Archive for the ‘Uncategorized’ Category

On Your Way to Mediation…Is Your File Ready? Is Your Client Ready?

Thursday, October 20th, 2011

By: Hon. Ralph Costello
New York Supreme Court Justice, Tenth Judicial District – Retired

If you have tried cases in Court or used Mediation, you are already aware of what you can expect.

If you haven’t yet, allow me to refer you back to a prior session you may have had during a court conference with a Judge or a Judicial Law Clerk. If you met with the Clerk, you were in the early stages of Discovery. At that point, a schedule would not have been devised. However, if you in fact met with the Judge, you were “marked” as ready for trial by jury, and the jury would be ready to be called to hear the case. At this point, you had all of your witnesses lined up and perhaps paid them for their time.

The overall focus would be on this case to the exclusion of all other matters. You are prepared to spend a few days or more in the courtroom. Hopefully, the verdict would justify your earlier expectations and the outcome of the trial. But of course, you knew what to expect…

Your prior experience afforded you the knowledge and risks you faced in dealing with this type of injury, this client, your witnesses, the facts pertinent to the case; and of course The Law.

In choosing Mediation however, the case would remain the same without the risk of jeopardizing the outcome on many levels.

The preparation of the case file would involve the same procedures as if you were preparing the file for a trial by jury. You would have spent time with your client gathering medical reports, photos of your client and the scene of the accident and/or property damage. You might have also obtained statements and investigative reports. “EBT” or Examination Before Trial may or may not have been taken.

You will not have paid your witnesses, nor, would you have to plan to be out of the office for an indeterminate amount of time for trial or, engage trial counsel.

By knowing exactly when the mediation will take place, you were able to review the case file in detail and at your leisure, ensuring your client a proper and realistic perspective as to the possible outcome of their case.

As a Supreme Court Justice for fourteen years and five years prior as a District Court Judge, I had the best seat in the house watching some of the best and top performers on the courtroom stage.

Believe me, there were more than enough seven-figure verdicts to keep anyone’s interest in what was taking place in the courtroom drama.

What really helped in the success of the negotiations was the time devoted to the case, and the attention paid to detail.

After you the attorney, has compiled a comprehensive file, you have to be fully prepared to defend your claim. You must be cognizant all of the details both good and bad.

Every well-prepared defense attorney will search out the variations and contradictions contained in the “record.” You and your client will have to justify the gaps of any medical treatment and the attending physician(s) will have to show the basis for their diagnosis and/or conclusion, that there is a change in the “ROM” or Range of Motion and/or atrophy in your client – their patient.

A medical record must show a persistent deviation in kind, or, “waxing or waning.” The following questions will require substantiation: Is there evidence that the condition has stabilized and if so, at what level? How will you demonstrate those facts?

Can you prove your client’s complaints as they pertain to the findings in the imaging report, and are they available during the course of negotiation?

Additionally, you will have to show how your client has had to change his or her daily routine as a result of the accident.  (If you are providing a “before and after” photo showing “pain and suffering” and “loss of enjoyment of life” remember, there is also the business side of their life, personal and social side).

Is your client a parent who has difficulty holding a child or playing touch football? What about driving a car, dancing or bowling? Are there more personal effects that perhaps need to be addressed?

By no means am I attempting at this time to “teach” you your business, but Life will be easier if you do your homework.

If you are the Defense, you will more than likely have addressed these questions or have been here before.

You will have taken a hard look at the plaintiffs’ case. With the support of your team in the claims process, you will have evaluated the case and have projected the possible outcome – coming into the mediation with a plan and goal to dispose of the case. You are aware of your authority and you have people backing you up; and within reach for consultation and advice.

Like the plaintiff, you will have reviewed the file to the point where you can substantiate each of your arguments with the facts as you see them.

The Neutral or Mediator will try to keep both sides on track in order to reach a settlement. Every effort will be made to encourage all parties to remain realistic and more than anything, flexible.

If the plaintiff or the defendant becomes inflexible, progress will cease. Both parties should come to the table with a desire and an expectation that they will reach an agreement.

If each side honestly evaluates each other’s position in the matter, with an effort to maintain an atmosphere of credible negotiation with the end goal being a mutually agreeable settlement, then both sides will then be able to claim success.

A note regarding the “Neutral” or “Mediator:” unlike a court setting where a judge or justice was familiar with most cases in the part, the Mediator will not have any information about your case. If you are lucky enough to have a Neutral with years of experience in the business, you will have someone who is a quick study and will be able to ascertain the facts and come up to speed without a problem.

Both parties may want to think about placing opening remarks together to present, prior to the session. The remarks can be oral or in written form. This “head’s up” so-to-speak will highlight each party’s case and will greatly enhance the quality of the session.

Remember, a good result is not a matter of luck; it’s the result of anticipation and preparation.

-We are saddened by the recent loss of our friend and colleague, Judge Ralph Costello. He was an accomplished mediator and extraordinary person. He will be missed greatly.