IS THE PENDULUM BEGINNING TO SWING THE OTHER WAY?

That’s a very interesting question.  As a claims professional, we started to see the “Florida” law firms come to California in the late 90’s and early in the new century.  Elder law was relatively new and the “Florida” firms opened shop and cleaned up.

As the years went by, the defense bar started to catch up and we started to see many defense verdicts.

Over the past twelve months, in California alone, there have been at least 5 eight-figure verdicts, one reaching nine-figures.  So that begs the question…Is the pendulum beginning to swing the other way?

As a neutral third party mediator, I do not have a specific answer for this question.  However, it does tell me there is risk out there, potentially HUGE risk for both sides.  If not acknowledged by both plaintiffs and defense, many more multi-million dollar plaintiffs’ verdicts will continue along with an increase in defense verdicts.

Unsettled law still surrounds the environment of elder abuse cases; these recent verdicts and the inevitable ensuing appeals could very well result in clarification of the law which undoubtedly will favor one side or the other.

The only piece of advice I would offer to plaintiffs and defendants is to take a hard look, possibly with a slightly different perspective, at your cases, and make the hard business decisions on when it really is the right time to suck it up and settle. 

As in all settlements, you’re going to pay more than you want or receive less than expected, but believe me, and believe the parties on both sides of all these multi-million dollar plaintiff’s awards and defense verdicts, it’s better to collect now and/or unload a liability than to be one of the parties on the end of a huge adverse verdict.

Why am I writing about this?  Our population is getting older and counsel on both sides is getting more sophisticated.  The time for chest beating and bravado is over.  Get your cases into mediation with mediators who have experience in elder care, from a judicial, legal and especially a claim perspective.

Elder law comprises nearly 50% of my mediation practice. (My remaining practice is well supported in the fields of medical, legal and broker/agent malpractice, healthcare, entertainment, coverage/bad faith, contracts, commercial, general, employment practices and product liability, personal injury, catastrophic injury and many other fields).  I’ve worked with some of the most talented attorneys (plaintiff and defense) and insurance companies and know how to settle these cases.  I have spent the past thirteen years working on elder law matters and know the many challenges these cases present.  Using my creativity and experience, I have, with much success, worked through those challenges with all the parties.

If the plumbing in your house goes, you don’t call an electrician.  When you have an elder abuse case you want to settle, you don’t call a mediator with little to no experience in the field.  You call one who has investigated, reviewed records and has settled scores of cases.  You call one who the insurance industry trusts and one who is respected by the plaintiff and defense bars…you call me.

From the plaintiff’s side, the shorter the time a file sits on a shelf, the faster the money gets into your and your client’s pockets.  From the defense side, the faster you eliminate an unwanted liability for your client, the more loyal they become and the likelihood increases that the one file will be replaced by two from that carrier.  And from the carrier side, the faster you know about the true exposure, earlier and more accurate reserves can be posted with the possibility of swiftly closing another file thereby reducing your pending and that continuing headache. 

This is the insight a mediator from the claims world brings to the mediation table…an understanding of all the stakeholder’s concerns, weaknesses and strengths.

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