Articles Posted in Trial Strategy

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

· The parties have non-lawsuit reasons to settle. There may be non-lawsuit related reasons to settle. The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan. The parties may also have an ongoing business relationship which would be costly to terminate. There are lots of business and personal reasons to settle, and if these are present they will motivate the parties to seek a negotiated result.

· While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff. A lawsuit is a three legged stool: liability, damages and collection. All three have to be present in order for the case to have value from the plaintiff’s perspective. If any of these three legs are missing, the plaintiff has problems and needs to assess what course is the best way to move forward. Indeed, a modest settlement may be in order in such a case. But if there is no clear barrier to the plaintiff and the stool has some strength in all three legs, then the parties should be talking seriously about resolving the lawsuit. There may be a disagreement over the numbers, but that is why mediation is attractive at a timely point in the litigation process – to save the time and expense of trial, and eliminate the risk of a disappointing result.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

The attorney/expert relationship is a tricky business in that experts are employed on behalf of one litigant–but are we members of the litigation “team?” One gratifying experience was working with a local attorney on a non-compete challenge to a proposed new business. Over several months, counsel and I separately compiled evidence. We met periodically to sift and consolidate our documentation. We analyzed possible opposition arguments. To prepare me for trial, counsel simply posed questions he might ask in direct, to hear how I would respond.

Unquestionably, being in the same city facilitated communication. Although counsel never attempted to influence my perspective, we worked first in parallel, then in convergence, and our interaction felt very much like a collaboration. Strictly speaking, it was not; although experts may become personally invested in cases, attorneys should work with us not as “team members,” but as independent, unbiased contract consultants.

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

· There has been cooperation among the parties and their counsel during the litigation process. This is key. No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another. They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not. They prepare their client for participation in the litigation process. For example, I try not to intervene at my client’s deposition. He or she is prepared to tell the story, and tell it truthfully. I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit. But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim.

The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a franchising expert witness:

Timing and Duration

Too frequently, attorneys seek expert consultation after substantially completing discovery–almost as an afterthought, as though attorney or client decide that a credible objective opinion might add weight to their arguments. Invariably, this results in the urgent need call: “We’ll overnight the discovery, but we need your feedback by next Friday latest.” It’s not unusual for the expert to accept the challenge, only to hear nothing more for months.

In Five Factors that Suggest a Case is Ripe for Mediation, bad faith expert witness Guy O. Kornblum writes:

Anyone who has been involved in the dispute-resolution mechanism knows it can be a laborious and often mysterious process. Somewhat over simplified, here is a good way to remove some of the labor and mystery, and describe how mediation fits into the system: Mediation allows the parties involved in the dispute to sidestep the litigation process, while also getting results. Because of the mediator’s neutrality, the settlement resolution is more likely to be perceived as just. It is a voluntary, non-binding forum in which the parties agree to conduct negotiations using a neutral intermediary who guides the parties through the legal process. The mediator has no decision-making authority. Rather, it is the mediator’s duty to work with the parties to agree on the terms for conflict resolution. Only if they want to do the parties settle.

So what types of cases are likely to settle at mediation? Here are five factors that, if present in the case, suggest it is one which should be mediated:

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

The potential exposure to punitive or exemplary damages is the greatest danger to an insurer defending an extra-contractual claim. For example, courts have allowed the recovery of punitive damages when the insurer’s breach is accompanied by an independent tort or where a serious wrong of a tortious nature has been committed and the public interest would be served by the deterrent effect of punitive damages.

GENERAL PRINCIPLES Insurance bad faith cases fall primarily into two categories: first-party and third-party cases. First-party cases evolve from coverage in which the insurance company is obligated to indemnify or reimburse its insured directly. Third-party cases involve underlying claims which trigger an insurer’s obligations to protect an insured against lawsuits by others. It involves the basic obligations of the insurer to defend and indemnify the insured, and to settle such cases when a reasonable opportunity to do so is presented. The right to coverage is triggered by strangers to the insurance relationship who bring a suit against the insured. It draws on traditional tort concepts of fault, proximate cause and duty. “In liability insurance, by ensuring personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.”

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

I’ve been handling bad faith insurance cases for almost my entire career. Initially the majority of cases encompassed the “duty to settle-excess liability cases” wherein the insurer became responsible for the entire amount of a judgment against its insured because the insurer acted imprudently or unreasonable by failing to accept a demand from a plaintiff for the policy limits or less. The basis for this liability was the implied covenant of good faith and fair dealing which exists in all contracts, but which has a special meaning in insurance policies. This covenant of good faith serves as the foundation for the expansion of insurers’ legal responsibility into the realm of tort liability stemming from its “bad-faith” conduct. If the insurer breaches the covenant of good faith by wrongfully handling an insurance claim under the applicable standard, a tort is committed.

In the early 70’s, the California Supreme Court applied these concepts to first party insurance relationships, i.e. where the insurer has promised to pay an insured for a covered loss. This type of coverage is found in all types of insurance relationships: commercial and personal property insurance, medical pay insurance, life, health and medical insurance, and other “direct reimbursement” insurance situations.

In Litigation screening panels on trial: Are they working?, Amy Lynn Sorrel, of AMNews writes:

A well-designed pretrial screening panel does a very effective job of not only getting claims settled faster, but a higher percentage of the system cost goes to the injured patient, and that’s an important piece of this. What you don’t want to do is create another bureaucratic step that doesn’t do anything but create another hoop you have to jump through and another cost you have to pay,” said Robert J. Walling, a partner with Pinnacle Actuarial Resources Inc.

The actuarial and consulting firm conducted a 2008 study of the issue for the American Medical Association, which views the panels as a promising alternative for states that cannot achieve more effective, traditional liability reforms such as noneconomic damage caps. The analysis found that states with screening panels generally had better overall medical liability insurance rates — 20% below the national average — and lower claims costs than states without such laws. States with stronger panel laws also showed a higher percentage of cases that closed without any payout and quicker settlement times.