Preface
Much like the iPhone was dubbed “disruptive technology” because it changed the thinking of an industry, and Michigan coach Jim Harbaugh is a “disruptive coach” given he takes “fired” coaches’ unsuccessful teams and immediately makes them successful, the Disruptive Lawyer embodies the right skills to disrupt – in a positive way – your expectations of legal results. In our book, The Disruptive Lawyer’s Little Black Book of Litigation Management*, we discuss a truth that is not always recognized: All lawyers are not created equal. All lawyers do not have the same skill set. To achieve effective litigation management, we need to begin by acknowledging this truth and then find lawyers with the appropriate skill set to accomplish performance goals as measured by your metrics. As we are in the “evidence” business, rather than telling you about great results, we’re sharing stories of real cases that demonstrate Disruptive Lawyer results. Here’s the first. We welcome your thoughts at disruptivelawyer@cmlawfirm.com.
Sometimes It’s About the Math
The Disruptive Lawyer was about to head home one evening when he got a call from a long-time insurance client. Hearing the voice on the phone, he expected that the client wanted to talk about a pending case in Georgia. However, the client stated that she needed some free advice on a very problematic case that the Disruptive Lawyer was not handling in a different state. The Disruptive Lawyer responded, “I’m all ears.”
The insurance client explained that she was handling a wrongful death lawsuit filed in Kentucky against the carrier’s insured. The main claim was that the insured’s product was defective in violation of the Federal Mining Safety and Health Act of 1977 (MSHA), causing the death of the plaintiff miner leaving a wife and two young children. The demand was for the $1,000,000 insurance limits. The client explained that the case had been in suit for several months and the carrier wanted to get it into mediation, given the dangers of the case and the bleeding of defense costs. The hope was to save some of the insurance limits, while also avoiding a six-figure defense cost.
The insurance client explained that defense counsel, who had done a very good job for years, could not convince the plaintiff’s attorney to mediate. In fact, the insurance company was so desperate to mediate, it hired a trial consultant to secure a mediation, but the consultant’s efforts were also unsuccessful.
The client asked the Disruptive Lawyer, “Although you are not barred in Kentucky, know nothing about Kentucky law or procedure, and know nothing about MSHA, do you think you could somehow help?” Less than confident, the Disruptive Lawyer responded, “Send me the file material and let me take a look. Let’s talk in 10 days.”
When the two spoke again 10 days later, the Disruptive Lawyer boldly stated, “Give me 45 days and I will have the case mediated and settled within your insurance policy limits and authority.” Surprised and frankly, disbelieving, the client gave the Disruptive Lawyer authority to proceed.
The Disruptive Lawyer’s next call was to the plaintiff’s lawyer and after exchanging pleasantries, the Disruptive Lawyer continued, “Counselor, I have read a lot about you and you are clearly an excellent lawyer with a long history of extraordinary results. Given your record and reputation, you do not strike me as the kind of person that would invest $100,000 in litigation costs and hundreds of hours of time to try a case a year from now on a dispute over a mere $50,000, especially when there is a real risk your client and her kids could get ZERO. How about we mediate and hopefully get your client a check ASAP?” After outlining the issues in a bit more detail, the plaintiff’s attorney agreed that a mediation was a good idea and it was scheduled for three weeks later. At the mediation, the case settled not only below policy limits, but below the “round tabled” authority authorized for the mediation.
How did the Disruptive Lawyer get it done? It had NOTHING to do with Kentucky law or procedure, or MSHA. Rather, it was about the MATH (and that’s not an acronym). Yes, the MATH. The Disruptive Lawyer reached five conclusions in reviewing the evidence and evaluating the case:
- Liability was somewhat questionable (he also developed a theory prior counsel had not discovered)
- The insured did not have deep pockets for any excess recovery over the $1,000,000 limits
- There was no bad faith exposure to the insurance company given underlying counsel’s evaluation
- The plaintiff was about to spend $100,000 proving liability; and
- The decedent was the primary earner for the family and left a wife and two young children.
Indeed, the plaintiff’s lawyer ultimately conceded all five points, which caused him to soften the $1,000,000 “home run” demand. At the mediation, the Disruptive Lawyer shared the MATH in detail, which got the case settled by demonstrating the parties really were fighting over $50,000.
Bottom line: If you were the plaintiff and plaintiff’s lawyer, would you settle immediately for $450,000 net to plaintiff, or roll the dice by investing $100,000 in expenses and 1000 hours in attorney time with a 70% chance of getting another $50,000 net at a trail one year from now (and a 30% chance of a ZERO, which would have been a tragedy for the widow and her two young children)?
| Plaintiff Verdict | Possible Settlement | |
| Gross Recovery | $1,000,000 | $750,000 |
| Attorney Fees (40%) | 400,000 | 300,000 |
| Expenses | 100,000 | 0 |
| Plaintiff Wife’s Net Recovery | 500,000 | 450,000 |
| Timing of Recovery | 18 months | Immediate |
| Risk | 30% chance of getting $0 | 100% chance of pay day |
Metrics
$150,000 in future defense costs savings and six-figure savings in indemnity
*If you haven’t read The Disruptive Lawyer’s Little Black Book of Litigation Management, contact us at disruptivelawyer@cmlawfirm.com and we will get a complimentary copy in the mail to you right away.