MEDIATING THE “BAD” CASE – TRIAL COUNSEL PERSPECTIVE
J. Richard Caldwell, Jr.
Rumberger, Kirk and Caldwell, P.A.
100 N. Tampa St., Ste. 2000
Tampa, FL 33602
Everyone has had one – or more: the nightmare case, or the “case from hell.” Liability seems
problematic, damages approach the catastrophic range, and plaintiff’s counsel is difficult to
deal with. After being bombarded with discovery requests, incurring adverse orders, and
suffering through client employee depositions which seemed scripted for plaintiff, mediation
is now on the horizon.
How can trial counsel best contribute to a resolution of this type of case at mediation? At first
glance, the answer might seem easy: just advise the client to open up the corporate coffers
and shovel money at the case until it goes away. However, this simplistic solution is seldom
satisfactory, as a matter of settlement strategy or life in general.
This paper addresses four ways in which trial counsel can make a maximum contribution
towards a successful mediation: (1) knowledge of the case; (2) close communication with in-
house counsel or client representative; (3) recommendations on mediation strategy; and (4)
selection of appropriate tactics for use at the mediation conference.
I. Case Knowledge
It seems almost trite to suggest that the trial counsel must have a detailed knowledge of the
case, from discovery responses to deposition testimony to an intimate understanding of the
client’s product, procedure or employee conduct which allegedly caused the injury. However,
far too often senior trial counsel leave the detailed work-up of the case to junior lawyers, and
essentially abdicate their responsibility with respect to the case to these younger attorneys.
It is, of course, perfectly appropriate for senior trial counsel to enlist help on cases from
associates and junior partners. Otherwise, the practice of law would quickly become
overwhelming to the senior counsel, and younger lawyers would get precious little
Trial counsel must never forget, however, that the case has been assigned to him or her, not
the junior people. The client is relying on that lawyer for advice, and on his or her experience
to get them out of this tough spot. To fulfill this responsibility, trial counsel must gain global
knowledge of all aspects of the case.
Not just for purposes of mediation, but to handle the case successfully in general, it is
absolutely essential to have a firm and detailed understanding of the client’s operation which
is involved in the case. If product liability litigation is involved, every significant detail of the
design and manufacture of the product must be mastered. In a construction accident case,
every aspect of the project, the client’s role in it, and all of the instrumentalities involved in
the incident must be matters of personal knowledge. In medical malpractice cases, counsel
must learn the medicine thoroughly.
Not only case facts, but intangible factors must be known quantities. The characteristics of
the jurisdiction (especially if the case is away from counsel’s home base), jury demographics,
judicial predelictions, personality and method of practice of opposing counsel, all have got to
become part of trial counsel’s intellectual data base.1
This case knowledge, together with the totality of counsel’s experience, forms the basis of
whatever recommendations are to be given to the client concerning the upcoming mediation.
Trial counsel is the man on the spot, in more ways than one. He or she is the primary source
of information which the client will rely on to make settlement decisions about the case.
What are plaintiff’s counsel’s likely tactics? How will a local jury receive evidence of this or
that? What is the judge apt to do with respect to crucial evidentiary issues? What is the
current state of law in the jurisdiction on specific subjects? All of this information can come
from one source only.
Just having all of the knowledge referenced above is of course only part of the task. It must
be communicated to the client. Most companies have a system of pre-mediation reporting
which they require of trial counsel, which may be more or less structured in format.
When dealing with the truly bad case, equally as important as communicating the objective
facts and subjective impressions, is reaching a profound level of understanding with the in-
house counsel, risk manager or claims manager who has case responsibility for the client.
Just as in-house lawyers or claims personnel rely on trial counsel for case specific
knowledge, trial counsel needs to make sure that he or she has a good understanding of
factors within the company which may have an influence on case resolution.
If at all possible, trial counsel and in-house counsel or representative should try to arrive at
some consensus as to what should be done to resolve the case. Sometimes this simply won’t
occur – there may be a significant difference of opinion on what the case value is. If this
occurs, trial counsel must remember that it is, after all, the client’s money, and all that can be
done is to ensure that in-house counsel has the benefit of all of the facts together with trial
counsel’s reasoning as to settlement value.
Sometimes there may be significant differences of opinion among the company decision-
makers themselves. Trial and in-house counsel need to make sure that they are working
together to address these variances in approach, so that a meaningful decision can be made
on the settlement position in advance of the mediation. Perhaps there are arguments which
1. In cases which are venued away from trial counsel’s home jurisdiction, close coordination with local counsel
is essential in obtaining these insights.
may appeal to one individual or group, or particular methods of illustrating the degree of risk
in the case. Whatever may be the dichotomy or the method of resolving it, a close
understanding between outside and in-house counsel is essential in presenting the case for
III. Mediation Strategy
Every mediation involves a balancing act: how much of the case does one reveal to the other
side, in order to impress them with the strength of the case, and opposed to how much to
withhold, in order not to give everything away in the event the mediation is unsuccessful and
the case proceeds to trial. If the chances of settlement at or as a result of mediation appear to
be few , then often the balance will be struck in favor of revealing relatively little of the
case’s real strong points, saving the real winning items for trial. On the other hand, in the
“bad” case, almost by definition, the client is anxious to settle the matter and the balance tips
the other way, towards trying to impress plaintiffs with whatever strengths the case may
have, and attempting to elicit a demand the client can live with.
Unfortunately, in the truly “bad” case, the two extremes are often intertwined, with
settlement demands far in excess of what might obtain under a reasonable assessment of
liability and damages. This situation challenges trial counsel to exert all of the skills and
wisdom which he or she has accumulated. In plain language, that’s what we get paid the big
Presented with such a case, the trial lawyer’s strategic counsel begins with the
communication of the lawyer’s best and most honest evaluation, based upon his or her
understanding of the case . This again sounds almost trite, but it is very easy to (perhaps
even subconsciously) shy away from telling the client what it doesn’t want to hear, to wit:
that it will take substantially more money to settle the case than the client really wants to pay.
In reaching such an evaluation, trial counsel must ensure that vulnerabilities in the case are
not glossed over. Conversely, even a burning conviction that the case must be settled should
not result in an unduly defeatist recommendation.
This is a key point where the necessity of close communication and coordination with in-
house counsel is essential. The in-house counsel has the knowledge of the personalities of the
decision-making team or individual, but often needs to rely on trial counsel to marshal facts
and arguments with which to present management in favor of an unpalatable, but necessary
settlement allocation. This task can become particularly difficult in the case of a self-insured
client where any money comes directly from the company funds, and even more difficult if
one or more of the management team feels personally affronted by the lawsuit.
The strategic issues of how much to pay in settlement, and how to go about presenting the
best case possible at mediation, can constitute some of the most challenging, yet most
important, tasks of a trial lawyer.
IV. Mediation Tactics
There are probably as many techniques for conducting a difficult mediation as there are trial
lawyers. However, a few tactics seem to surface in discussions of successful mediations over
and over again, and are described briefly below.
First, the choice of a mediator can be crucial in these circumstances. There is no portrait of a
perfect mediator for every case, but particular attention should be paid by trial counsel to
choosing the mediator who will effectuate the settlement, or fail to do so. It is often helpful to
consult one’s colleagues in this regard, unless the “ideal” mediator suggests himself
Further, trial counsel should remember that, on the other side of the table are real people,
typically people who have sustained a significant loss, either of a loved one, their own health
and well-being or that of a child. The truly bad case from a defense standpoint is a truly good
one for plaintiffs. Again, almost by definition, plaintiffs have a reasonably meritorious case,
and major damages. However, as pointed out above, they are real people, with real feelings,
who can be susceptible to human approaches, at least in a given case.
Perhaps the most important tactic to use at these mediations is counsel’s own sincerity. There
are places for a hard-nose, aggressive presentation at mediation; the type of case under
discussion here probably is not one of those. If trial counsel can project herself or himself as
a human being, with genuine feelings and emotions, the degree of persuasiveness is
advanced. It is seldom effective in these types of situations to overstate the strengths of the
case, as plaintiffs’ counsel, and perhaps plaintiffs themselves, are probably all too aware of
how hollow overblown claims are likely to be.
This is not to say that one should adopt a passive, apologetic approach. Far from it – unless
one can project a firm willingness to take the case to trial if the case cannot be settled
reasonably, the case is unlikely to be settled reasonably. However, if counsel can project an
image of sympathy for the losses sustained by plaintiffs, and an indication that reason can
prevail, sometimes the phenomenon of plaintiffs “digging in their heels” can be avoided.
In this regard, it may be helpful for the client representative present at the mediation to
express sympathy for the loss, along with an affirmation that the company is a good concern
which cares for its customers and others who may come in contact with it. This can often
create a congenial atmosphere facilitating resolution of controversies.
Knowledge of opposing counsel, the settlement approaches used by that counsel, and his or
her personality can be crucial in the conduct of negotiations during mediation. Likewise for
the mediator: knowledge of precisely how far and hard to push, and when to yield a point,
can materially advance the progress of the discussions.
4. Again, if the case is one which is away from trial counsel’s home base, local counsel’s advice can be
invaluable in mediator selection. The respective roles of trial counsel and local counsel in such situations are
topics which themselves could be the subject of extended discussion.
In the end, the success or failure of the mediation of the “bad” case will depend upon trial
counsel’s applications of the skills learned during a career of persuading others. The
successful settlement of the bad, difficult case can be more challenging, and sometimes just
as rewarding, as the trial of a “good” case to a defense verdict. Certainly, the benefit to the
client can be just as great. It is a task worthy of the best trial lawyers.