Nick Rowley on Settlement Using Trial by Human
Posted by Alex Miller on Jan 06, 2015
“You won’t get the top dollar settlements if the opposition doesn’t fear you as a trial lawyer. You won’t get the top dollar settlements if you haven’t prepared your case for trial. The insurance companies have a system, they get reports, and they know what their risk exposure is. Settlements are based on risk assessment and the level of fear of loss that the defense decision makers have. Every book on trial law applies to working up your case, preparing it for mediation, taking effective depositions, doing an effective discovery, and getting the highest dollar settlements.
In order to know what a case’s value is, you have to know the client as a human being and know what the damage is. The only way to know that is to spend the time with the client, as a human being. Then you can communicate that to the opposition. It’s often the minutia of a case that makes it the most valuable. The only way you find out about that is if your clients trust you and you care about each other. Using the Trial by Human approach, it all starts before trial. The reason I get the highest value settlements is because of that approach.
I will sit down to share a meal with a client for a few minutes. The defense will pay me millions of dollars in settlement because they are afraid of the human connection I have with the client. My connection with the jury, if this case goes to trial, will drive up the settlement value on the case.
To say 'no' to a low dollar settlement, you need courage. If you aren’t prepared for battle and you haven’t trained yourself, you won’t have courage. You will only have fear and unpreparedness. Your enemy can smell the fear and see the unpreparedness. If you have taken low dollar settlements in the past, they know you, and they know there is no risk. They know when you don’t have the courage. It’s their job to know. You’re in a system where your name, and who you are, is ranked. It is assigned a risk value. Where you are in that system is up to you. The system isn’t win or lose; the system is who tries cases and who is prepared.
Your settlement history, and what you’ve taken on other cases, is in a database that the insurance industry owns. When you take low dollar on a case, they know what you’re willing to settle for. They know you are weak, scared, and unprepared. They know you.
The first rule of battle is to know your opponent. The defense industry knows you. What are you going to do about it? Surprise them.
If you are one of those lawyers who they think they know, who has taken low dollar offers in the past, you need to change yourself. Change your practice. Start with one case. One client. One project. Draw your line in the sand. Try a new approach.
Pull together the resources and the courage—and prepare—on just one case. Show them the difference. Show them what you’re capable of. Then you’ll get more money for your clients on all your cases. But you have to show them first.”