Three weeks ago, I was mediating an employment practices case for two very good lawyers. As the negotiations were coming to the critical make or break point, the counsel for Plaintiff justified his demand by stating, “Well, Jim has nothing now. He has gone as low as he ever thought he would. Since he has nothing to lose he might as well roll the dice.“
Two weeks ago, I was trying to settle a flood case. It was generally agreed amongst the attorneys that Plaintiffs were not going to be able to prove their case. During the negotiations, again I heard, “Since they have nothing and nothing to lose they might as well roll the dice.”
Then on Friday, I’m trying to settle an employment practices case and again I hear, “he’s living with his parents and has nothing to lose, so he might as well throw the dice.”
Was there a memo that I missed? Did the consumer attorneys have a convention theme of rolling the dice? Since when did rolling the dice become the best argument a plaintiff attorney can make. The answer is that it’s not. As a plaintiff’s counsel you owe your clients more than arguing he’s got nothing, you can’t recover from him, so you might as well pay him or he’ll make you spend a lot of money in trial. Most plaintiff’s attorneys are better than that. Be creative and put time into your case. Talk with your client, he or she may have some unique point of view or experience that you can use to increase your bargaining position. Find a nuance in a the case law that you can argue. Work with your experts to try new theories. Don’t be lazy. Threatening to roll the dice doesn’t motivate the defense to settle. It convinces the defense that they have correctly evaluated the case and it’s a winner. Your job as Plaintiff’s counsel is to create doubt of success in the mind of the defense. “He’ll roll the dice,” does not create doubt.
And Defense Counsel, don’t put up with it. I strongly recommend on cases that are strong for the defense, plead frivolous action in your answer. Send a letter early on indicating that you intend to seek attorney fees from the attorney for pursuing this case. If you represent a public entity, your answer should include a reference to CCP 1038. Send the meet and confer letter and don’t back down.
Be better lawyers. I’ve said it before and it will continue to be my mantra as mediator or counsel for a party; “Force the other side to make difficult decisions.” That is the key to successful results.
Robert
