Using Settlement Counsel in the Non-Catastrophic Injury Case

By Edward Rebenack and Tyler Hall.

A while back, Pete Kestner discussed the use of settlement counsel. We thought to ourselves, “That’s a balleridea!” We recently had an opportunity to use that strategy and it helped us to deliver a great result that not only compensated our client for his injuries, but also punished the motor carrier for their truly abhorrent conduct.

There are likely many scenarios where the use of settlement counsel is appropriate depending on the facts of the case, the conduct of defense counsel and the insurance coverage. We want to share our experience using settlement counsel and why we think it worked so well in our case.

FACTS:

A school bus owned by a New Jersey company runs a red light and crashes into our client. Our client suffers cervical herniations and undergoes conservative therapy followed by three injections and a radiofrequency ablation. The client was also recommended for a future spine surgery. Based upon just these facts, the fair value of the case was probably not too much. The defense attorney on the case often repeated to us that he settles this case for $75,00099 times out of 100.

However, Ed Rebenack and Matt Bonanno of our office began to dig in and uncover facts about the bus company that were shocking. First, the bus driver was involved in six (6) accidents in the four (4) years prior to the crash. The bus driver also received a careless driving ticket just four (4) days prior to our crash. Second, two years prior to the crash, a compliance review conducted by the FMCSA uncovered a number of safety violations. Even with the post-investigation Safety Plan in place, the bus company did next to nothing to address these safety issues. Third, the insurance carrier for the bus company gave them a list of drivers whose driving records were so bad that those drivers were deemed too unsafe to drive – this included the operator of the bus that caused the subject crash. This was a game changer and led to additional punitive damages related discovery. It was also at this point that the defense attorney began to aggressively bring up the topic of settlement.

It was time to spice things up so we decided to split up trial and settlement counsel. Ed and Matt from our office continued to handle the case, kicking open every door and never taking no for an answer. At this point in the case, they were our junk yard dogs who would stop at nothing to get the discovery we wanted. Tyler Hall stepped in as settlement counsel. We sent a detailed letter explaining that our trial attorneys would never know the status of settlement negotiations. This placed Tyler Hall (as settlement counsel) in between the defense attorney who wanted to settle the case and our trial attorneys who marched forward without distraction.

Reason to use settlement counsel #1:

The rules of the game had to change once we discovered the bus company ignored and broke nearly every rule for hiring and employing safe drivers. It was not enough that we thought we had a bombshell piece of evidence. It is easy for defense attorneys and insurance companies to ignore what we say. Therefore, we decided to change the rules for the defense attorney to drive the point home. The bus company made decisions that put the motoring public and the school children at danger. As a result, we dictated how the defense attorney could communicate with us a result of his client’s conduct. Now, every time the defense attorney thought about settlement, he was reminded of the bus company’s conduct by having to go through settlement counsel rather than the attorneys he’d been dealing with all along.

Changing the rules of the game seemed like it put the defense counsel at odds with his own clients. His freedom of communication and ability to do his job was now curtailed as a result of his clients’ conduct.

Reason to use settlement counsel #2:

Someone needed to play “bad cop”. While we are always cognizant of the important burden we have to fight for our clients, we try not to take ourselves too seriously. We always enjoy getting along with our adversaries when possible. In this case, Ed and Matt had a great relationship with the two defense attorneys handling the file. The defense attorneys were professional and had a good sense of humor. We worked well with them and got along.  During discovery, this worked to our advantage because they underestimated Ed and Matt while they uncovered devastating evidence. But when it came to settlement, we needed someone who did not mind dropping the hammer.

Introducing settlement counsel who did not already have a rapport with the defense attorneys put them on the defensive. Settlement counsel could be blunt and terse during settlement discussions and appear almost indifferent to the defense counsel’s plight. This also sent the message to the defense attorney and insurance carrier that our settlement position was final – we were not negotiating.

Reason to use settlement counsel #3:

It kept our trial attorneys focused on the case. Pete Kestner discussed this benefit and it was also true in our case. Dangling the possibility of settlement is one of the best ways a defense attorney can slow down our momentum. Removing the possibility of settlement refocused our trial attorneys. They know they had a mandate to push the case forward as aggressively as possible.

Reason to use settlement counsel #4:

Adding a new variable contributed to the defense counsel’s desire to settle the case at all costs. The reserve and settlement offers are set based upon the experience of the defense attorney and adjuster. Adding a new variable that they have never encountered makes all of their experience worthless.

Using settlement counsel frustrated the efforts of the defense attorneys and put them in an unfamiliar position. They now had to fight on two fronts. On one side trial counsel was putting the screws to them and on the other side was the aloof settlement counsel who seemed uninterested in settlement. In fact, during the first conversation with the defense attorney, Tyler told the defense attorneys that he “hoped the case would not settle” and that “his job was to keep saying no.”

Getting the defense attorney out of his comfort zone contributed greatly to the settlement. There were too many unknowns for him to account for. His biggest fear was that he would blow an opportunity to settle the case resulting in a huge verdict, which is what we were preparing to do. By the end of settlement discussions, it was clear that he was elated to have settled the case and to have not lost the account.

As we said, we had the perfect liability storm and it made sense for us to separate trial and settlement counsel. Using creative strategies like this is a great tool to change the rules of the game and to keep your adversary on their heels. For us, this strategy allowed us to tell the defense attorney and the insurance company what the case was going to settle for and to not stop until we got it.

Ed Rebenack and Tyler Hall are Certified Civil Trial Attorneys as specified by the Supreme Court of New Jersey. With years of experience handling trucking lawsuits, RAM Law has the expertise to handle these challenging lawsuits. Our team is happy to provide a free case review at one of our offices, conveniently located in New Brunswick, Somerville, and Freehold. Call us now at 732-394-1549, ,chat with us now, or fill out our online contact form to schedule a free consultation.