JURY VERDICTS amidst the pandemic

Here in Washington state, civil cases are slowly making their way back to the “courtrooms”. In King County where Seattle is located, most of the civil trials proceeding at this time are actually taking place not in the courthouse but at the Meydenbauer Center in Bellevue, Washington. This facility has several large conference rooms that allow the trial participants to keep an appropriate physical distance. Courts currently require that all jurors, attorneys, judges and staff be in person and masked at all times. Most judges are allowing any witnesses, including parties, to testify either by video-conferencing or in-person. Voir dire is all by video conferencing in small groupings of five or so prospective jurors at a time and done over several days. Judges are typically being very flexible and understanding with any jurors that are at high risk with COVID and will dismiss them if they express any concern about catching COVID by being required to come to the Meydenbauer Center. Prospective jurors also must have a laptop and good connectivity with wi-fi in order to make it through the voir dire process.

There can be no doubt that the juries that ultimately get impaneled during this time may be of a different composition than might normally be found prior to the pandemic. So, how is this impacting verdicts? I have not done any scientific analysis ( I wish someone were doing so), but based on feed back I’m getting from carriers not only in Washington but around the country, there is a significant percentage of verdicts that are exceeding pre-trial expected ranges. If so, there are likely many reasons for this but let me hypothesize about two. The first, is that a significant percentage of more conservative leaning older folks that are common to serve on juries are opting out due to COVID concerns. And the second possible reason could be that the younger tech savvy jurors that work for Amazon may have a different perspective on the value of money as they reside in $800k 1000 sf condos and see that Russel Wilson makes $35m a year. A whiplash case that could have been accurately predicted to fall within a $10k window is now seemingly resulting in an award two or three times higher than “normal”. A couple of insurance bad faith cases that were valued at six- but not seven-figures have resulted in awards of more than $10m. I have not heard yet of jury verdicts going for less than would be expected. In King County, it is unlikely civil cases will be heading back to normal processes any time soon. Juries historically have been somewhat unpredictable but that seems to be even more the case currently.

Video Conferencing Mediations Can Keep Civil Matters Moving Forward

Times are unprecedented indeed. The coronavirus has us all practicing social or physical distancing. Washington courts are largely closed for the next several months. It is doubtful that any civil jury trials will take place before the fall, if at all this year. Perhaps parties interested in moving their cases forward during these uncertain times should consider early mediations or private trials conducted by video conferencing. Plaintiffs may not have the luxury of waiting another 9 months to a year in order to get a jury trial. Many in-person mediations that can respect the physical distancing requirements. Mediations or arbitrations can also take place by video conferencing or by phone. If interested in trying to move your case forward please contact Weber Mediation.

Great Article by Roger Hillman of Pacific ADR on Professional Malpractice Mediations

In the preparation for and participation in mediation, it is imperative that counsel, both for plaintiffs and defendants, be conscious of the critical role insurance has in resolving any liability matter. Personal (e.g. auto, homeowners) and commercial (e.g. CGL, professional liability) insurance policies impose on the insurer the “duty to defend” any suit or claim under the policy. Coextensive with this is the carrier’s right to control this defense. This includes that the decision to settle rests exclusively with the carrier.

The exceptions to this are professional liability policies (medical, legal). These policies universally include a “consent to settle” clause, which provides that the carrier will not settle any suit or claim without the consent of the insured. This often results in personal counsel for the insured participating in the mediation, even if insurance limits aren’t at play. Policies differ on the treatment of a settlement that the carrier finds reasonable and warranted but to which the insured refuses to consent. Some policies allow the carrier to settle without the insured’s consent, if it finds said consent to be “unreasonably” withheld. There are also policies that provide that, if the insured refuses to consent to a settlement acceptable to the claimant and found reasonable by the carrier, the coverage going forward shall be limited to the amount of the proposed settlement and defense expenses incurred to that date.

Settlement of a professional liability matter has consequences for the defendant well beyond the depletion of his insurance policy limits and a damaged ego. In the case of a healthcare provider, any such settlement must be reported to the National Practitioner Data Bank (NPDB). This is a Federal clearinghouse that maintains information, to a great extent negative information, on healthcare practitioners, including malpractice verdicts and settlements. The NPDB is accessed whenever a practitioner applies for employment, credentials, preferred provider status, and professional liability insurance. In addition, a report to the NPDB is, in turn, reported to the applicable state licensing authority. In many states, including Washington, this triggers, at a minimum, a disciplinary investigation. Any of these could result in a significant negative impact on the practitioner.

While the consequences of a liability settlement on other professionals (lawyers, accountants, etc.) are not as draconian as on healthcare professionals, they still may be substantial. Such settlements, whether of a suit or a claim, should (must) be disclosed to potential employers and insurers. This albatross will follow the professional throughout her/his career.

Many professional liability policies are “self-reducing”; i.e. defense costs are included in, rather than above and beyond, policy limits. Such a policy adds another wrinkle to mediation. In a high value case, in which demand is at or above policy limits, by not settling, thus requiring the defense to continue to incur legal fees and costs, plaintiff must be cognizant that the funds being spent going forward reduce the amount available for settlement. In other words, he/she is spending “his/her own money.”

Awareness and consideration of these factors going into the mediation of a professional liability claim or suit will increase the prospects for a successful resolution.

Advances in Early Mediation in Washington

Research on the New Mainstream—Early Mediation Initiative

The Early Mediation Initiative actually began in 2010 with a series of focus group meetings of lawyers and other professionals to discuss mediation, how it is used, and how its use can be improved in a wide variety of practice settings.  These early focus group gatherings were co-sponsored by the WSBA and KCBA ADR Sections.

 And one thing led to another as the focus discussions led to a WSBA ADR Section-sponsored study of how mediators actually operate; which led to discussions and more focus groups of how the mediation process could be better utilized; which led to a set of recommendations currently under consideration by the WSBA Board of Governors for early mediation; which leads to where we are today.

  Hopefully, the future brings more opportunities for lawyers and litigants to settle their cases early and efficiently, utilizing modern settlement practices, with a wide-range of mediation services available. And, most importantly, what follows is a huge wave of opportunities for a new generation of mediators, with up to date communication/negotiation/listening skills and with modern sensibilities, to work in legal settings. 

 

Some Detail--The WSBA ADR Section in 2012 commissioned an independent research project to identify those practices currently being used by mediators and lawyers to settle cases in Western Washington. 

                        Three significant findings regarding mediation and its effects on the cost of litigation emerged from the survey:

1) Predominately, mediation occurs well into or even late in the litigation process—what may be called--the summit conference at the end of the case;

 2) Early mediation has the potential to significantly reduce the cost of litigation; and

3) Lawyers frequently have pre-session contact with the mediator and such contact saves costs by making the mediation more efficient. 

            Our researcher interviewed more than thirty attorney/mediators whose combined experience in mediation exceeds 50,000 cases. An additional twenty trial lawyers from varied fields (e.g. family law, personal injury, employment and construction) with extensive experience representing clients in mediation were also interviewed. Our research set out not only to identify practices commonly used, but also to identify innovative practices that potentially reduce litigation costs. The resulting Survey Report, Mediation Practices in Law: ­A Survey of Northwest Mediators, by Andre Chevalier, contains a detailed explanation of how mediators operate, particularly with regard to early mediation and innovative use of pre­-session contact.  The Survey results led to a set of recommendations for early mediation adopted this year by the Escalating Cost of Civil Litigation Task Force and can be found online at the WSBA ADR Section website.

            In 2011 the WSBA created a Task Force to assess the costs of civil litigation in Washington state courts and to recommend ways to control those costs.  The Task force created an ADR Subcommittee.  In 2014 with assistance from our Section and with input from our Survey, the ADR Subcommittee provided to the Task Force a set of recommendations for using early mediation.  In 2015 these recommendations were adopted by the Task Force and included in their final report.  The ADR recommendations and Field Notes can be found the ADR website along with links to the final Task Force Report.

            Please contact me at bill@webermediation.com if interested in setting up an early mediation for your case.

Mediation Tip #19: The past has passed, the future overcomes

The past has passed; the future overcomes.

Settlement money won’t turn back the clock but perhaps it can provide an opportunity not to undo the injury but overcome it through lifestyle changes:

  • Teach you how to repair the clock.

  • Get your mind off time and back to living. 

  • Move from the digital world back to the sun dial or vice-versa.

  • Move the plaintiff from thoughts of it being time to pay to time to heal

  • To shift focus from the past to light at the end of the tunnel

  • If nothing else then perhaps it can buy you a new watch

Mediation Tip # 17: get the adjuster in person

It is no secret that a mediation is far more likely to be successful if the claims handler or adjuster is present in person for the mediation. It is much easier for a defense attorney with previous authority to simply say he can go no higher or for an adjuster attending the mediation by phone to say “no” than if he/she were present in person. Plaintiff's (and defense attorneys too that want to get the matter settled), with a King County case and King County adjuster should keep LR 16(b)(3)(B) in mind as it requires the claims handler to be present for the mediation. There are quite a few insurance companies that have a local presence. Reminding counsel of this recently integrated rule could be the difference between a case settling or not. Good luck with your mediation. If you want to mediate with someone that guarantees satisfaction with the result or will refund your fees, give Weber Mediation a call. Thanks for your time, Bill Weber.

Mediation Tip # 21 for a successful mediation: "Nuisance value" is a nuisance

In settlement settings we need to really watch what we say to avoid disengaging the other side. Perhaps no other phrase from the defense can short-circuit a mediation faster than the insulting phrase that the plaintiff's case is worth no more than "nuisance value". When stated in a caucused room, that phrase should never make its way into the other room. Likewise, I recommend that it not be used in any mediation letters or briefs that are shared with the plaintiff. It's expected the defense will contest liability or causation, but the plaintiff will never be receptive to the idea that he or she is a nuisance. It's more than a matter of semantics, it's a matter of respect.

Mediation Tip #20 leading you to a successful mediation: respect the process

If you don’t take the process seriously, then your client won’t either. You may hear from the other side prior to mediation that they believe that your demand is “out in the stratosphere” and that as soon as you “get serious then they will too”. (Perhaps this led to the mediation rather than on-going direct negations). However, statements like “this is ridiculous” in front of your client seemingly question the validity of the caucused process when you merely meant to comment on the lowball offer from the defense. If your client is discouraged out of the gate, the chances of success are reduced. Instead, statements that imply the offer is unrealistic but that don’t undermine the mediation process should be made. Ensuring that your client knows mediation is a process that takes time and counseling with confidence in the process is much more likely to lead to a successful resolution than the converse. Embrace the challenge.