Ep 64: Behind The Scenes of the Mediation Process with Sherman Criner (Part 3)

Clarke, welcome to the catastrophic comeback podcast with American injury lawyer. Clark speaks, helping you find hope, purpose and joy after a catastrophic injury.

So so I'll never forget, when I first started practicing, there was a attorney that you and I both know, phenomenal trial lawyer. This guy was a phenomenal trial lawyer. Your older guy, right? And I remember, one of my buddies from law school came out, was working with him, and he went over to the courthouse to try the case with my buddy. And they were, they were sitting down to try the case, and my buddy turns to him and says, Oh, we don't have the file. And he was, he kind of brushed him off. And he's like, anybody can try, a case with a file, and he tried the case, this is, as you know, and, and he may have won, you know, and, but it was a sort of a small case, and it wasn't as big a deal. And also, this was almost 25 years ago, so so that even though that makes for a good story, and I think that guy was, was a phenomenal trial lawyer that just can't happen anymore. It seems like to me, it seems like the things that you're talking about showing your work and showing them why this case has value, and showing them the different components, the economic reports and those types of things, and the future medical analysis and all that are the key to building these kinds of cases

well. And also, what you're doing right here at Clark is doing a podcast. I mean, I've been practicing 30 years. You've been practicing. I think what 25 years is that we first started out. You know, you get in front of a jury, you're handing them a piece of paper to show a picture of something, you know, you're largely depending on orally, what you can tell the jury and stuff. We've also got to keep up with technology, because technology helps you tell that story. And so you see PowerPoint presentations. You know, we used to read the doctor's deposition. Now we videotape a doctor's deposition, so the doctors, at least there, you know, talking. And the doctor may even be showing something, pointing it out anatomically on a, you know, whether it's a skeleton or X rays or CT scans or something of that nature. And then, you know, there's exhibits that are brought in. You've seen recreations of, you know, actual body parts or whatever brought into this automations that I was talking about and so, and so it's just, you know, as this all goes like we didn't have podcasts, you know, 30 years ago, I mean, and so the technology increases, you know, you see it all the time too, with, you know, cell phones and the data that they have, you know, with somebody texting During a car wreck, you know, things of that nature. So you've kind of got to keep up with all that. So it all is just keeping up to be able to be the best storyteller you can, to do the best you can for your client.

We've talked a lot about, or we've alluded a lot about value, you know, value at mediation, value at trial, value in pre litigation, settlement negotiations. How do you determine? How would somebody determine the value of their claim? How? How do we determine the value of a claim when you're in a mediation, you know? How do you assess, you know, whether we're getting into reasonable territory in a settlement negotiation that could be real hard to determine. First of all, let me be clear, is in these catastrophic cases, I've never, and I've been a part of, you know, sudden figure cases and above that have resolved. And in all of those, the people would have paid back that money not to have had the type of injuries they had, absolutely 100% and so the other thing is that I tell people all the time too, is that you know, if you're initially injured, you hope your case is not worth much. And what I mean by that, that means that you're gonna have a full recovery, and you won't have much problem moving forward in life. But again, we keep talking about catastrophic cases, and that tends to mean that there's gonna be life changing injuries. And so I remember when I first started practicing law, there used to kind of be factors, like, you know, you take the medicals, what were the total medicals? And maybe it's three times medicals, and then maybe something for pain and suffering. And so sometimes, you know, attorneys will try to come up with some of these factors or algorithms trying to come to value, but really it's just more subjective, like, you know, it can also play out as to what jurisdictions you're in. For instance, New Hanover County, I think there's only been, like, one or two medical malpractice verdicts. Yeah, that was successful. We're a very conservative jury pool. There's other areas of the state, or other areas of the country that the jury pools can be much more liberal and are going to give more verdicts in favor of the plaintiff, and then again, there's areas that will give verdicts more favorable for the defendants. So you know, that's what's important about the attorney knowing where the case is going to be. So. That you can sit down with your client and discuss all of these is that okay? This is what has happened to you. This is what we've put together. This is what our anticipation would be, what a jury would do. And typically it's a range. So, you know, if we go to mediation and get in this range, then that's something maybe you should consider. You know, if they're way off that range, then that's when you may decide that we just need to go to trial. But ultimately, that's a discussion you have with your client. I know I seem to be punting a little bit when you say, how do you arrive at the value? There's an art to it. It's not a science. You can't sit down and say, you take a b and c, you put, you know, this number on a, b and c, and this is what you come up with. It's just through experience and attorneys handling things as you get that sense of what the value should be with everything that's in play, whether it's, you know, the the age demographics of your client, what you know, their education level would be, their work history, what their work history moving forward might be. You know, all kinds of things can influence the value of a case. And it's just you've got to sit down and and go through each and every one of those. And again, I know I've said it three or four times, but, you know, put those pieces of the puzzle together to figure out what might be best for your client.

Yeah, so I don't, I don't feel like you're punting or dodging the question at all. I think it's important to recognize that it's that there is no formula, and then anybody suggests a formula is, is misleading someone. And let me be clear too, on one thing, talking about values and stuff, is my job as the mediator is I'm a neutral. Okay, so I'm not on your side. I'm not on the insurance company side. Basically, why mediation works is that if you sat down directly across from the insurance company and tried to settle the case, you're going to get frustrated with each other, and it's going to break down. And it's going to break down fairly quickly, because you're going to start high, they're going to start low, you're going to say they're ridiculous, they're going to say you're ridiculous, and then it becomes kind of personal and emotional, okay? And it's just the nature of when we directly negotiate, my role is I'm taking information back and forth. And so for the people that have not been through a mediation, the way the process works is we all sit down, typically, in the room together, and you give me a thumbnail sketch of what's going on as you see the case, as you kind of paint the picture of your client, what has happened, what you anticipate to happen going forward? And then once you're done, the defendant's attorney will then tell me how they see things, and they're going to see it differently. 

And your job is not to interrupt them or cross examine them. It's hard to do, so I know it's hard to do, and they're not going to interrupt you. And so basically it's just to kind of give me an idea of what's going on. And so we agree to disagree as to how each side sees the case, and then we split up. And when I say split up, you're in one conference room, the defendants are in another conference room, and then my role is going back and forth between the two conference rooms, talking to both sides, and so I can go in the room and tell you how they're looking at the case, but it kind of takes that it's not as personal, and it takes the emotion out as I can say the same thing. Basically, they might say to you across the table, but it allows you to kind of digest what they're saying, discuss it with their client. Doesn't mean you have to agree with it, but just, you know, this is how they're looking at it. And you all discuss things, and then I ultimately go back to the other side and relay the information you're telling me. And it's the same type of thing is that they're not going to, you know, storm out of the room, and it just allows the flow of information to kind of go back and forth to see if we can ultimately resolve the case. And so that's really the trick, is. It allows me to take the emotional element as much as possible out of the negotiation process. I'm not there to make a decision. I'm not there to give legal advice. I'm not there to make recommendations. You know, people often ask me questions such as, you know, do you know? What about you know this or that if you see this occur, my job is just to kind of relay y'all are the ones that are ultimately going to reach a decision, and my job is not to influence what decision is actually made, but rather help the parties just come to an agreement. 

Sherman,you talked a few minutes ago about the process of the mediation. It's the day of mediation, a plaintiff, an injured person, maybe with with a confidant, maybe a wife or a husband comes to my office, the defense, the mean, the defense lawyers and maybe a representative from the insurance company comes there to we, where we sit down in a conference room, I tell or somebody from my office will tell the story of my client. The defense will tell the story of their client in a catastrophic case. I mean, what we would. Do in that situation is we would present, those are the, you know, in advance of that, we would have presented a lot of these pieces that you've talked about. You know, economic reports, medical reports, future medical analysis, medical opinions, animations, legal theories and all these things like we would we get the what we would normally do is give that to them, you know, more than 30 days in advance of that mediation. And the idea is so that they can round table it and do the things they need to do to get the authority they need to resolve the claim. I don't want to surprise anybody at mediation, because they can't, they're not in a position to respond to it, yeah, and then, well, then, and then the the defense will come and they kind of want, will tell their side of it. And then we break out into into different groups. We have the breakout sessions. The plaintiff will come with me or my team, and go into one conference room, the defense will go into another and then, and then, the kind of joke is that you got to have your walking shoes or running shoes, and you don't really that's probably why you're in phenomenal shape, is because you go back and forth so much between and for those you don't, don't know. Sherman is a marathon runner and a and a ultra marathon runner, and I imagine that's probably where you get your lot of your training as a mediation that savesme on my mental health counseling bills, you raised a couple good points, or at least jog my mind to say a couple things. 

One is that a lot of times when it comes to attendance at a mediation, like who's going to be there, one of the things that is personally frustrating for me as a mediator, and you've seen this as well, is that we all have people in our lives that help us make decisions. Of course, you know, you've got a client you're representing, and you're helping them make a decision, but a lot of times what will happen is, I may be and this might actually apply to some of the smaller type cases, is that, you know, I'm there with your client, and we've been mediating for two or three hours, and we finally get to the end of the day, and it's time for them to make a decision, meaning that we've gotten the defense as high as they're ultimately going to pay. And so your client's got to decide. And every once a while, you know, they'll say, Well, let me call you. Know, they want to call their spouse, they want to call their preacher, they want to call their friend, they want to call whoever, and that person has not participated in the mediation, and so they have not sat there for the last 234, hours absorbing all the facts and everything we've learned. And so it's kind of like the analogy that, you know, if you're my dad, and I'm going to go look to go buy a car, and I call you up and say, Hey, Dad, I buy this car, you know, for 10,000 he say, no, let me come down there and look at it and see and stuff and so,

exactly. And so, you know, the person inevitably on the phone will say, That's ridiculous. You know, you need to get a lot more than that. And they don't know anything about the case. They don't know anything about what we discussed at the mediation. So always encourage people to bring whoever they truly need to help them make a decision, whether it's a spouse or or whatever, because they need to participate in that as well. I know that can be one of those decisions you need to make as the attorney, because sometimes people can show up that can actually hurt the process. So but I just one of those things I'm sure you have discussions with is you don't want that phone call taking place at the end where they're calling some third party that you've never spoken to and I've never spoken to,

and they don't have any idea of the facts, they don't have any idea of the process. They've probably never been through a mediation or and it's easy to take a Cavalier position when you're disassociated with the results. So I understand exactly the point that you're making. I think it's a good one. Thank you for joining us, and we'll see you next time you

Clarke, welcome to the catastrophic comeback podcast with American injury lawyer. Clark speaks, helping you find hope, purpose and joy after a catastrophic injury.

So so I'll never forget, when I first started practicing, there was a attorney that you and I both know, phenomenal trial lawyer. This guy was a phenomenal trial lawyer. Your older guy, right? And I remember, one of my buddies from law school came out, was working with him, and he went over to the courthouse to try the case with my buddy. And they were, they were sitting down to try the case, and my buddy turns to him and says, Oh, we don't have the file. And he was, he kind of brushed him off. And he's like, anybody can try, a case with a file, and he tried the case, this is, as you know, and, and he may have won, you know, and, but it was a sort of a small case, and it wasn't as big a deal. And also, this was almost 25 years ago, so so that even though that makes for a good story, and I think that guy was, was a phenomenal trial lawyer that just can't happen anymore. It seems like to me, it seems like the things that you're talking about showing your work and showing them why this case has value, and showing them the different components, the economic reports and those types of things, and the future medical analysis and all that are the key to building these kinds of cases

well. And also, what you're doing right here at Clark is doing a podcast. I mean, I've been practicing 30 years. You've been practicing. I think what 25 years is that we first started out. You know, you get in front of a jury, you're handing them a piece of paper to show a picture of something, you know, you're largely depending on orally, what you can tell the jury and stuff. We've also got to keep up with technology, because technology helps you tell that story. And so you see PowerPoint presentations. You know, we used to read the doctor's deposition. Now we videotape a doctor's deposition, so the doctors, at least there, you know, talking. And the doctor may even be showing something, pointing it out anatomically on a, you know, whether it's a skeleton or X rays or CT scans or something of that nature. And then, you know, there's exhibits that are brought in. You've seen recreations of, you know, actual body parts or whatever brought into this automations that I was talking about and so, and so it's just, you know, as this all goes like we didn't have podcasts, you know, 30 years ago, I mean, and so the technology increases, you know, you see it all the time too, with, you know, cell phones and the data that they have, you know, with somebody texting During a car wreck, you know, things of that nature. So you've kind of got to keep up with all that. So it all is just keeping up to be able to be the best storyteller you can, to do the best you can for your client.

We've talked a lot about, or we've alluded a lot about value, you know, value at mediation, value at trial, value in pre litigation, settlement negotiations. How do you determine? How would somebody determine the value of their claim? How? How do we determine the value of a claim when you're in a mediation, you know? How do you assess, you know, whether we're getting into reasonable territory in a settlement negotiation that could be real hard to determine. First of all, let me be clear, is in these catastrophic cases, I've never, and I've been a part of, you know, sudden figure cases and above that have resolved. And in all of those, the people would have paid back that money not to have had the type of injuries they had, absolutely 100% and so the other thing is that I tell people all the time too, is that you know, if you're initially injured, you hope your case is not worth much. And what I mean by that, that means that you're gonna have a full recovery, and you won't have much problem moving forward in life. But again, we keep talking about catastrophic cases, and that tends to mean that there's gonna be life changing injuries. And so I remember when I first started practicing law, there used to kind of be factors, like, you know, you take the medicals, what were the total medicals? And maybe it's three times medicals, and then maybe something for pain and suffering. And so sometimes, you know, attorneys will try to come up with some of these factors or algorithms trying to come to value, but really it's just more subjective, like, you know, it can also play out as to what jurisdictions you're in. For instance, New Hanover County, I think there's only been, like, one or two medical malpractice verdicts. Yeah, that was successful. We're a very conservative jury pool. There's other areas of the state, or other areas of the country that the jury pools can be much more liberal and are going to give more verdicts in favor of the plaintiff, and then again, there's areas that will give verdicts more favorable for the defendants. So you know, that's what's important about the attorney knowing where the case is going to be. So. That you can sit down with your client and discuss all of these is that okay? This is what has happened to you. This is what we've put together. This is what our anticipation would be, what a jury would do. And typically it's a range. So, you know, if we go to mediation and get in this range, then that's something maybe you should consider. You know, if they're way off that range, then that's when you may decide that we just need to go to trial. But ultimately, that's a discussion you have with your client. I know I seem to be punting a little bit when you say, how do you arrive at the value? There's an art to it. It's not a science. You can't sit down and say, you take a b and c, you put, you know, this number on a, b and c, and this is what you come up with. It's just through experience and attorneys handling things as you get that sense of what the value should be with everything that's in play, whether it's, you know, the the age demographics of your client, what you know, their education level would be, their work history, what their work history moving forward might be. You know, all kinds of things can influence the value of a case. And it's just you've got to sit down and and go through each and every one of those. And again, I know I've said it three or four times, but, you know, put those pieces of the puzzle together to figure out what might be best for your client.

Yeah, so I don't, I don't feel like you're punting or dodging the question at all. I think it's important to recognize that it's that there is no formula, and then anybody suggests a formula is, is misleading someone. And let me be clear too, on one thing, talking about values and stuff, is my job as the mediator is I'm a neutral. Okay, so I'm not on your side. I'm not on the insurance company side. Basically, why mediation works is that if you sat down directly across from the insurance company and tried to settle the case, you're going to get frustrated with each other, and it's going to break down. And it's going to break down fairly quickly, because you're going to start high, they're going to start low, you're going to say they're ridiculous, they're going to say you're ridiculous, and then it becomes kind of personal and emotional, okay? And it's just the nature of when we directly negotiate, my role is I'm taking information back and forth. And so for the people that have not been through a mediation, the way the process works is we all sit down, typically, in the room together, and you give me a thumbnail sketch of what's going on as you see the case, as you kind of paint the picture of your client, what has happened, what you anticipate to happen going forward? And then once you're done, the defendant's attorney will then tell me how they see things, and they're going to see it differently. 

And your job is not to interrupt them or cross examine them. It's hard to do, so I know it's hard to do, and they're not going to interrupt you. And so basically it's just to kind of give me an idea of what's going on. And so we agree to disagree as to how each side sees the case, and then we split up. And when I say split up, you're in one conference room, the defendants are in another conference room, and then my role is going back and forth between the two conference rooms, talking to both sides, and so I can go in the room and tell you how they're looking at the case, but it kind of takes that it's not as personal, and it takes the emotion out as I can say the same thing. Basically, they might say to you across the table, but it allows you to kind of digest what they're saying, discuss it with their client. Doesn't mean you have to agree with it, but just, you know, this is how they're looking at it. And you all discuss things, and then I ultimately go back to the other side and relay the information you're telling me. And it's the same type of thing is that they're not going to, you know, storm out of the room, and it just allows the flow of information to kind of go back and forth to see if we can ultimately resolve the case. And so that's really the trick, is. It allows me to take the emotional element as much as possible out of the negotiation process. I'm not there to make a decision. I'm not there to give legal advice. I'm not there to make recommendations. You know, people often ask me questions such as, you know, do you know? What about you know this or that if you see this occur, my job is just to kind of relay y'all are the ones that are ultimately going to reach a decision, and my job is not to influence what decision is actually made, but rather help the parties just come to an agreement. 

Sherman,you talked a few minutes ago about the process of the mediation. It's the day of mediation, a plaintiff, an injured person, maybe with with a confidant, maybe a wife or a husband comes to my office, the defense, the mean, the defense lawyers and maybe a representative from the insurance company comes there to we, where we sit down in a conference room, I tell or somebody from my office will tell the story of my client. The defense will tell the story of their client in a catastrophic case. I mean, what we would. Do in that situation is we would present, those are the, you know, in advance of that, we would have presented a lot of these pieces that you've talked about. You know, economic reports, medical reports, future medical analysis, medical opinions, animations, legal theories and all these things like we would we get the what we would normally do is give that to them, you know, more than 30 days in advance of that mediation. And the idea is so that they can round table it and do the things they need to do to get the authority they need to resolve the claim. I don't want to surprise anybody at mediation, because they can't, they're not in a position to respond to it, yeah, and then, well, then, and then the the defense will come and they kind of want, will tell their side of it. And then we break out into into different groups. We have the breakout sessions. The plaintiff will come with me or my team, and go into one conference room, the defense will go into another and then, and then, the kind of joke is that you got to have your walking shoes or running shoes, and you don't really that's probably why you're in phenomenal shape, is because you go back and forth so much between and for those you don't, don't know. Sherman is a marathon runner and a and a ultra marathon runner, and I imagine that's probably where you get your lot of your training as a mediation that savesme on my mental health counseling bills, you raised a couple good points, or at least jog my mind to say a couple things. 

One is that a lot of times when it comes to attendance at a mediation, like who's going to be there, one of the things that is personally frustrating for me as a mediator, and you've seen this as well, is that we all have people in our lives that help us make decisions. Of course, you know, you've got a client you're representing, and you're helping them make a decision, but a lot of times what will happen is, I may be and this might actually apply to some of the smaller type cases, is that, you know, I'm there with your client, and we've been mediating for two or three hours, and we finally get to the end of the day, and it's time for them to make a decision, meaning that we've gotten the defense as high as they're ultimately going to pay. And so your client's got to decide. And every once a while, you know, they'll say, Well, let me call you. Know, they want to call their spouse, they want to call their preacher, they want to call their friend, they want to call whoever, and that person has not participated in the mediation, and so they have not sat there for the last 234, hours absorbing all the facts and everything we've learned. And so it's kind of like the analogy that, you know, if you're my dad, and I'm going to go look to go buy a car, and I call you up and say, Hey, Dad, I buy this car, you know, for 10,000 he say, no, let me come down there and look at it and see and stuff and so,

exactly. And so, you know, the person inevitably on the phone will say, That's ridiculous. You know, you need to get a lot more than that. And they don't know anything about the case. They don't know anything about what we discussed at the mediation. So always encourage people to bring whoever they truly need to help them make a decision, whether it's a spouse or or whatever, because they need to participate in that as well. I know that can be one of those decisions you need to make as the attorney, because sometimes people can show up that can actually hurt the process. So but I just one of those things I'm sure you have discussions with is you don't want that phone call taking place at the end where they're calling some third party that you've never spoken to and I've never spoken to,

and they don't have any idea of the facts, they don't have any idea of the process. They've probably never been through a mediation or and it's easy to take a Cavalier position when you're disassociated with the results. So I understand exactly the point that you're making. I think it's a good one. Thank you for joining us, and we'll see you next time you