In Maximizing Damages in Small Personal Injury Cases, author Ellsworth T. Rundlett delivers guidelines, techniques, checklists, and forms to help you negotiate an injury settlement or litigate your smaller cases cost-effectively. Here are 8 negotiation techniques from the book that have proven successful with thousands of personal injury attorneys:
Negotiate from an agenda. If you have a face-to-face negotiation session, prepare a short agenda to go by. This will allow you to control the negotiation process. The agenda may include the following:
- Liability discussion.
- Confirmation of records and information that have been sent to the adjuster.
- Agreement on the amount of special damages.
- Discussion of pain and suffering.
- Client profile and defendant profile.
- Possible jury verdict range and probable jury verdict range.
- Potential jury appeal.
- Timetable for settlement and presentation of figures.
Never express anger, frustration, fear, or sorrow. If the adjuster makes an extremely lowball offer that is totally ridiculous, it may be very difficult not to express anger or sorrow. However, the exhibition of such emotions will never convince the carrier to offer more money.
Use questions as well as answers. Negotiating by questions can be as effective as negotiating by response. When the adjuster begins the conference by saying your demand is way out of line, there is no way his authority will even approach your demand, or that your client just was not injured as bad as you represented, use questions like the following as a response rather than engaging in an argument with the adjuster.
- Do you believe that my client’s medical bills are exaggerated, unreasonable, or unjustified?
- Do you believe that my client should receive no compensation for his pain, suffering, and mental anguish?
- Do you agree that my client has sustained an injury that resulted in pain and suffering?
- Are you aware of any weaknesses in my case that require reducing my demand by such a large amount?
Don’t bluff a lawsuit if you are not prepared to follow through. Constantly threatening suit will not prompt the adjuster to increase the settlement value. The time to threaten suit is when you have reached the point in negotiations that call for such a threat. That point is usually when you and the adjuster are separated in your values but not so far apart that settlement is out of the question. If the adjuster has not come even close to your bottom line, don’t threaten suit—file it.
Don’t threaten to “jump the ladder” by contacting the adjuster’s supervisor. Contacting an adjuster’s superiors seldom results in a better settlement. The claims manager or supervisor has probably given both the authority and support to the adjuster 99 times out of 100. In very few cases will the supervisor concede to your demands simply because you have jumped the chain of command.
Don’t play lawyer. Adjusters work with attorneys every day, both plaintiff and defense. They have some of the best trial attorneys in their camp for their defense. They are not impressed with belligerent, intelligent lawyers unless you are a lawyer who has won every single case for ten times what they are worth. Even the most successful plaintiff lawyers get turned down every day. Talking down to an adjuster will only make him stiffen up and resist your attempt at authority. When you negotiate, talk to, not at, the adjuster.
Don’t be afraid to walk away from the table. There are times when you have to hold your cards, fold your cards, or walk away from the table. If an offer has been made that does not meet the mark don’t hesitate to walk away with a suggestion that negotiations continue another day. Time often heals differences of opinion. Knowing when to say “no, not now” is better than saying “never.”
Accept a very reasonable offer even if you think you can squeeze more. There are times when an adjuster will offer close to maximum value on a case, the A or A+ value of your settlement range. Accepting a very reasonable offer, even knowing that you may be able to squeeze more, is appropriate in those cases. Remember, offer and acceptance equals contract. Turning down a reasonable offer could backfire.
Ellsworth T. Rundlett III is a personal injury trial lawyer with 30 years of experience. He has been certified as a civil trial specialist by the National Board of Trial Advocacy, and is a member of the Board of Trial Advocates. A frequent lecturer, Mr. Rundlett has spoken on the topics of “Achieving Optimal Recovery in Personal Injury Cases,” “Winning in Court,” and “Settling Cases.” His articles have appeared in TRIAL magazine and various state lawyer publications. He practices with Childs, Rundlett, Fifield, Shumway & Altshuler in Portland, Maine.