Mediation – The Plaintiff’s Perspective
MEDIATION – THE PLAINTIFFS PERSPECTIVE
PRODUCT LIABILITY: A Road Map to Mediation or trial
March 11, 2006
New Jersey Law Center
NJ Institute for Continuing Legal Education Seminar
Presented by: Andrew J. Rossetti
Rossetti & DeVoto P.C
Preparing your client for mediation.
How is (s)he to dress? No body piercing, wild cloths etc. visual impressions last.
Make sure they know the verdict ranges and settlement ranges.
Make sure they know the costs involved in taking the case to trial.
Stress this is a benefit to him/her, it is better than being sent into the hall before the jury comes in to make a decision in less than 5 minutes.
This is your client’s day in court!! Let them talk.
Role of plaintiff attorneys
Present the facts
Advocate but Do Not become a heated advocate or intransigent at the mediation table when facing the opposition is not an effective technique for case resolution.
Appear knowledgeable and desirous of a fair resolution this presents a position of strength as opposed to weakness.
Anger will signify that the attorney is worried about the case and probably posturing to cover its legal and factual weaknesses.
Don’t be afraid to show your cards
Know the law, re-read the Jury Charges that apply, address evidentiary issues (admission of the smoking gun)
Insist decision makers be present
Defendant or Adjuster
Lien Holder, w/c lawyer present
Take the time to prepare a well-reasoned and organized mediation brief.
Include bullet points on law
Prepare documentary and/or demonstrative evidence in binders, 30×40’s, etc. Insurance representatives will be impressed with well-prepared presentations.
Explain your client’s view of the case as objectively as possible.
Concede any weaknesses in plaintiff’s case and strengths in the defendant’s case. (Enhances your credibility and increase the case’s value).
Allow plaintiff to talk about his/her injuries and present condition.
A plaintiff who has had this opportunity feels better about the process, is more receptive to hearing defendant’s view of the case and is more willing to “hear” the mediator’s “reality check” speech during caucus.
Discuss the efficacy of having the mediator do a reality check for the plaintiff.
Explain to plaintiff that the settlement value of the case has to be discounted because of potential collection delays after trial which delays include post- trial motions, appeal, bankruptcy, etc. A jury verdict is frequently just one step in the negotiation process.
Factor into valuation the chances of winning v. losing. Remember the legal adage that even the best case has a 10% chance of being lost.
Discuss liability, damages, and venue in evaluating a case. Even the best liability and damages case may be in trouble if it is filed in a conservative venue.
However, make sure that plaintiff’s initial demand is not such that the insurance representative is insulted.
An experienced mediator may be a good sounding board when determining what to demand.
Additionally, if you have confidence in the mediator, you may want to let him/her know plaintiff’s “bottom line” and let him/her then work to reach or cross over that line.
The Resolution of the Case
Require a written document to be executed and signed at the time by both parties to finally resolve the matter.
Prevents “second thoughts.”
Comforts your clients
Benefits of Mediation
Results. Statistically, plaintiffs win more often in arbitration/mediation than in trial. Statistics indicate that plaintiffs prevail 63% of the time in arbitration versus approximately 15% of the time in litigation. Michael Green, Debunking the Myth of Employer Advantage from Using Mandatory Arbitration from Discrimination Claims, 31 Rutgers L.J. 399 (2000).
Clients feel like they had their day in court
Learn about your case and your opponents
Tough to get no-caused at mediation
The Future of Mediation
Expect there will be electronic mediations, by either telephone or audio visual transmissions wherein we see everyone on the television and we can have a mediator from any location.
Andrew J. Rossetti is a Partner in Rossetti & DeVoto P.C. aplaintiff’s firm specializing in Product liability, Medical Malpractice, Construction Accidents and Motor Vehicle Accident litigation. He is a former Assistant Prosecutor of Camden County. He is certified as a civil trial attorney by both the New Jersey Supreme Court and the National Board of Trial Advocacy and is a member of the prestigious million dollar advocate’s forum.
Mr. Rossetti was recently recognized by The New Jersey Law Journal in its annual Top 10 Verdicts and Settlements issue on two separate occasions for cases he handled in 2002 and 2003.
Andrew is serves on the Board of the Products Liability Committee section of the New Jersey State Bar Association and is a past Board of Governor for the Association of Trial Lawyers of New Jersey. He also serves on the Civil Practice Committee for the Camden County Bar Association and is frequently invited to lecture at New Jersey’s Institute of Continuing Education where he teaches trial strategy and tactics to other lawyers.
Andrew was selected by his peers for inclusion in The Best Lawyers in America, a publication widely regarded by the legal profession and public as a definitive guide to legal excellence in the United States.
He has extensive jury trial experience and is admitted to practice law in the U. S. Supreme Court and all Federal and State Courts in New Jersey and Pennsylvania.