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Avoid the green ones · Coopers' Code

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Howdy and welcome to the show. Cooper's code examines a legal
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issue and hits the highlights so we all achieve the best results
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for our clients. I'm Miles Cooper and with
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today's guest, Kimberly Wong, head of Litigation for Cooper's.
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We will be discussing working with clients to make sure they
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are prepared for mediation before we get into today's
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topic. A few words about Cooper's LOP.
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We at Coopers are committed to thought leadership, developing
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the best talent and honing skills through learning,
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practice, trial, and the relentless pursuit of justice
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website at Coopers dot or e-mail us at Podcast at Coopers dot.
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Or welcome back to the show. Thank you for having me.
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Again, we're continuing our conversation in mediation
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related topics. Our last episode we talked a bit
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about selecting the right mediator and today we're going
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to be talking about making sure that our client is properly
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prepared for mediation. In that regard, when do you
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start talking about mediation with a client or potential
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client? With the potential client, what
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do you mean by? That I will bring up the word
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mediation. With someone who's considering
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hiring the firm? And why do you do that?
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Well, if they don't bring it up because inevitably they will
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ask, well when will I expect to see money or how will my case
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resolve? I bring it up then, but also I
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think it's good to give a lay of the land to manage expectations
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from the get go so they know what they're getting into.
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When you do that, how do you go about bringing up mediation as a
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concept? It's important for the client or
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the potential client to understand what the framework
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and the timelines for litigation, but also the
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language. As lawyers, we live and breathe
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everyday litigation and there's unique terminology, so we have
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to be careful not to forget that for the client this may be and
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hopefully is their only lawsuit in their life.
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I think about that when we have this tendency to lapse into
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whether one calls it legalese or jargon.
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And 998 is the most common one that I think of because we'll
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start talking with a client about, you know we're going to
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998 them before and then you have to step back and say, oh,
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wait a minute, that's not a term we should be using with you,
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what's called the formal offer to compromise.
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Actually, I will use the term, but then I'll define it because
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if the mediator uses it or someone else, they'll at least
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know what we're talking about. It sounds like from the very
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beginning you're doing a lot of educating with the potential
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client about the language of litigation, so that they start
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hearing these words, learning these words and knowing what
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they are throughout the process. Right.
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Then I won't define it as more detailed as I would down the
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road with the client, but just to give a lay of the land as
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you're going forward with that potential client, now client,
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how do you work on reinforcing that understanding of mediation
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in advance of the mediation itself?
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Good lawyers will have regular communication with their client
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at least periodically check in even when there's nothing
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particularly active going on in the case.
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And so during those checkins and gently remind what the
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trajectory is, what the timeline is first after we sign you up,
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we do some investigation written discovery and there's
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depositions, there may be an opportunity to do a settlement
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demand or mediation. If that doesn't go well, maybe
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there's a motion for summary judgment and then we get towards
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trial. If we haven't resolved at that
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point, let's Fast forward down the track quite a bit.
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When the mediation gets set, are there any steps that you take to
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alert the client about the mediation and what to expect
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given that the mediation typically is still a couple
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months down the road when it gets set?
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Usually there's some trigger. It'll vary from case to case
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whether you have. An ADR deadline from the court
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or it's something that the parties have agreed to that this
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would be good timing in a few months to go through mediation
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and before hopefully when we're at the point where you're
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picking dates, the client already remembers what mediation
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is. I'm assume making that
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assumption that they do. Remember we've had those prior
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conversations and at that point you're going to have a little
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more indepth conversation about. Reminding OK, we're gonna set a
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mediation 2 months or whatever the time period is and what a
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brief background of what the process is and what to expect.
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I'll let them know that we're gonna have a more detailed
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conversation as the date approaches, or several
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conversations, whatever makes them feel comfortable.
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Do you get questions in that session about things like, who
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is this person? Do you have any experience with
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this person? Yes.
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And will you typically provide some background information?
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About the mediator, of course. If they're interested some
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clients, they don't care. All they need to know is that
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it's a neutral person and someone that we trust.
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Sometimes I will also get a question of OK, so if we don't
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resolve the case, does this person then decide it for us?
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Do you get that question? Yes, I've heard that question.
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It's always interesting to see what kind of questions you get
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from clients because we don't have that perspective.
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I agree. And that's an opportunity to
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talk a little bit about the difference between mediation and
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arbitration. But in order to get this case
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done, you need a willing buyer and a willing seller.
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There is no settlement without both sides reaching an
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agreement. And also the difference between
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mediation versus trial, true, let's now Fast forward to the
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conversation that one has with the client in the week or so
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before the mediation. And actually I should ask a
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question, when do you have the detailed conversation with a
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client about mediation? I would say about a week before
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the mediation and I might also, depending on the client, have
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another checkin the day before. Why would you do that?
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What tyes of things would trigger that?
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Sometimes clients will ask for a checkin, but I can also sense,
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you know, if they're nervous, that it might be reassuring to
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have a call the day before to just go over a few of the
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highlights. And that way when they arrive
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the next day, they can hopefully feel calm and that you've gotten
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everything taken care of. Their job is to sit there,
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listen, and be the decision maker as it relates to the
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amount at the end of. They feel comfortable with that
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and you're there to provide them all the information they need to
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make an informed decision about their case.
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Sound bitey way that I approach that is we're advisors but you
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are the decider. That seems to be something that
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resonates with them. And just like, oh okay, I
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understand that in that regard, when you're having a
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conversation with a client, do you cover things like do you
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need anyone else that are with you in terms of making
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decisions? A spouse is significant other
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someone else who we hadn't thought of needing to be in the
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room necessarily to decide, but to make sure that everyone is
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there. Yeah, sometimes the client will
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ask and sometimes the client will just express that they feel
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uncomfortable being there by themselves and if it'll make
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them feel more comfortable. If their spouse is not a party
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already, then I think it's a great idea to include them as
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long as they're not going to be obstreperous.
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But we also have to recognize that there are important family
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members or friends or advisors in our clients life and if they
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feel that they need their. Council or comfort in the
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mediation, then we should try to include them.
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But of course you would want to alert the mediator of that as
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well and see if there's any issue about that.
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We've been talking about having somebody be there.
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I think this is a good opportunity to talk about some
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of the administrative pieces that come up related to
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mediation preparation. With the vast majority of
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mediations now being on Zoom, Are there technological pieces,
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administrative pieces that you worry about going over with your
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client? And bonus points in terms of
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whether you prefer to be with your client physically when a
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mediation is going on versus being separate.
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A lot of clients don't have experience with Zoom as part of
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their job or their everyday use, so you definitely wanna make
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sure that they have a good setup or they come into your office
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for that. I have found that most
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mediations. We've already had plaintiffs
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depositions and in this pandemic and post pandemic world they've
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already had their deposition via Zoom.
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So whatever setup we used prior and if it worked, we'll
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replicate it. I remember the days pre Pandemic
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where everything was in person and there's certainly a lot of
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benefit if possible and if the client or you for whatever
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reason prefer to be together. Have the client come into the
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office. You probably have a good setup
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for Zoom and you can talk more easily face to face about what's
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going on. And then I don't know if you've
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had this experience Miles, but sometimes mediators will ask the
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client questions which you want to prepare your client for and
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they aren't just brief questions and it somewhat feels like a
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deposition. And I've had clients who will
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just go on and on and on and say things that aren't true or
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contradict things that they've said are our position.
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And so the benefit of being in person is a little nudge that
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makes a lot of sense. We certainly have had
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experiences with mediators who ask our clients a lot of
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questions, and it makes me think of our conversation about
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different meteors and selection processes that we talked about
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in the last episode. I find judges more often are the
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one they they seem to spend a lot of time wanting to know more
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about the individual that they're working with.
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They've read the brief, but they might have detailed questions.
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And part of our goal is to prepare our client so that they
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don't make those missteps. But you're right, the
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oldfashioned kick under the table is harder to do if they're
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not in the same room. I've unfortunately had that
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happen over Zoom. Are you rapidly trying to figure
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out how to text the person and hope that they get distracted by
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your text? The joys of our modern approach
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to law. All that said, as we talk about
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Zoom and most things these days happening on a video platform,
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the efficiency that comes along with being able to handle
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depositions, handle mediations, I've found overall, while I miss
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the in person experience, the efficiency that comes along with
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it is vastly improved. I agree.
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And also for injured clients, depending on what their
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limitations are, it's so much more convenient for them.
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We talk about the administrative piece.
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The other piece is for those rare mediations that occur in
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person, and I'm thinking pre pandemic, are there certain
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things that you would cover with a client about the arrival with
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the mediation and whether they wanted to be greeted somewhere
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else? And I'm gonna stand back and let
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you run with that. Absolutely.
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Sometimes I think as lawyers we forget to start with the basic
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basic with their clients because I have found a lot of them are
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nervous just about the logistics of the mediation and where do I
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have to show up what time, what am I getting into when I get to
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this building if it's not your office and so?
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Do you want to find a common ground of what can make them
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feel comfortable? I will meet with a client at a
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coffee shop beforehand and just I might do my instead of the day
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before. I might do a morning like recap
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if that makes more sense and then just answer any questions
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they have that I might not have thought of from their
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perspective. And on that checklist as just
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ones having the conversation about the logistics and meeting.
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One of the things I actually have on my checklist is making
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sure that that we exchange mobile numbers and that it's
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programmed so that it be inevitable I'm running late or
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I'm at the coffee shop, Where are you?
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And it turns out there are two different Starbucks within a
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block of each other. That's well, it seems mundane.
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It's the mundane that can cause problems, it seems.
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Yeah. What about preparing the client
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for who they might run into at the mediation, for example?
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A lot of cases the defendant doesn't come to a case, it's the
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carrier and adjuster. But in a catastrophic incident
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or a fatality, do you advise the client about whether the
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defendant themselves is likely to be there?
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Well, I think whether it's remote or not, I always tell
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them who might be there because they want to know who's in the
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other room. But yes, obviously if it's in
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person. That you will want to take extra
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steps to let them know that they might run to someone in the
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hallway or in the lobby that they might not want to see and
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that might make them feel uncomfortable.
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But also, if they're having conversations to not speak so
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freely in these public spaces because you don't know who's
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listening, whether it is the defendant and insurance adjuster
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or the defense counsel, the walls have ears.
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Yes, I want to pivot a little bit into setting expectations in
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that conversation a week or so before the mediation.
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Do you do anything to set exectations in terms of know
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that we're going there to try to resolve it but it may not
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resolve? Managing expectations is one of
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the most important things that you need to do with a client
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throughout the case, and so it's no different here.
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How do you approach that? I find that most clients, they
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really are hopeful and want a resolution that mediation, but
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the reality is, is that. I don't even know what a
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statistic is, but they don't all settle at mediation, right?
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Sometimes they need more time than that or the pressure of a
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trial date. So I want to make sure that they
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understand that. I like to say that they can
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settle the case at mediation and we're going to make our best
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effort to do so, but to not be disappointed if that doesn't
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happen. I see mediation at the very
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least as the building of a foundation.
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Towards resolution and that's an ongoing conversation.
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If we don't end that day and that there are options to push
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the case towards resolution afterwards and for them to not
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be worried about that and we'll talk about that at the end of
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the day, if we end up not settling, that sounds like a
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really nice way to help set the expectation appropriately.
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As you are doing the preparation call, do you cover the financial
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implications? And by that I mean where the the
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case is as far as costs are concerned, liens where it is on
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the percentage and by that I mean certain firms their
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percentage shifts the closer it gets to trial.
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How do you handle that? You definitely want to go over
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all of the financials before the mediation, so that way you're
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not sitting there doing it and you can revisit it while you're
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at the mediation during the dead times, while you're waiting for
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the mediator, but. Oftentimes clients need time to
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sit with that information and process it because it is
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complicated and you probably have gone over a little bit of
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that in your earlier conversations with the client
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during the case. But now is the time to get down
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to the nitty gritty and one winter I would say is to really
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be conservative about what they might net and I like to use
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ranges because we can't predict. And there's a lot of different
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variables when it comes down to the financials that would affect
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their net, whether if liability is not clear or accepted, that's
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going to affect their net. The defendant sees the damages
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differently and what their lost earnings, their future medical
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needs. So there's ranges for every
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single thing on the lean side of things and we didn't talk about
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this, but I presume in the language of litigation that you
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start out talking about early on in cases liens are also
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something that you start talking out earlier.
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Yes, I actually just yesterday with a possible client, I
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brought up the issue of liens. I also presume by the time it's
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a week before mediation, you know what kind of lien is and by
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kind of I'm talking about standard lien hospital lien, the
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always popular so funded Rissa Lean.
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I'm seeing you roll your eyes. How do you handle that
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conversation at the mediation phase as we talk about liens and
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the potential for the ability to reduce them in any fashion?
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You definitely need to be upfront about the kind of lean,
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and you should know what kind of lean it is well before the
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mediation, and hopefully you've gotten an updated lien amount as
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best you can. Before the mediation to get the
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most recent amount, the reason why I rolled my eyes about the
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selffunded ERISA plans, which have liens that are much harder
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to reduce than other kinds of liens and the client needs to be
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aware of that. And you know if I'm dealing with
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a Medicare lien or medical, they all have their own different
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rules and you just explain generally what the range might
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be of reduction and without any guarantees.
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And this I think goes back into when you talk about financial
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implications, we can give you ranges, you know it's $100,000
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lien, it's standard lien often times as a reduced by attorneys
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fee percentages just off the top.
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And so we think we may be able to get it down to 60,000 or
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66,000, but we're not sure and we'll do everything we can to
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negotiate further. But that's the kind of
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conversation it sounds like you have in terms of giving them
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some scope. Will often run the numbers
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without reducing the lien to just so that this is like
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absolute worst case scenario. But knowing that in all
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likelihood with most liens we're going to reduce it.
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The other thing that we do, I expect you do a variant of is is
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overestimating the costs significantly, usually by about
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20% because there's often times something hanging out there.
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The mediation bill hasn't hit the register in terms of the
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cost. Yes, I do something similar.
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I look at what the current costs are and then I also think, OK,
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what have I not seen come in bill wise?
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I'll add that and then I'll add them a factor above that.
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Clients always seem to be happy when it turns out they're
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getting more. Boy, are they unhappy when they
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learn that they're getting less. Under promised over deliver.
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In that financial conversation, do you talked about tax
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implications of settlements at that point?
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Have you talked about it already?
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At some point I will in close proximity to mediation I do.
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The caveat I'm not a tax lawyer, I don't give tax advice.
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However, it's my general understanding that your personal
20:07
injury settlement would be tax free.
20:09
You should contact another professional to verify what it
20:13
is in your situation. And that I think is consistent
20:18
with the way most lawyers approach that.
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Do you talk about structured settlements?
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Depends on the case and the client, the amount of recovery
20:25
and what their future care needs are.
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But yes, it is something that attorneys should definitely keep
20:30
in mind to discuss with their client.
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When you're having that conversation a week beforehand,
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is there a reason you would bring up structures then,
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instead of waiting for it to show up at mediation as a
20:40
proposal, say from the defense? Because that sometimes happens,
20:43
right? Instead of offering a million,
20:45
they show how this can be $6 million.
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Pay it out over 30 years. Well, when I never used the OR
20:52
Michael, I would never advise my client use the defense
20:54
structured. I've done it both ways.
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I've had mediations where we had the client meet with a
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settlement planner before mediation or have them attend
21:07
mediation too. But I've also had plenty of
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cases where. I wouldn't make the introduction
21:13
until after there's a settlement.
21:15
Do you talk about lottery syndrome as you prepare people
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for mediation? No, it's what I personally do it
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after there's a resolution. Sometimes I think it's putting
21:25
the cart before the horse. You have to feel it out client
21:27
by client, situation by situation.
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I'm curious because different people handle in different ways.
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How do you handle the conversation with the client
21:35
about making sure that they are not worse off economically a
21:38
year from now after getting a large amount of money?
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I have an example from an old mentor of a client.
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His story of got this, you know, multimillion dollar settlement.
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He was going to be taken care of for the rest of his life with
21:57
all of his needs, and unfortunately he put most of it
22:00
up his nose and on a red convertible.
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Wow. That is a story that would
22:08
resonate, I would think, with people in terms of making sure
22:11
they make the right proper financial planning post
22:14
resolution. It's free for them to talk to a
22:17
settlement planner, and I think that's important to convey that
22:22
gather the information. This is not a Hills pitch, but
22:25
this is a decision that's going to impact the rest of their life
22:29
and you want to make sure that you're taken care of.
22:32
As we're talking about the various aspects of a mediation,
22:36
we've omitted a big one, and that's confidentiality.
22:40
How do you handle the confidential conversation in
22:42
terms of preparing the client for how this is under a cone of
22:46
silence and what that means? I don't remember the exact year
22:50
but I know it was about a few years ago the law changed where
22:54
made it explicit for lawyers to get a written disclosure signed
23:00
by the client about mediation, confidentiality and what it
23:03
means. So practice tip, make sure you
23:06
get that done before mediation. Go over it with your client.
23:09
The languages in the statute and then I just generally explain
23:13
how everything we talk about in mediation is confidential.
23:18
So what, they can't use it against us at trial, like if we
23:24
demanded a certain amount or we said something about the, you
23:27
know, how we saw liability. That's confidential.
23:30
However, we can't unring the bell too.
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So we have to keep that in mind. There's a fine line of what
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confidentiality is and how things practically play out as
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we go through the checklist of things to cover.
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Do you talk with a client about the potential that there may be
23:46
a request for a joint session where the mediator or the
23:50
defense lawyer might be given an opportunity to see them, hear
23:54
them, talk to them? I don't know your experience
23:57
with joint sessions. I have never had a client
24:00
actually sit in on the joint session.
24:03
It's only the defense adjuster who or client sits on the joint
24:06
session. But I do prep them for.
24:09
The meet and greet, the potential for that or choice of
24:13
words for me, But yeah, meet and greet is what I was referring
24:15
to. And I will be there.
24:17
Kind of like the lawyer defending a depot.
24:20
It's not gonna be more than a meet and greet, I will say
24:24
sometimes, and it depends on the sophistication of the client.
24:28
I will tell them, look, I'm gonna let them go if they have
24:32
questions for you. As long as it's not getting into
24:34
liability, it's not getting into huge minutiae.
24:39
The more I show confidence in my client being able to speak by
24:42
themselves, the more the defense is going to be worried about how
24:46
well this person might come across at trial with the right
24:50
client. I will tell a mediator as we go
24:52
into the meet and greet. You can tell defense lawyer that
24:56
they're welcome to ask our client questions.
24:58
That starts stringing into a deposition.
25:00
I might say something, but you know, within reason.
25:02
I want them to feel free to ask the questions.
25:03
We're not hiding anything here. Yeah, for the right client, I
25:06
can see that working. Did you talk with the client
25:09
about some of the techniques that a mediator might be using?
25:13
And again, we're talking about learning the language, things
25:15
like impasse, brackets, mediators, proposal.
25:20
I do, but I usually save that for when we are in the mediation
25:24
because there's often so much downtime when we're waiting for
25:28
the meteor. There are times I'm waiting an
25:30
hour. So that's a good opportunity to
25:33
use that time to explain those kinds of terms and.
25:37
The other reason why I don't do it earlier is because I don't
25:41
want to overwhelm the client with too much information.
25:44
Those terms become more relevant when we're in it and already
25:47
trading numbers. And I can sense we're about to
25:49
reach an impasse. And my next proposal to the
25:52
mediator might be, do you think it's time for a bracket?
25:55
And then once the media goes away and I explain it to the
25:57
client, it's interesting because historically that's what I used
26:02
to do. I find that while there are huge
26:05
gaps in time, that sometimes with some clients describing
26:09
some of these techniques takes more time than I expected.
26:12
And I don't like to be in the situation where it's taking us
26:15
an hour or an hour and a half to respond because the client lacks
26:19
the sophistication to understand the concept in the moment.
26:24
And so with those, I will sometimes explain some of these
26:26
things in advance, somewhat of a way of building confidence in
26:31
the system when we say, OK, these things may happen, and a
26:35
week later they hear these phrases and they do happen,
26:38
They're like, oh, wow, my lawyer actually knows what he's talking
26:40
about. Very true.
26:43
And I think a big theme for all of our conversation today is
26:47
know your client. Some things are very client
26:50
specific, absolutely true. You also raised a good point
26:54
about there being downtime and that's one thing that I usually
26:58
will stress is, well, we want you to focus on your mediation
27:03
today. There's going to be downtime and
27:05
so whether that's bringing some work, if the work is not going
27:09
to distract you, or bringing a book or having something so that
27:12
you're not just sitting there stealing.
27:14
I say those exact same things because, especially when we were
27:18
in in person depositions, the last thing they want to be doing
27:22
is just sitting there twiddling their thumbs.
27:26
They're already nervous as it is, but now with the zoom
27:30
mediations a lot of times. What I do is if we don't have
27:34
anything to talk about, they don't have any further
27:36
questions. I allow them to turn off their
27:39
camera and their audio, and I will call them when we need them
27:42
again or likewise they can come back in and or call me.
27:46
The whole process seems more civilized in terms of it not
27:50
being as big an imposition in its life, and it seems to still
27:53
be as effective, which is an interesting both and.
27:57
I actually tell the client sometimes that.
27:59
I personally have found it to be more beneficial in most cases
28:03
for it to be remote because guess what, most of the
28:06
insurance adjusters tend to be on the East Coast.
28:10
Before I had have trouble scheduling these mediations
28:13
because no, they're unavailable. They're flying that day to a
28:16
mediation or back from a mediation they can do after
28:19
hours from home. Yeah, that makes a lot of sense.
28:23
In terms of wrap up with the client in the conversation.
28:28
Did you ask them if they have any questions?
28:30
That should always be your last question before wrapping up a
28:34
conversation whether the topic is mediation or not because you
28:37
don't really know what else is on your client's mind that you
28:40
may not have covered. You also have talked about
28:43
having a another conversation either the night before, the
28:47
morning of do you do anything to help them feel comfortable in
28:52
the interim period Along the lines of you know you've got my
28:55
mobile, text me, call me. We don't want you stressing.
28:58
If you've got to worry, reach out.
29:00
Yes, and how do you handle that? Well, generally with my clients,
29:05
any interaction I have with them over the course of the case, I
29:08
always tell them, never hesitate to reach out to me, e-mail, call
29:12
me, I want to answer whatever questions you have, I think with
29:16
the proximity of the conversation the week before and
29:19
reminding them. And again I fill out each client
29:22
some or. You know, want more of the hand
29:26
holding and others want or find and need their space.
29:30
Are there other things that you think we should cover as far as
29:33
preparing a client for mediation?
29:35
I think maybe the questions from the mediator, I do like to
29:40
describe sort of the timeline of what happens with the mediation
29:44
of mediator usually comes in first to our room, you like to
29:48
introduce themselves, they may talk a little bit about
29:51
confidentiality and. Ask you a little bit about
29:55
yourself and then they will spend most of the time in the
29:59
other room because we've made a demand that they haven't
30:01
responded to. And so they're going to have to
30:03
work on them and just give them the whole lay of the land.
30:07
And then I also like to, because I've had this happen, we talked
30:11
about this earlier, sometimes the media starts asking some
30:13
questions of the client and I want to make sure they're
30:17
prepared for that. But also it falls on us as
30:20
lawyers too in our pre. Mediation.
30:23
Talk with a mediator to express that I don't think a joint
30:27
session is right for this case, especially for clients who have
30:31
verbal diarrhea or might say conflicting things.
30:35
I might say, you know, my client doesn't feel really comfortable
30:38
answering a lot of questions or whatever.
30:41
Might be true, but just to avoid that situation, if I can cut it
30:45
off at the pass, that all seems like helpful ways again to make
30:48
sure that the client has the right expectation in terms of
30:52
how the day is going to unfold. Thank you for being with me
30:54
today. Thank you and thank you for
30:57
listening to that. Please e-mail us at podcast at
30:59
Coopers dot Law with questions, comments, feedback and
31:02
suggestions on how you prepare your client for successful
31:05
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31:13
there, Happy hunting.