We talk a lot about being disruptive. It’s kind of our thing. And over the years, we’ve shared dozens of Disruptive Lawyer results. And while the Disruptive Lawyer mindset and skill set may come naturally for some, we are committed to developing that mindset and honing that skill set both in our own attorneys and the clients we serve.
In addition to training through webinars and workshops and real-life experience, we regularly challenge our attorneys to think disruptively. Here’s an exercise we shared recently in a firm wide email to our lawyers.
EXERCISE
Facts:
- Defendant driver rents a car from Rental Company.
- She has auto insurance and adds Rental Company insurance.
- Her personal insurance is $25,000 and Rental Company insurance is $1,000,000, for total of $1,025,000.
- Defendant driver rear-ends Plaintiff’s vehicle. The crash is 100% her fault.
- Plaintiff sues Defendant driver for negligence and Rental Company claiming negligent entrustment.
Liability Assessment:
- Clear against Defendant driver
- Zero against Rental Company (accept this as true)
Note: Under Georgia law, a defendant can make an Offer of Settlement and, generally, if it is above the end result, they get their attorney’s fees.
Settlement value is $200,000. (accept this as true)
Available Insurance is $1,025,000 for one and/or both defendants.
You represent the Rental Company. You want to get out of the case before you have to go through discovery and file your winning MSJ, which will be $30,000 in fees. You call the Plaintiff’s lawyer upon receipt of the case.
What are your top three hard leverage points, and what are the softer arguments to get out the case?
ANSWER
As Disruptive Lawyers, our goal is to provide the most efficient and economical result on behalf of our client.
Specifically, in this hypothetical the objective is to get the Rental Company out of the case before discovery and the filing of a winning MSJ. In effect, billing closer to $5,000 to get the case dismissed instead of $30,000 to litigate the file.
What are the hard leverage points and what are the softer arguments to get out of the case?
This requires realizing two facts:
- There is no liability against the Rental Company.
The claim against the Rental Company is for negligent entrustment which falls outside the scope of the statutory prohibition. The Graves Amendment bars liability based solely on ownership or the act of renting the vehicle, but it does not eliminate claims based on the Rental Company’s own alleged negligence. - The driver was covered under her own policy and the rental insurance for a total of $1,025,000. There are ample limits to satisfy the settlement value of $200,000.
With these facts in hand a telephone call to plaintiff’s counsel requesting a dismissal.
Hard Leverage Points
- There is no liability against the Rental Company.
- If plaintiff does not dismiss the case, you will file an offer of judgment for $1.
- You will then litigate the case, amassing $30K in legal fees which his client will be required to pay when you prevail on summary judgment.
Softer Arguments
- Plaintiff does not need the Rental Company in the case.
- The driver who is 100% liable has ample limits to settle the $200K claim.
Keeping the Rental Company in the case does not increase the recovery but increases litigation cost and risk.
Perhaps how the CALL to plaintiff’s counsel plays out:
“Hey, I represent the Rental Company. And unless I’m missing something, we don’t see any liability here against the Rental Company. What do you have to suggest negligent entrustment? The good news is you don’t need us in the case. The co-defendant has $1,025,000 of coverage. And so, I would request that you dismiss my client.”
If there is pushback: “Well if you don’t dismiss us, I will have no choice but to do an offer of settlement for a dollar and then when I win MSJ, we will seek to recover our fees of $30,000, which will be recoverable from any settlement you get from the co-defendant. Bottom line, you lose nothing by dismissing us but will lose a lot by not doing so.”
For more on developing the mindset and skill set to resolve cases efficiently and economically, check out our upcoming webinars.