OTLA Trial Lawyer Fall 2021

10 Trial Lawyer • Fall 2021 By Tim Grabe Y ou not only want to win for your client, you want to win big, right? And without busting the budget? Just as important are avoiding glitches in case preparation, witness selection, proce- dural and evidence rules, and profes- sionalism in your conduct at arbitration. Having participated as a plaintiff’s arbi- trator the last few years, I’ve found that a few lawyer mistakes can reduce the award by a lot, while a methodical ap- proach will enhance the award. Here’s a short list of things that can help or hurt a case in arbitration. Everybody’s style differs, yet those who work hard to have a plan and follow it generally do better than those who prepare at the last minute and hope for the best when they “wing it” without putting in the preparation drudgery that our clients deserve from us. Be prepared Some basics that show you are ready to roll include: (a) agreeing with defense counsel on a date materials should be submitted to the arbitrators and then complying with that date, (b) finding out whether the arbitrators want materials submitted electronically or as hard copy — typically a three-ring binder with tabbed sections — or both and then get- ting them your stuff on time, (c) giving a “heads up” to the arbitrators, before starting, on whether you have any evi- dence or witness issues that need to be resolved, and then have an organized list of such issues, rather than haphazardly pulling things out of the air. Seek a reasonable number I sat as the plaintiff’s arbitrator in a rear end collision case in which the plain- tiff had incurred around $7,500 in chi- ropractic bills after turning down an ambulance at the scene and having failed to see his primary care medical doctor for whiplash and back pain. No problem, right?The plaintiff should still be entitled to a fair amount of noneconomic dam- ages. Yet, the lawyer — with a straight face—asked for a million dollars because the wonderful plaintiff’s life was ruined by the collision. During deliberations, it was necessary for me to agree the case Tim Grabe value was under $30,000. Arbitrators know what cases are worth, and it’s best to argue for the high side of what is reasonable, rather than lose your credibility by arguing for too much. If I am the plaintiff’s arbitrator choice, then it’s easier to bring the swing arbitrator into the “fair” or “high” range if you don’t make a ridiculous pitch for a crazy-high amount. You don’t want the swing arbitrator to be turned off by your numbers, which can result in the swing arbitrator listening more closely to the defense arbitrator. If you have a six-figure case, then put on persuasive witnesses and go for six figures. A good approach for those who don’t know case values is to poll experi- enced trial attorneys and get a consensus or a range of values. Statistics on verdicts and awards for similar cases may be sus- pect, because they typically don’t include high-value cases that settle before trial or arbitration. Many statistical summaries are artificially low on noneconomic dam- age awards. Present something special Live or video doctor testimony is always welcome when there is a conten- tious issue. Computerized visuals of key evidence or legal points prepared by a trial technician can go a long way toward creating an understanding of important issues, because “seeing is believing.” All See On Target p 12 On Target DO’S AND DON’TS FOR BEST RESULTS