UNLIKE LAWYERS FOR insured defendants, plaintiff lawyers must guide their clients through the strange and forbidding world of litigation, a world in which the lawyers and adjusters are experienced citizens. This is true even for the most sophisticated and educated clients, since for most plaintiffs this will be their first and only such experience. It may be that the strangest corner of this world is the mediation session; nowhere else in our society can you find such bargaining gamesmanship. Perhaps only in Third World markets will one see such inflated demands and such penurious offers. It¹s enough to thoroughly confuse, if not anger, any civilian. Plaintiffs have set out in search of the halls of justice, but soon feel as though they have landed in a high-stakes poker game.

Before entering this bewildering world, most plaintiffs are in need of a few tips, the kind of information purveyed by Hoyle’s Rules of Games, or by older, more experienced players. These tips must be conveyed before, during, and after the mediation session, if mediation is to succeed and plaintiffs are to leave reasonably satisfied. What follows are seven tips which will serve to steady plaintiffs’ nerves when the cards are on the table and the bets go down.

TIP #1: LITIGATION IS ONE BIG GAMBLE. For plaintiffs, there are two rea sons why this is so. First, plaintiffs (and defendants as well) must reckon with the fact that there are 12 wild cards in the deck. Nobody knows what these wild cards – the jurors – might do. Betting on jurors is more sensible than betting on filling an inside straight, but only a little. Every experienced trial lawyer has been surprised – happily and unhappily – by what jurors have decided. Plaintiffs, lacking that experience, tend to believe their causes are just and justice will prevail. That doesn’t always happen. Second, plaintiffs face the unique gamble of bearing the burden of proof at trial. Defendants must prove nothing, which sometimes can be a huge advantage. In trials, unlike in blackjack, ties go to the house.

If plaintiffs are going to understand that all trials involve significant gambles, their counsel have to start telling them early and often. They must understand that the level of uncertainty in this endeavor is quite remarkable, and this is why most cases should be settled. In order to settle successfully, it is helpful for plaintiffs to understand who their opponent is – that:

TIP #2: THE INSURANCE COMPANY IS THE HOUSE. Insurance is the world’s largest form of legalized gambling. Like the people who own casinos, insurers are in a cold, hard business. Yes, it is possible to be a kinder, gentler insurance company - until the bankruptcy filing. So plaintiffs who are cutting cards with the insurer need to understand that the company is simply running a business. To plaintiffs it is all very personal; to the company it is simply a matter of purchasing a commodity. That commodity is the plaintiff’s signature on a release. The value of that release is nothing more or less than the case’s market value, as the insurance company perceives it at the end of the day. Plaintiffs will be better off in mediation if they understand how the company values any case, that:

TIP #3: THE HOUSE ALWAYS PLAYS THE ODDS. Most insurance companies calculate market value through some version of a simple, logical, three-step process, which plaintiffs benefit greatly by understanding:

1. The company predicts the most likely jury verdict, in the same manner that a real estate agent or bank appraises a house for sale or refinance, by "comps." The realtor asks: what are comparable houses, with the same special features, in the same neighborhood, selling for now? The claims adjuster asks: what are juries in this jurisdiction awarding for similar injuries, these days? From the company’s point of view, the personal qualities of any given plaintiff can affect the likely jury verdict, but are almost never crucial. The real answer is derived from the comps.
2. Once the comp is established, the second step is estimating the odds of success - whether the plaintiff has an 80 or 50 or 30 percent chance of winning. This actually is just another kind of comp, based on the company’s experience and knowledge of who won and who lost other, similar cases.
3. The final step is to do the math: $100,000 average verdict times 50 per cent chance of success equals $50,000 settlement value. Plaintiffs need to understand that this is how the adjuster decides what a case is worth, or considers to be its market value. Without understanding that approach to settlement value, plaintiffs will never think they are being given a fair offer and will never settle, because they won’t understand that:

TIP #4: THE DECK IS STACKED. Plain tiffs often come in believing that they can and should be fully compensated for their losses. This belief is only reinforced by the instruction judges give to juries that, "The plaintiff is entitled to be fully compensated for the harm resulting from the defendant’s legal fault." The problem is: this is not possible. Why? Because the value of an injury to any sensible person is almost always going to far exceed what the defendant can ever afford to pay, or what juries will ever award. Sadly enough, the worse the injury, the more this is true; how many of us would take even millions of dollars to be rendered quadriplegic? The answer is obvious, but plaintiffs often forget it and need to be reminded. Life is not fair, and settlements in personal injury cases do not make it so. Life is also not fair because:

TIP #5: ONLY THE HOUSE DOESN’T MIND LOSING. In the casino business, big jackpots are not a problem; they are part of the marketing plan. By the same token, insurance companies won’t sell any policies unless some people collect on them, and the McDonald’s coffee case was the best thing to happen to the insurance industry in 30 years. That famous verdict has turned off so many juries that it has saved the carriers billions. Like the fox chasing the rabbit, the industry can afford to lose a race or two. Rabbits and plaintiffs only get to lose once.

That is their advantage as well; they are better motivated and try harder. Plaintiffs need to know that their lawyers will play the hand for all it is worth – but they also must remember that both sides are not running the same risks. Sometimes the plaintiff lawyer can raise the stakes for the carrier by whispering those magic words, "Excess verdict," but the odds seldom really even out. The house is still the house and it plays a cold, hard game in which:

TIP #6: THE GAMBLER’S FEELINGS DON’T MATTER – to the house. So far as the insurance company is concerned, a plaintiff’s feelings about his or her case are no more relevant than the home seller’s sentimental feelings about his ancestral home are relevant to the home buyer or the bank. The reverse is true for plaintiff lawyers. Every case is about the client’s life, and the client often comes to mediation with very strong feelings about what has happened and why. Those feelings frequently will need to be acknowledged in the mediation session, or no settlement will occur. Plaintiff lawyers will consider, on a case-by-case basis, how much these feelings matter, how they need to be expressed, and who needs to hear them. At the same time, lawyers have to bring their clients back to the reality that those feelings, while important to them, will not influence the carrier’s view of settlement value. Conveying to plaintiffs the difference between their feelings and the reasonable settlement value of their case can be a difficult juggling act, but plaintiffs must:

TIP #7: KNOW WHEN TO HOLD ‘EM, KNOW WHEN TO FOLD ‘EM. Unlike their defense counterparts, plaintiff lawyers usually represent any given client just once - and those clients are often suspicious of everything from their lawyers’ cordial relationship with their adversaries to the game-like bargaining of the mediation session. Therefore, it often is a delicate task for lawyers to deliver hard news to their clients - no matter whether the advice is to take the deal or to refuse it. Sometimes plaintiff lawyers will deliver this kind of advice alone. Other times, particularly when the advice is to "fold ‘em," they may need some help from the mediator; they will need "client control" help with plaintiffs far more often than defense lawyers will need it with their adjusters. In the end, there are times when nobody can budge a stubborn plaintiff. Sometimes the client who refuses to fold for "what the case is worth" turns out to be right - and reaps the benefit of a surprisingly big verdict, or a bigger offer later on. Often, however, the chance wasn’t worth taking. Conveying to plaintiffs the true nature of that gamble can be the biggest challenge facing their lawyers, but somewhere, every day, some plaintiff lawyer will be having that conversation - better a grumpy client after a mediation than a miserable client after the jury’s verdict.

In the end it is the plaintiff lawyer, far more than his or her defense counterpart, who bears the job description: "gambler." For the gambler the risks are high - and the rewards can be great. How will it all come out? "There’ll be time enough for countin’ when the dealin’s done."

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