, you should confidently say so.  If you think the judge may have a point, the best approach is to treat the question as meaning: even if this were true, why should you still win?

* Respectfully disagree with a hostile judge.

Dealing with a judge who clearly opposes your case is possibly the most difficult part of arguing an appeal. Most often, unless there is also a judge who seems to be on your side and they decided to play good cop/bad cop, an overtly hostile judge may signal that at least that judge (if not the entire panel) will side against you. If no-one else on the panel is bolstering your argument, they didn't give your adversary a hard time, and one or two judges attack your arguments vehemently, the panel is probably going to side against you.

At that stage, when you see a loss looming, don't give up. Don't unnecessarily drag it out, but your client has a right to be heard. Not only is it possible that you are misreading the judges, but in an appeal your arguments have a broader implication than just the case before you. Even if the judges disagree, you need to make sure they understand and respect your reasoning and issue a decision that is not bad precedent. Possibly, if your arguments are strong enough, you'll get a dissent. There are judges -- albeit relatively rarely -- who are more timid and won't speak up against a colleague during oral argument. Moreover, although the merit of an appeal is usually decided based on the briefs, there is always a possibility that a strong argument will sway one or more judges.

"With all due respect," is a phrase that very strongly signals that you disagree with someone. It can be seen as a polite F-U. I recently used it where a judge kept cutting me off, and the judge quickly cut me off again and said "the respect is implied counsel." (He then compared me to Charlie Brown listening to his teacher - but that's neither here nor there). The phrase "with all due respect" generally does not help you persuade the judge you are speaking to, or any that agree with that judge. It is adversarial, and its only real purpose is to draw the attention of any other judges on the panel who may be leaning (or teetering) in your favor.

* Focus On The Issues

Generally, appeals involve questions of law, and the judges are already familiar with the record and the issues. Get to the point, and stick to the real issues. It is not a jury argument, and shouldn't be treated like one. Be concise and straight-forward.

As a general rule, do not overtly appeal to sympathy or other emotive factors, but this rule very flexible and depends on what issues you are dealing with. When the panel is reviewing a jury verdict, for example, your argument may sound similar to a dense, evidence-focused, closing statement.

I watched a rather entertaining argument a couple months ago where a local Brooklyn business purchased an investment property at a foreclosure sale. The property had been owned by a rich old woman, there had been some confusion with the water bill, and it eventually went up for a foreclosure sale without the woman realizing it. The business was obviously a good faith purchaser, and had no knowledge that the woman intended to pay the bill. The old woman, however, wanted the building back because it had sentimental value (she grew up in one of the apartments) and wanted it to be part of a bequest in her will towards a complex for a medical school.

The lower court put a hold on the sale until a hearing could be held as to whether the woman's default could be vacated, and the business appealed. An overly-cocky lawyer represented the business, and started with a story about how he went to his son's class for career day and explained what lawyers do. The story had some moral about telling the truth, and the argument was that the other lawyer was lying about having served papers. While the lawyer snarkily grinned with pride that the judges let him finish his story before lashing into him, I thought to myself: I hope this guy didn't sound as sleazy when he spoke to his son's class.

Starting off with a story, and accusing the other side of lying, really didn't seem to sit well with the court. In fact, may have made the panel more sympathetic to the other side. Since the issue was whether the lower court had the equitable discretion to set aside the foreclosure, focusing on the grey area of credibility rather than black-letter law may have been very poor move.

Not helping the Old Lady's side, of course, was that her lawyer was a hot mess. The two attorneys were like Felix and Oscar. The Old Lady's lawyer argued that he had personally filed and served documents (which neither the Court nor opposing counsel received - but he was apparently permitted to submit during argument below), but the clerk had lost them and opposing counsel was lying. He refused to accept even the possibility that he didn't send them, despite the fact that it probably would have been easily excusable. Adding to this, the business had appealed from a motion to renew/reargue, filing two seperate briefs rather than consolidating, and the old lady's attorney didn't respond to the second appeal because he had changed offices apparently forgot to forward his mail.

As entertaining as it was watching this train-wreck of an argument, neither side squarely addressed the main issue of whether the lower court had equitable power to halt a foreclosure sale after the auction was already complete.

* Don't be a jerk

As you may have gleened from the story above, courts don't like when one lawyer attacks another or makes anything unduly personal. If you think the other lawyer or the lower court deserves to be chastised, let the court do it sua sponte. There's an old saying: if the facts are in your favor, pound on the facts; if the law is in your favor, pound on the law; if all else fails, pound on the table. Those are your choices (the table being policy or sympathy) and attacking anyone personally is not one of them. It's unprofessional, discourteous, and generally a bad idea.

I had a client once -- a law school graduate who, until then, had appeared pro se -- who had been granted leave to move for reconsideration in the Appellate Division on a legal issue of national significance. I came in to handle the reconsideration motion, with an eye towards going to the Court of Appeals. Rather than focusing on substance, the client insisted on personally naming and attacking court personnel, whom he believed had made technical administrative errors. Eventually, we parted ways, he argued on his own and apparently didn't heed my advice. Despite having a very winable appeal, the outcome was scathingly against him.

I had another case where my adversary's arguments - despite winning in the court below - bordered on frivolous (and only became moreso with time). He seemed to be doing his best, but it was just bad. Rather than asking for sanctions, or criticising him, I focused entirely on the merits. I argued that not only was the lower court wrong for granting the defendant summary judgment, but the Court should search the record and give my client judgment as a matter of law. The record was sparse, but I suggested that my adversary would concede that certain facts were not in dispute (and he did). My client wound up with a judgment overwhelmingly in his favor, and I'm convinced it would not have gone so well if I hadn't taken the high road.

* Engage the court

Justice Scalia and Brian Garner wrote a book on appellate advocacy called "May It Please The Court," in which they suggest that oral argument is your opportunity to participate in the judges' deliberating process: listening to each judge's concerns and addressing them. It is one of the best books I've seen in this area, and the approach is well taken.

You need to make listening a priority, both with respect to your adversary and the judges. When a judge asks a question, answer it immediately. If necessary, make a quick note (such as a little star in your outline/flow-chart) to remind you to finish what you were trying to say. If you're good, you'll be able to weave your response seamlessly into your argument without losing your flow. The outcome of deferring or ignoring a question will be that the judges will either jump down your throat, or completely ignore everything else you have to say.

In the end, the outcome you want is an opinion in your favor. In your argument, you should be giving the judges fodder to use in crafting their decision. If you're lucky, one of your sound-bites will be adopted. I once received a decision that copied the preliminary statement from my brief almost verbatim. You will almost never see your advocacy explicitly complimented in a written decision, but being quoted (even if its not attributed to you -- which it won't be) is a huge compliment.

* Be Organized.

Don't read a prepared statement and think that's an argument. That is obvious advice, but it doesn't mean that you should "wing it." You need to plan out your argument, know which are your best points, and be prepared to jump around in response to the judges' questions.

When I argue, I use a flow chart. I put the main topics in bubbles, with sub-topics coming out on spokes (and key case names next to their respective sub-topic). I rarely look at the chart, since it's really a proxy for what's already in my head, but it has come in handy for planning out the argument. Then, before finishing, I can glance at the chart to make sure I've covered everything.

Whatever notes you use, keep them to one or two pages that you can place face-up on the podium. No-one wants to flip pages. One of the most common strategies is writing your notes on the inside of a manilla folder, which you can also put the briefs in.

On those same two pages, save room to make notes about your adversary's argument. I keep my flow chart on one page, then on a second page I make a line down the middle. Notes on my adversary's argument go on the left; my rebuttal points, if necessary, goes on the right.

Flag the record. Generally, you will not need to reference a specific page in the record during an argument. The judges have already been directed to the important documents or testimony by your brief, and usually won't ask you to point to a page number. It does happen, however, and it happens because there is something important on that page.

Sadly, all too often during oral argument, there will be a minute of awkward silence as a flustered attorney flips through pages on the verge of tears, then says "I know it's in here somewhere." Any documents or testimony that you think are important should be flagged and labeled with post-its. In the unfortunate event you do look for something in the record and can't find it, play it cool, give the best description you can of what it is and where it's found, and move on. In reality, it's probably not as big a deal as you think it is.

If you need to know a lot of cases, make one or two word notes in the table of authorities. That way, if a judge says what about such-and-such case, and you have no clue which case it was (which happens, despite best efforts), you have a readily available memory cue.

* Use Verbal Signposts.

If you want to get out three points, say something to the effect "there are three main issues I would like to address: first... ". This way, the judges know where you are going. Be careful, however, not to promise to talk about three things and only get to two.

If you are addressing your adversary's argument, reference it to let the court know what you are doing. If you are going back to a topic that a judge previously asked about, say something to engage that judge (especially if they are seemingly on your side).

* Use Caselaw Intelligently

This seems obvious, and you probably already did a lot of the work in your brief, but the back-and-forth of oral argument inherently gives legal discussion more depth.

You need to know the comparable cases extremely well, especially those that are binding on the court you are in front of. If possible, you should read underlying and subsequent decisions that give more detail on key cases. Frequently, the facts of a given case are described in very general terms, seemingly similar to your case, but key distinctions reveal themselves with further research.

Whenever you are discussing precedent, keep it closely tied to your own case. Your job when dealing with precedent is to compare and contrast relevent cases, not just explain them.

Update your research. There is always a lag between when briefs are filed and when the appeal is argued. If there is intervening case law that is on point, from the jurisdiction you are in front of or one that's binding on it, you should bring it to the court's attention. In the First Department, they provide you with index cards to write down any additional citations for the court. In any court, you can always bring it up during argument.

* Be sincere.

You are an advocate, and you should believe in your client's position. If you don't, perhaps someone else should do the arguing. Even if you don't agree with everything, and believe the court is going to side against you, there is always at least one point that deserves to be made clear. If necessary, focus on that, and build your argument around it. Policy arguments are the weakest type of argument you can make, but fundamental fairness and the rule of law are still at the heart of every good argument.

I watched an argument a few weeks ago where one side responded to progressively stronger requests that she sit down with statements such as "one last thing," followed by another minute or two of talking. Her adversary, on the other hand, agreed with nearly every yes or no question that was posed to him, even when the answers didn't help his client and were not things he had to agree with.

The two were actually rather skillful and experienced advocates. One was from a District Attorney's office, the other from a legal aid organization. They both likely knew that they were bending the "rules," but were engaged in passionate and sincere argument, which generally trumps any black-letter rules so long as it is done respectfully. There were a lot of examples of what not to do, but overall it was a great argument because both attorneys seemed to realy believe in their case and made good points.

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