As personal injury lawyers begin to make their way through their practice, an important question often arises: “Do I want to be a trial lawyer, or am I okay just getting good settlements?” This is an important fork in the road, and the path you choose will shape your practice going forward. The choice is affected by the composition of your firm – are you a solo practitioner or part of a large firm? Let’s consider the implications of this choice in the context of a large firm.
On one hand, some lawyers decide early on that their goal is settlement, not trial. They position themselves as settlement specialists, with a mindset of resolving cases without committing to the time and expense required to fully litigate cases. On the other hand, some trial lawyers find that they gain satisfaction from taking cases to verdict, and all that is required to get to that point.
In my experience, consistency in outcomes requires that lawyers taking either approach look the same up to a certain point. There are essential elements of building cases and presenting cases that are the same, whether the audience is an insurance adjuster or a jury. The clients of both lawyers need thorough, well-documented medical analyses and treatment. Both lawyers need to keep an eye on their client’s consistency in presentations to treating doctors and follow-through on treatment. Both lawyers need to have a working understanding of the types of injuries and treatment their client will undergo. Both lawyers need to find the qualities of their clients and the shortcomings of those who’ve hurt them and be able to convey those things in a meaningful way to their intended audience. And, both lawyers need to know what their client’s case is worth and have the discipline to insist on full justice for their client.
Using the litigating lawyers in the firm as sounding boards, all lawyers can gain a good understanding of the steps that need to be taken early on in a case that will make going to trial an option, if necessary. They present themselves and their cases with the same rigor and posture as lawyers intending to go to trial. Yet they also become skilled at identifying the right opportunities to resolve cases fairly through settlement negotiations.
In other words, making the conscious choice to focus on settlement, not trial, of cases is not a choice to take shortcuts, or to take the easy way out. The choice, rather, is one of efficiency. The choice is made in recognition of the reality that being an effective litigation and trial lawyer requires the devotion of considerably more time, planning, thought, and strategizing on each case. The choice also takes into account the inefficiencies in trying to switch back and forth between strategizing and planning for trial and talking settlement to insurance adjusters. These require two different mindsets altogether.
Many of you are familiar with Chad Dudley’s application of Pareto Point, or the “80/20 rule,” principles to the operations of personal injury law firms. Essentially, the rule of thumb is that 80% of a firm’s revenues derive from the top 20% of its cases. The point is that a firm needs to find a way to devote the necessary resources to the top 20% of its cases and work them up accordingly. This rule of thumb tells us that our firms will benefit from having lawyers and resources dedicated to the top 20% of their cases, where actively moving the case toward trial is usually the desired approach, that is not being expended on the 80% of the cases that can be resolved efficiently without going to trial. The flip side, of course, is that there can also be lawyers and resources dedicated to efficiently working the remaining 80% of the firm’s cases.
The key is how the “pre-litigation” lawyer presents himself to the other side. Insurance companies keep close tabs on the tendencies of the plaintiff lawyers they routinely encounter. If insurance companies get wind that you have dedicated yourself to “pre-litigation” cases or perceive you as averse to litigation under any circumstances, they will have little incentive to offer your clients full and fair settlements. Don’t allow the other side the comfort and security of knowing that litigation or trial is not a possibility in your case. All lawyers need to be able to “talk the talk.” In the pre-litigation setting, “walking the walk” will often take the form of showing the discipline to steer settlement negotiations toward the value that you know your client’s case to have, and saying “no” until you get there, knowing that you’ll have a litigating attorney to “walk the walk” with you if necessary.
In this framework, seasoned litigators strengthen the negotiating hand of settlement-minded colleagues. Negotiators then resolve many cases efficiently, while litigators try those that truly warrant it. Together, different skills complement each other for clients’ benefit.
Know Your Strengths
Any personal injury lawyer must understand her strengths and find the right role – negotiator, litigator, or both. Larger firms, with high case counts, have the luxury of being able to accommodate and help develop lawyers with different skill sets and objectives. For this composition to be effective, all must build close ties with those playing other roles. All must present a cohesive team ready to litigate, even in those cases where pre-litigation settlement is the goal. This balanced approach earns insurers’ respect and delivers clients the best results.
Core Settlement Skills
For personal injury lawyers who prefer settling cases without litigation, certain skills are essential. Understanding these skills helps negotiators work closely with litigators to get clients’ full value.
- Negotiators must guide clients through medical treatment, comprehending common injury and recovery patterns. Knowledge of treatment norms and costs lends credibility in valuing claims.
- Negotiators must become skilled in fully evaluating case worth. This independent analysis is crucial, but collaborating with experienced colleagues also informs reasonable settlement ranges.
- Disciplined negotiators must insist on offers reflecting a case’s true value. Saying “no” to undervaluing carriers is key, signaling a willingness to hand off cases to litigators if needed.
- When clear that a fair deal cannot be reached otherwise, negotiators must involve litigators. The integrated leverage of combined settlement and litigation skills often prompts insurers to reassess.
- Finally, the most valuable skill that a negotiation-focused lawyer can have is the ability to identify, early on, one of those top 20% of cases and call upon a litigating colleague to come on board.
Negotiators who master these areas – treatment nuances, case evaluation, discipline, and collaborating with litigators – earn credibility with insurers. Settlements become more attainable without compromising clients’ interests.
The most rewarding negotiator roles involve understanding these core skills. Mastery demonstrates a deep commitment to clients, making settlement solutions more viable. Partnership with seasoned litigators then protects clients’ rights when cases merit a courtroom.