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Developing Leverage

Updated: Jul 21, 2023

In any negotiation, you have little hope of accomplishing your objectives without leverage. Small talk is nice and might incline your adversary to discuss the case a little more, but it isn't leverage. Touting your experience and talking shop might make you feel like you're "in the club", but it isn't leverage.

Leverage is your ability to take away things your adversary wants and needs or give them things they really want that they don't necessarily have. In personal injury negotiations, most of the leverage you have is "negative". It takes away things the plaintiff wants.

Leverage doesn't drop out of the case. It has to be developed. It requires methodical analysis of records to build evidence that address claims about pain and suffering, treatment and wage loss. It does this individually. It doesn't try to roll them all up together.

Fortunately for you, the legal system is set up to require the plaintiff to state their claims and then prove them by way of evidence. Unfortunately for you, a pervasive sentiment exists within claims organizations and the defense community that simply presenting medical records implies claims that are presumptively correct until definitively proven otherwise. This sentiment destroys leverage.

Let's identify approaches to resolution that ruin or dilute leverage and how to replace them with approaches that create leverage.

Assuming the burden of proof by critiquing the plaintiff's case before ever asking for proof of their claims.

Never assume the burden of proof. The plaintiff is making claims for pain and suffering, medical bills and wage loss, not your insured. Let them defend their claims. When your approach to negotiation is to take the lead by laying out the case and putting a value on it, you just assumed the burden of proof. Now you're playing defense.

Request clarification and definition of claims before considering an offer. Otherwise, you are making an offer based on assumptions and characterizations (see below). Try asking some straightforward questions. "What is your client claiming the impact of this injury was on them? How are they saying it affected them?" "We see that there is no medical information proving the treatment is working. What medical findings is the provider going to rely on?"

Don't let the plaintiff attorney turn this into an attack on you. We frequently hear the response is that they aren't going to "do your job for you." That type of response isn't an indictment of you. It is an indication they don't know how to answer. Think of it this way - if you have to ask, they haven't been clear. Press on with the question. Don't expect them to answer. Expect them to think about it.

Negotiating a case by characterizing it.

Characterizing means describing the case in a way that is supposed to cast it in a specific light. "We see your client has 8 weeks of chiro and an MRI with a herniated disc. They went to pain management who recommended an injection, but they never got it. This looks like a built-up claim." This is just another way of "talking shop". This approach uses implication and innuendo. It's doesn't portray you as someone who really "knows the ropes".

Implications and innuendo lack strength because they lack evidence. When you summarize the case as a way of attempting to classify its value, you almost always legitimize unnecessary treatment and bogus claims about pain and suffering. Not because you specifically agree with them, but because you allow the "burden of proof" standard to be dropped and "attributes" of the claim like the amount of treatment and MRI reports to be the guideposts for value.

Avoid this approach by clarifying the claims being made. Don't assume anything. Ask questions like this: "We think your client is indicating the injury affected their ability to do" Once you know that, you know what the evidence has to prove. Casentric claims-based analysis details how medical evidence stacks up. Don't avoid the details. Use them.

Dealing in absolutes.

This means throwing out arguments because you anticipate a rebuttal, as though an argument is only worth making when you leave your adversary speechless. Don't look for the smoking gun. You will rarely find one.

Absolute thinking looks like this....if I say X, they are just going to say Y. This leads to the conclusion that saying X probably isn't worthwhile. However, saying Y does not eliminate X. The question is how strong X is versus Y.

For example, if you indicate that claimant appears to have had only minor injuries (at worst) because they continued to work and there was no instruction to modify their activity, you anticipate that the claimant will respond by saying they had to work while in pain or that they had to limit their activities. This doesn't mean your argument doesn't work.

Knowing this will be the response, how do you develop the evidence to demonstrate that the claimant's assertions are weak. You do it by illustrating they are speaking alone and their medical providers (who should have the most credible evidence for their claim) can't back them up? Casentric finds that there is nearly always a significant lack of evidence for the plaintiff on these are other basic claims they are making.

When you discount or eliminate your arguments every time you think your adversary will have a rebuttal, you concede leverage.

Isolating arguments rather than linking them.

Your job and defense counsel's job is to create a position that is stronger, more credible that your adversary. This isn't done by bouncing around "issues", It is done by outlining what the plaintiff's claims are and developing the evidence that validates or invalidates those claims. Because it is a personal injury claim, this should always start with the injury itself and should not leapfrog this most basic component of the case by discussing medical treatment.

Instead of talking about "issues", start with a claim. Link together observations from evidence that collectively strengthen your position about each claim. In the example above, pointing out that a person isn't that hurt when they continue to work is a first step. Adding to this that their medical providers don't see a need to restrict their activity is a second step. After all, if they had a significant condition with significant risk of reinjury, the providers would step in. Keep going. In most cases, this is far from the whole picture that can be developed. The most basic medical findings about functional ability are typically missing from medical provider reports.

This isn't nitpicking. This is central to the provider's assessment of the patient and their ability to confirm claims about the severity of the injury. It's not just that the claimant is able to do all the things they did before, it's that they have no expert evidence to support any claims of impairment. When a provider has to concede they failed to note the most basic medical evidence of impairment, why would you accept anything more than a minor injury? Just because they treated a lot?

There are more ways to gain leverage which will be covered in other blogs. These are cited to address common misconceptions and mistakes. It is vitally important to understand your primary goal with leverage. Leverage doesn't win you the case. It levels the playing field.

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