33 Trial Lawyer • Fall 2023 See Lessons Learned p 34 not, consider using a different court reporter for your depositions. At the conclusion of the deposition, write a draft direct or cross-examination outline. Review the allegations in your complaint to determine whether you need to amend. Make sure your experts get copies of all the deposition transcripts to reduce the chance of them being embarrassed during cross-examination at trial when they admit that they did not receive all deposition transcripts, as this is a standard line of questioning used by most defense attorneys. This is an easy way to demonstrate that your experts’ opinions are based on complete information, even if the deposition is ultimately irrelevant to their opinions and conclusions. As we all know, optics are critically important in front of the jury. Mediation Do you bring up mediation or do you wait for defense counsel to bring up mediation? There are two schools of thought on this subject as well. The “old school” thought is you always wait for the defense to bring up mediation. We do not agree with this. Mediation has become so commonplace that we do not believe it is a sign of weakness if you raise the question first. The mediation conversation should take place months prior to your trial date. This will allow you to adequately prepare and, more importantly, will give the defense counsel enough time to write a report to the carrier and give the carrier enough time to have committee meetings and set authority. We generally ask defense counsel what else they need or what else we can provide to help them fully evaluate their exposure. Sometimes, it does not matter, and they simply will not make an offer, which makes your decision about whether to try the case easy! Over the past five years, we have been developing mediation websites. We provide hyperlinks to the key medical records, past and future medical expenses, and a copy of our life care plan with the expert identifiers redacted. This is also an opportunity to identify your best video clips for the depositions that can be incorporated into the website. The mediators commonly selected in these challenging cases have extensive experience and are not impressed with flowery mediation submissions. We provide copies of our experts’ CVs as well as memos of conversations with the experts. If you have a case with significant damages in which you are likely to see seven-figure offers, it may behoove you to engage a financial planner well in advance of the mediation so they can provide realistic financial information to your client during the mediation. Settlement offer analysis boils down to simple mathematics and a few assumptions. Our senior partner, Randy Pickett, has used this approach for decades and has taught us all the importance of going through this analysis. If you have done your research and determined verdict expectancy, you will be able to run numbers that accurately show your client what the net settlement amount will be compared to what the jury would need to award at trial to produce the same net recovery. This is a critical step during mediation that cannot be ignored or omitted. Consider using an Excel-based spreadsheet that you can print out for your client with each different scenario. In our case, there was never an offer to mediate or settle. Trial Mediation has failed and you are getting ready for trial. Start your preparations early. Once the trial begins, your ability to focus on anything other than what is happening in the courtroom will be impossible. Send letters to your experts well in advance of trial notifying them of the trial date and when you expect to slot them into the calendar to testify. Send these as soon as a trial date is set. If they are unable to appear in
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