Most cases resolve before a trial. While thorough preparation for trial is paramount, most of our policyholder clients want a resolution as quickly as possible and for a much as possible. Settling a case for less than its value is an easy way to get a quick resolution. Settling a case for more than its value in a short period of time is a lot more difficult, and, that is what some of our clients expect us to magically accomplish.
Twenty-five years of practice, study and experience has taught me a lot about negotiation and resolution of insurance controversies. This past week, I spoke at the Florida Justice Association Winter Seminar in Beaver Creek, Colorado, on the topic of insurance claim resolutions. The presentation, "What Even Seasoned Attorneys Need to Know About Current Techniques of Persuasion When Discussing Issues of Insurer Misconduct," seemed well received by the audience. One attorney told me he was at the last three of my annual speeches at these ski seminars and that this was by far the best. I guess that is a nice way of saying the others were not so good.
While I cannot report the value of payment by Factory Mutual in the Port of New Orleans case because of settlement stipulations, the case settled at an amount approved by the Port’s General Counsel and Board. This occurred about one month after the General Counsel noted that significant negotiations probably would not take place until the late spring of 2009. The actual settlement numbers were reached in September, 2008, less than 11 months after we were retained.
The truth is that except for me and my consultants, nobody thought we could accomplish a fair resolution quickly. The case was very complex, and the parties were stridently opposed before the mediation. I am sure that counter intuitive communicative techniques I spoke about in my speech prevented months of tedious and expensive trial preparation for a trial that would conclude almost a year after the settlement actually resolved the case. The consultants include my close friends, Jack Stein, Jerrod Mills and Ken Shively from Trial Exhibits and Legal Images. They have seen what has worked well and what has not at my settlement presentations over the past thirteen years. The Port of New Orleans case was important, and their hard work helped highlight the points I intended to convey. I also borrowed communicative points from a "coach" of mine, Mike Lindstrom who studied under a very famous communicator, Tony Robbins.
To influence and persuade another intelligent human to take action and do something that they would not otherwise do, I believe you have to convey the following:
1. Compassion
2. Authenticity
3. Genuine Caring
4. Passion
These communicative characteristics might seem foreign to a person like me who "battles" for a living. I believe that big dollar cases are resolved by intelligent executives who have huge egos. They dislike bullies and may even "bully" others. They are not afraid, and that is why they were chosen for top management in the first place.
These concepts do not make the negotiation some "let’s be happy together" or "kumbaya" session. When eight and nine figure case settlements are ongoing, it is always pointed, tough, and exhausting. The key is to effectively communicate so that the insurance company acts in our client’s interest.
I will explain each of the above concepts in a follow-up blog. However, these same concepts can be used in all life interactions where one is trying to influence others to take positive actions for mutual benefit. It is amazing that they are not taught in law school or in litigation and negotiation theory. Maybe quick resolution is not usually in most attorneys best interests?
