By Guy Kornblum
I have a passion for dispute resolution. It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 1990’s. He was a master negotiator, but at the same time a supreme diplomat. His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they would walk away thinking they had just received the Congressional Medal of Honor.
I spent many years as a traditional “defense” lawyer in the civil litigation arena trying some of the early Insurance “bad faith” cases. I tried the first two first-party bad faith cases to go to verdict in California (before Egan was tried in November 1974). At the time, plaintiff’s lawyers made sure that juries could hear about the financial worth of a case right up front. That all changed in 1988 with legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitive damages were even warranted.
Now as a (primarily) plaintiff’s lawyer, I hope I have a keen sense of “worth,” that is, what is the value of the case, and how much is it going to cost to get there? It is critical to do this kind of case valuation from day one, as not all cases are “bell ringers” with high 6 or 7 figure potential – real, meaningful, potential.
I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation, and even mediation of disputes. There are many reasons why. A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client. Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?” They are not enthusiastic about going through trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.
So, key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires. It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands. An early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy I saw my Dad use to get a “just” result.
Guy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He heads up the law firm of Kornblum, Cochran, Ericson, & Harbison, LLP, with offices in San Francisco and Santa Rosa. He is author of “Negotiating and Settling Tort Cases: Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017). https://legal.thomsonreuters.com.au/negotiating-and-settling-tort-%20cases-reaching-the-settlement/productdetail/122111