Ep 65: Critical Mistakes Made During Mediation with Sherman Criner (Part 4)

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

What are mistakes that people make at mediation or prior to mediation? It really cost them money in a mediation or in a claim or a catastrophic context, well, not showing up, and we see that happen from time to time. Just they need, people need to be cognizant of how they present at a mediation. Is like, you know, somebody defense attorneys are smart. You know, the insurance companies can hire whatever attorneys they want across the country, and they hire the best, and you know that. So it's it's a real clash of the Gladiator, so to speak. And so those attorneys are there, and they're picking up on clues and cues that we may not even think about. So you may have somebody that you know your clients telling you that like you know, since this accident, I have not been able to leave the house for six months. And then they show up at mediation, and they've got the deepest, darkest tan you've ever seen. Or, you know, they say that, you know, I used to do a lot of stuff around the house, and I can't do anything around the house that you know are in the yard, or do any things I used to do. And I just kind of sit around, and you meet them, and they've just got, like, real calloused hands, you know, they're out there, still doing stuff, or you've seen it too, where, like, you've been surprised with surveillance that they've had of your class, social media. Social media, yes, social media, exactly that somebody says, you know,

you know, had this hip injury and I've not been able to do anything. And then, lo and behold, you get the mediation, and the defendants show you a guy walking 18 holes of golf and same seeming to swing, you know, free and hitting the ball better than you and I could so things of that nature is that I'm not saying somebody should not be doing things. What I'm saying is that there needs to be that consistency of whatever their medical records say is how they're actually presenting themselves. And doctors will tell you is that, you know,

they want people to be as active as possible. And so you know, if somebody has a back injury or knee injury, and the doctors tell them to go walk and they're walking, you know, so long as it's consistent, the doctors tell them to need to be walking and they're walking. But you know, if they're telling them to go walk, and then they're saying that, you know, I can't walk because I'm in so much pain. And then you see them at the gym, and they're squatting 300 pounds, and, you know, playing rugby and the local, you know, team and stuff. Then, you know, they got to be aware of that. I feel like that's part of my responsibility as a plaintiff's lawyer, is to properly investigate and advise my client, and then to identify if a if a client is not

truly injured or not injured, is exaggerating his or her condition. Then part of my responsibility is to identify that and to correct that and to adjust my demand accordingly. Yeah, I don't think you just, you just don't need to exaggerate things. I mean, you know, people get injured, and doctors want you to be as active as possible and do things. And it's that consistency. The problem is, when there's not that consistency, and they're telling the doctors one thing, they're doing something else, they're telling you something and they're being caught doing something else, it's starting to go down that road that when they get if it goes to trial, then they can be set up to look like a liar. And then, you know how it is, is like, once you've lied about one thing that can really undercut the value of your claim and destroy it. That's right. So the biggest thing is just be truthful. I mean, people have different recovery levels. You know, there's good days, bad days. You know that people have, we all have those. You know, some days we feel better than others, and sometimes we can do more than we can at other times. And so I think the biggest thing is just, you know, just be honest, in a catastrophic context, my observation. So tell me if you if your observation is the same, is that really we have sort of the opposite experience in that our the catastrophic claims that we have,

where you talking about people who have been burned in fires, you know, paralyzed from the waist down, paralyzed from the down, lost limbs, lost you know, what I find is some of those guys actually will try to recover too quickly. And they would like, I'm picturing this, you know, a couple of different clients that I have that have a paralysis, either quadriplegia or paraplegia, and the work that they put in to try to gain even a little bit of function is, is really inspiring, and it's kind of a is kind of unbelievable, and kind of depositions, they'll kind of overstate their abilities or their, you know, you know, yes, I'm going to be able to walk again. You'll see, you know. And so I think, to your point is probably important to neither understate nor overstate and just be.

Be very matter of fact and frank about

what's what's going on, what's your condition is? Yeah, I think a lot of times people just want to, they want to be independent. Everybody wants to be independent. So when you have these catastrophic injuries, is they don't want to be a burden on somebody else. And so they're overstating, like, look, I can do this. I'm fine, you know? And so they're, they're trying, is a big thing, right? They're trying to avoid being a burden on somebody else. And you see this too with the catastrophic type injuries, is that they are some of the most inspiring people I've ever met. Is that you would think you go in there and that they are just destroyed, and they will be the most thankful people. They are some of the kindest people, but they're just

inspirational. Is that, you know, they've been dealt a bad hand, but letting, instead of letting it destroy them, kind of mentally and emotionally, they're typically some of the mentally and emotionally strongest people I've ever met. You know, just talking with them, and you know how they're

doing the best that they can, and it's just amazing sometimes, yeah, it's hard to, it's like, it's like, you wonder, you know, what I have, would I be able to respond? You know? Sometimes, you know, I've heard it said before. It's not so much

a terrible thing that happens to you, that defines you, but it's your response to the terrible thing. And you wonder if, if, if you were ever faced with something like that, God forbid, if you'd be able to to handle it with that kind of strength and grace.

Well, so one of the things that you mentioned was,

these are some things that some things that might

harm a person's case, going into a mediation or going into a trial. What are things that they can do? Are there? Are there additional things that they can do to to put themselves in a position of strength going into a mediation, biggest thing is to follow the doctor's instructions. And you know, we live in this opioid type of crisis situation, and so, you know, take the medications as they're being prescribed.

You You know, follow up with appointments. You know, don't be canceling appointments. Do the best you can in physical therapy, rehab,

be available. You know if

you need to call them or Sure, yeah, sometimes folk rehabs involve something of that nature. And so

it's just really kind of a checklist of just going through and doing the things that you're told to do so that you know you you don't want to be missing appointments that you know would appear that you know you're not trying to get better. Diligence, organization, follow through. Those types of things are important, staying in contact with you, you know, not disappearing, not not meaning call you, you know, daily, or anything of that nature. But if something happens like you know, I'm sure you want to hear after they've had a follow up with the doctor, if the doctor is recommending surgery, you want to know, you know, with PT, if they call to schedule things, or if there's a nurse case manager, you know, if they call you, they should be able to get in touch with you. Be polite. I hate to say that, but you know, a lot of these people that you're dealing with, and when I say you, I mean your client, they're documenting things in writing, and you and I both seen medical records that you just I mean, I cannot believe my client was saying those type of things. I did a mediation A while back, and

just the language the person was using with the nurses and the combat combativeness, and they ultimately ended up getting arrested. You know, it's in the medical records. It's documented. Same thing with nurse case managers and physical therapists. It's all documented, you know, is that

you just need to be reflective of that this is all going to come back in this puzzle. And do you want those pieces put in front of a jury of 12? Because, you know, the more they like somebody, the more they're going to

find in that person's favor. And so you've had clients too, it's like, they may have very severe injuries and stuff, but they're just not a likable person. And then if you have the little, you know, 70 year old grandmother who is just, you know, Aunt Bea from Mayberry, that everybody loves, you know, who's going to probably get a better verdict, and that's what the insurance company is going to evaluating when they're at mediation is that, you know, this is the type of person I personally like. Everybody likes the jury's gonna like, you know, I don't want to try this case, because I can't make this person look bad on the stand. Or if I make them look bad, they're gonna get mad at me and make it even worse. Whereas, opposed, if you get somebody up there that they've got all these like, bad things in their medical records, and they can just make this person really look bad, then it's going to work against them in court, which gets reflected in what happens at mediation, which is kind of what we're talking about. Yeah, that makes sense. I can think of some specific examples of what you're talking about as we're as we're sitting here. One of the things that we.

We hear about, and it's a tool that's available sometimes, is arbitration. Can you talk to us about that and then compare it to our mediation? How is it the same and how is it different? So what we're talking about, this all fund, falls under a broader umbrella of alternative dispute resolution, and this was kind of when we go back to talking about in the 70s and stuff about how the court system was trying to find ways

to clean up some of the document docket, keep cases moving forward. And so there's all kinds of different procedures. So you've got mediation, which is somebody like myself coming in and just basically going back and forth between the parties to help them negotiate.

There's also arbitration. And arbitration, I think the easiest way to explain it is a private judge, and so a lot of times there will be arbitration clauses in kind of agreements between companies, because companies think

the traditional litigation route is very cumbersome and very expensive. And arbitration as seen as a way for the parties to kind of retain control and do an abbreviated type of trial situation, more efficient streamline. You don't you don't have 12 jurors. Typically, what people would say with arbitration is you're probably less likely to hit a home run from either side. And so the way that works is that you handle the case basically the same way you would that we've discussed, and then there's an arbitration and what that would be is that we're in a conference room, I'm sitting at the head of the table, you're on one side of the table, the defendants are on the other side of the table, and you do an abbreviated trial. And when I say an abbreviated trial is that you may have experts that otherwise would come testify

in a trial setting, but in an arbitration setting, you may just have a report, and you may only pick, you know, a paragraph or two out of the report that you're wanting me to read. And you'll have a trial notebook. You'll have the medical records, there typically be a summary, and you may go through the high points of those medical records, there tends not to be a lot of corroborating witnesses. So your client may testify. There may be another person that may testify, you know, just to

reiterate some of the things that they're saying, or maybe they've seen things from a little bit different aspect, like a loved one around the house, some of the things that they're having to do for your client. Then the defendants go and they present their case, and they may have competing medical experts, or they may have, you know, whatever, witnesses, and some of it's presented, you know, whether it's affidavits or the same type of thing. And then there can be closing arguments, and there can also be kind of presentation of written closing arguments. Sometimes the parties will present me with case law that they want me to pay attention to and exhibits, and then we go back, and then I go back and make a decision. And that's a single panel arbitration, meaning I'm the only arbitrator

a lot of times, or more typically, what you will see is called a three panel arbitration, and the way that works is that you will pick an arbitrator, meaning the plaintiff, and you'll probably pick somebody that is typically more plaintiff oriented, and then the defendants will pick an arbitrator, and that arbitrator they pick will probably be more defense oriented, and then those two arbitrators will pick a third arbitrator, which is typically where I fall in, is they'll contact me, and I'm called a referee, and the three of us will hear the case. And so it's the same scenario I just went through of how the case is presented to us, and then we go back into a room, and we may sit there for, you know, several hours. Sometimes it can, you know, we may need to read some stuff and then re meet down the road. I've done arbitrations that lasted, you know, five, six weeks. I mean, they can, they can last longer than trials, depending on what kind of monetary relief and stuff is being sought. But anyway, the three of us sit down and we try to come to a unanimous verdict.

Does not have to be unanimous. We have issued from time to time, two to one decisions, but it is binding, meaning that once we issue it, it's just like with a jury, it's over with, it's over and done. It's binding. You can do non binding arbitration. It's usually not done too often, simply because what's the point of doing it? A couple other little things that I've been asked to do over the years is neutral evaluation. Is sometimes the parties,

for whatever reason, the attorneys may have an idea of what they think the value of the case is, but they can't quite close the deal. And maybe, like, you want to hire me as like, almost, it's almost like a second opinion is that you get the opposing attorney say, hey, let's get Sherman to do a Neutral Evaluation for us to give him what he typically sees this type of case settle for. Because maybe your client

thinks they should get more than than maybe you're recommending, that you're recommending, and maybe you're just like, hey, let's get, you know, a Neutral Evaluation, because, you know, a media.

Is not going to get you additional money, right? Sometimes the defendants want it. Sometimes they've got a client who's, you know, not willing to give them more money. And they may approach me and say, Hey, can you do a Neutral Evaluation for us? It would just help me to try to get that kind of last little step, to get the money done and stuff. So I've done some of those where the parties will tend to present evidence or the facts of the case to me and stuff. And I'll just, you know, write them back as typically, you know, my 30 years of experience, and my experience of mediating these type of cases and these elements and these factors, this is, and I usually give them a range. This is the range that I typically see that this case will resolve in. And I don't know what y'all have previously discussed, and then, you know, I've gotten feedback that that helped the parties get things resolved. 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.

What are mistakes that people make at mediation or prior to mediation? It really cost them money in a mediation or in a claim or a catastrophic context, well, not showing up, and we see that happen from time to time. Just they need, people need to be cognizant of how they present at a mediation. Is like, you know, somebody defense attorneys are smart. You know, the insurance companies can hire whatever attorneys they want across the country, and they hire the best, and you know that. So it's it's a real clash of the Gladiator, so to speak. And so those attorneys are there, and they're picking up on clues and cues that we may not even think about. So you may have somebody that you know your clients telling you that like you know, since this accident, I have not been able to leave the house for six months. And then they show up at mediation, and they've got the deepest, darkest tan you've ever seen. Or, you know, they say that, you know, I used to do a lot of stuff around the house, and I can't do anything around the house that you know are in the yard, or do any things I used to do. And I just kind of sit around, and you meet them, and they've just got, like, real calloused hands, you know, they're out there, still doing stuff, or you've seen it too, where, like, you've been surprised with surveillance that they've had of your class, social media. Social media, yes, social media, exactly that somebody says, you know,

you know, had this hip injury and I've not been able to do anything. And then, lo and behold, you get the mediation, and the defendants show you a guy walking 18 holes of golf and same seeming to swing, you know, free and hitting the ball better than you and I could so things of that nature is that I'm not saying somebody should not be doing things. What I'm saying is that there needs to be that consistency of whatever their medical records say is how they're actually presenting themselves. And doctors will tell you is that, you know,

they want people to be as active as possible. And so you know, if somebody has a back injury or knee injury, and the doctors tell them to go walk and they're walking, you know, so long as it's consistent, the doctors tell them to need to be walking and they're walking. But you know, if they're telling them to go walk, and then they're saying that, you know, I can't walk because I'm in so much pain. And then you see them at the gym, and they're squatting 300 pounds, and, you know, playing rugby and the local, you know, team and stuff. Then, you know, they got to be aware of that. I feel like that's part of my responsibility as a plaintiff's lawyer, is to properly investigate and advise my client, and then to identify if a if a client is not

truly injured or not injured, is exaggerating his or her condition. Then part of my responsibility is to identify that and to correct that and to adjust my demand accordingly. Yeah, I don't think you just, you just don't need to exaggerate things. I mean, you know, people get injured, and doctors want you to be as active as possible and do things. And it's that consistency. The problem is, when there's not that consistency, and they're telling the doctors one thing, they're doing something else, they're telling you something and they're being caught doing something else, it's starting to go down that road that when they get if it goes to trial, then they can be set up to look like a liar. And then, you know how it is, is like, once you've lied about one thing that can really undercut the value of your claim and destroy it. That's right. So the biggest thing is just be truthful. I mean, people have different recovery levels. You know, there's good days, bad days. You know that people have, we all have those. You know, some days we feel better than others, and sometimes we can do more than we can at other times. And so I think the biggest thing is just, you know, just be honest, in a catastrophic context, my observation. So tell me if you if your observation is the same, is that really we have sort of the opposite experience in that our the catastrophic claims that we have,

where you talking about people who have been burned in fires, you know, paralyzed from the waist down, paralyzed from the down, lost limbs, lost you know, what I find is some of those guys actually will try to recover too quickly. And they would like, I'm picturing this, you know, a couple of different clients that I have that have a paralysis, either quadriplegia or paraplegia, and the work that they put in to try to gain even a little bit of function is, is really inspiring, and it's kind of a is kind of unbelievable, and kind of depositions, they'll kind of overstate their abilities or their, you know, you know, yes, I'm going to be able to walk again. You'll see, you know. And so I think, to your point is probably important to neither understate nor overstate and just be.

Be very matter of fact and frank about

what's what's going on, what's your condition is? Yeah, I think a lot of times people just want to, they want to be independent. Everybody wants to be independent. So when you have these catastrophic injuries, is they don't want to be a burden on somebody else. And so they're overstating, like, look, I can do this. I'm fine, you know? And so they're, they're trying, is a big thing, right? They're trying to avoid being a burden on somebody else. And you see this too with the catastrophic type injuries, is that they are some of the most inspiring people I've ever met. Is that you would think you go in there and that they are just destroyed, and they will be the most thankful people. They are some of the kindest people, but they're just

inspirational. Is that, you know, they've been dealt a bad hand, but letting, instead of letting it destroy them, kind of mentally and emotionally, they're typically some of the mentally and emotionally strongest people I've ever met. You know, just talking with them, and you know how they're

doing the best that they can, and it's just amazing sometimes, yeah, it's hard to, it's like, it's like, you wonder, you know, what I have, would I be able to respond? You know? Sometimes, you know, I've heard it said before. It's not so much

a terrible thing that happens to you, that defines you, but it's your response to the terrible thing. And you wonder if, if, if you were ever faced with something like that, God forbid, if you'd be able to to handle it with that kind of strength and grace.

Well, so one of the things that you mentioned was,

these are some things that some things that might

harm a person's case, going into a mediation or going into a trial. What are things that they can do? Are there? Are there additional things that they can do to to put themselves in a position of strength going into a mediation, biggest thing is to follow the doctor's instructions. And you know, we live in this opioid type of crisis situation, and so, you know, take the medications as they're being prescribed.

You You know, follow up with appointments. You know, don't be canceling appointments. Do the best you can in physical therapy, rehab,

be available. You know if

you need to call them or Sure, yeah, sometimes folk rehabs involve something of that nature. And so

it's just really kind of a checklist of just going through and doing the things that you're told to do so that you know you you don't want to be missing appointments that you know would appear that you know you're not trying to get better. Diligence, organization, follow through. Those types of things are important, staying in contact with you, you know, not disappearing, not not meaning call you, you know, daily, or anything of that nature. But if something happens like you know, I'm sure you want to hear after they've had a follow up with the doctor, if the doctor is recommending surgery, you want to know, you know, with PT, if they call to schedule things, or if there's a nurse case manager, you know, if they call you, they should be able to get in touch with you. Be polite. I hate to say that, but you know, a lot of these people that you're dealing with, and when I say you, I mean your client, they're documenting things in writing, and you and I both seen medical records that you just I mean, I cannot believe my client was saying those type of things. I did a mediation A while back, and

just the language the person was using with the nurses and the combat combativeness, and they ultimately ended up getting arrested. You know, it's in the medical records. It's documented. Same thing with nurse case managers and physical therapists. It's all documented, you know, is that

you just need to be reflective of that this is all going to come back in this puzzle. And do you want those pieces put in front of a jury of 12? Because, you know, the more they like somebody, the more they're going to

find in that person's favor. And so you've had clients too, it's like, they may have very severe injuries and stuff, but they're just not a likable person. And then if you have the little, you know, 70 year old grandmother who is just, you know, Aunt Bea from Mayberry, that everybody loves, you know, who's going to probably get a better verdict, and that's what the insurance company is going to evaluating when they're at mediation is that, you know, this is the type of person I personally like. Everybody likes the jury's gonna like, you know, I don't want to try this case, because I can't make this person look bad on the stand. Or if I make them look bad, they're gonna get mad at me and make it even worse. Whereas, opposed, if you get somebody up there that they've got all these like, bad things in their medical records, and they can just make this person really look bad, then it's going to work against them in court, which gets reflected in what happens at mediation, which is kind of what we're talking about. Yeah, that makes sense. I can think of some specific examples of what you're talking about as we're as we're sitting here. One of the things that we.

We hear about, and it's a tool that's available sometimes, is arbitration. Can you talk to us about that and then compare it to our mediation? How is it the same and how is it different? So what we're talking about, this all fund, falls under a broader umbrella of alternative dispute resolution, and this was kind of when we go back to talking about in the 70s and stuff about how the court system was trying to find ways

to clean up some of the document docket, keep cases moving forward. And so there's all kinds of different procedures. So you've got mediation, which is somebody like myself coming in and just basically going back and forth between the parties to help them negotiate.

There's also arbitration. And arbitration, I think the easiest way to explain it is a private judge, and so a lot of times there will be arbitration clauses in kind of agreements between companies, because companies think

the traditional litigation route is very cumbersome and very expensive. And arbitration as seen as a way for the parties to kind of retain control and do an abbreviated type of trial situation, more efficient streamline. You don't you don't have 12 jurors. Typically, what people would say with arbitration is you're probably less likely to hit a home run from either side. And so the way that works is that you handle the case basically the same way you would that we've discussed, and then there's an arbitration and what that would be is that we're in a conference room, I'm sitting at the head of the table, you're on one side of the table, the defendants are on the other side of the table, and you do an abbreviated trial. And when I say an abbreviated trial is that you may have experts that otherwise would come testify

in a trial setting, but in an arbitration setting, you may just have a report, and you may only pick, you know, a paragraph or two out of the report that you're wanting me to read. And you'll have a trial notebook. You'll have the medical records, there typically be a summary, and you may go through the high points of those medical records, there tends not to be a lot of corroborating witnesses. So your client may testify. There may be another person that may testify, you know, just to

reiterate some of the things that they're saying, or maybe they've seen things from a little bit different aspect, like a loved one around the house, some of the things that they're having to do for your client. Then the defendants go and they present their case, and they may have competing medical experts, or they may have, you know, whatever, witnesses, and some of it's presented, you know, whether it's affidavits or the same type of thing. And then there can be closing arguments, and there can also be kind of presentation of written closing arguments. Sometimes the parties will present me with case law that they want me to pay attention to and exhibits, and then we go back, and then I go back and make a decision. And that's a single panel arbitration, meaning I'm the only arbitrator

a lot of times, or more typically, what you will see is called a three panel arbitration, and the way that works is that you will pick an arbitrator, meaning the plaintiff, and you'll probably pick somebody that is typically more plaintiff oriented, and then the defendants will pick an arbitrator, and that arbitrator they pick will probably be more defense oriented, and then those two arbitrators will pick a third arbitrator, which is typically where I fall in, is they'll contact me, and I'm called a referee, and the three of us will hear the case. And so it's the same scenario I just went through of how the case is presented to us, and then we go back into a room, and we may sit there for, you know, several hours. Sometimes it can, you know, we may need to read some stuff and then re meet down the road. I've done arbitrations that lasted, you know, five, six weeks. I mean, they can, they can last longer than trials, depending on what kind of monetary relief and stuff is being sought. But anyway, the three of us sit down and we try to come to a unanimous verdict.

Does not have to be unanimous. We have issued from time to time, two to one decisions, but it is binding, meaning that once we issue it, it's just like with a jury, it's over with, it's over and done. It's binding. You can do non binding arbitration. It's usually not done too often, simply because what's the point of doing it? A couple other little things that I've been asked to do over the years is neutral evaluation. Is sometimes the parties,

for whatever reason, the attorneys may have an idea of what they think the value of the case is, but they can't quite close the deal. And maybe, like, you want to hire me as like, almost, it's almost like a second opinion is that you get the opposing attorney say, hey, let's get Sherman to do a Neutral Evaluation for us to give him what he typically sees this type of case settle for. Because maybe your client

thinks they should get more than than maybe you're recommending, that you're recommending, and maybe you're just like, hey, let's get, you know, a Neutral Evaluation, because, you know, a media.

Is not going to get you additional money, right? Sometimes the defendants want it. Sometimes they've got a client who's, you know, not willing to give them more money. And they may approach me and say, Hey, can you do a Neutral Evaluation for us? It would just help me to try to get that kind of last little step, to get the money done and stuff. So I've done some of those where the parties will tend to present evidence or the facts of the case to me and stuff. And I'll just, you know, write them back as typically, you know, my 30 years of experience, and my experience of mediating these type of cases and these elements and these factors, this is, and I usually give them a range. This is the range that I typically see that this case will resolve in. And I don't know what y'all have previously discussed, and then, you know, I've gotten feedback that that helped the parties get things resolved. Thank you for joining us, and we'll see you next time you.