You have followed all of the first five steps and negotiations seem to have failed. You have written a letter regarding the severity of the injuries to the defense adjuster long before treatment was completed. Once the plaintiff reached maximum medical improvement, you wrote a demand letter to the adjuster and submitted it along with supporting documentation. You obtained the first offer from the adjuster along with the adjuster’s anticipated defenses. You decided upon a reasonable settlement value. You tested the adjusters’ resolve by asking for a better offer. You made counter offers utilizing the bracketing technique, and decreased your demand to the same extent that the adjuster increased his offer. The adjuster stopped increasing his offers and told you at least three times that his last offer was a final offer. Yet the adjuster still hasn’t offered to pay what you and your client decided to be a reasonable settlement offer.
Your choices appear to be twofold: you can either settle the case for less than you think it’s worth, or you can file a lawsuit and take the defendant to court. At this point, it is important that you don’t settle the case. I never settle a case for less than I think it’s worth unless my client instructs. And I never file a lawsuit until I’m convinced there is no way to convince the adjuster to pay what the case is worth. When negotiations appear to have reached an impasse, I do the following:
1. I obtain additional documentation to support the claim and ask the adjuster for a better offer. This additional documentation might come in the form of medical opinions, before/after witness statements (witnesses who can testify abouty my client’s injuries after the accident as compared to his or her physical condition before the accident), additional documentation to solidify the lost wages claim, additional documentation to support the mileage claim, additional documentation regarding the cost of future medical treatment, etc.. If this elicits a better offer, I then reinstate the bracketing procedure until we settle the case or reach another impasse. At this point, I like to start negotiating with the adjuster via fax or e-mail as opposed to over the phone. The adjustser has already told me that she will not pay a penny more on the case. By submitting the additional documentation along with a letter, it makes it easier for the adjuster to answer in writing, saving herself the embarrassment of acknowledging over the phone that her previous threat of a “final offer” was actually a bluff. It’s good to send this additional documentation little by little as opposed to all at once, because each time you send additional documentation you may receive an increased offer, and you can reinitiate the bracketing procedure.
2. I do jury verdict research and submit it to the adjuster. Westlaw has a jury verdict research function that allows me to look through cases which have previously been decided by a jury to find a case comparable to the one I am negotiating. If I can find some cases similar to the one I am negotiating but with verdicts higher than the defendant’s last offer, I submit them to the defendant’s adjuster and ask for a better offer. If this elicits a better offer, I reinitiate the bracketing procedure until the case settles or we reach another impasse.
3. If neither additional documentation nor jury verdict research get the case settled, I then prepare a complaint and discovery and send it to the defendant’s insurance adjuster, asking once again for a better offer and explaining that I will file the complaint and discovery if a better offer is not forthcoming. I indicate that my client is willing to continue negotiations if the defendant will increase the offer. If this elicits a better offer, I then reinitiate the bracketing procedure until the case settles.
4. If the case doesn’t settle, I file a lawsuit and prepare for trial. It’s important to be willing to walk away from a settlement if you don’t think it’s fair. Once I file a lawsuit, I send a letter to the adjuster saying that negotiations have failed, all settlement offers are off the table, and the cost of settling the case will increase with the amount of money I put into it.