Clark: Tips for Settling at the Deposition

Wednesday, December 6, 2023 | 0

"Put that coffee down. Coffee's for closers only."

Scott C. Clark

If you are familiar with this iconic line from Alec Baldwin in the early 1990s movie "Glengarry Glen Ross," then you and I are sure to become the fastest of friends. If, however, the quote doesn’t ring a bell, then I recommend you go watch it right away.

Regardless of whether you’ve seen the film, the quote describes that sort of closer mentality that keeps me motivated to settle every case I possibly can at a deposition. Why?

• Because clients love settlements at depositions.
• Because it saves clients money.
• And it keeps the employer’s X-mod low.

After all, have you heard the phrase, "A closed file is a happy file"? I believe that with every fiber of my being, so I try to settle as many cases as possible at depositions (without giving away the farm, obviously).

Having said that, a closer’s mentality, a red power tie and a cheery disposition are not enough to get a case settled. It would be nice to have a few tried and true strategies under your belt when the opportunity to discuss a compromise and release does present itself.

No MMI? No problem.

Here’s a hypothetical for you: The application was filed eight weeks ago. The applicant’s deposition is set for tomorrow morning, and your file contains one treating doctor’s report and a magnetic resonance imaging study.

No chance on God’s green earth of settling this case, right? Well, not so fast.

As far as I’m concerned, EVERY case is settleable. No attorney worth his or her salt should be scared away from a settlement discussion simply because the applicant hasn’t undergone a thorough course of treatment and hasn't been declared at maximum medical improvement. This is where an attorney earns his or her keep.

You remember the AMA Guides? Sure you do. It’s the big, heavy, green book that’s buried in the far back corner of your trunk. It’s the one you pull out when you need to cross-examine an orthopedist about his marginally variable range-of-motion findings.

Well, dust that baby off and get to know those guides. A seasoned attorney can quite capably ascertain a reasonable disability estimate from an MRI study, assess an anticipated future medical value and wrap that case up at the deposition. We should never let the absence of a final report deter us from resolving a case when there are two reasonably minded and skilled attorneys on either side of the settlement table.

5,710 reasons to settle now

One thing I’ve found over the last 25 years is that applicants' attorneys enjoy making money (this just in). And I certainly can’t blame them for that. Our opposing counsels are primarily looking to protect their clients’ interests, and rightfully so. However, they are also involved in a for-profit business venture. Part of that venture entails securing a reasonable return on investment for the time they spend on their cases.

At a deposition early in a litigation, an applicants' attorney has typically spent very little time on a case. If he or she can secure an attorney fee on even a moderately nominal settlement, in addition to some generous Labor Code Section 5710 fees, you may be surprised at how often that C&R will be signed.

Simply divide the sum of those AA fees by the total hours spent by our friendly neighborhood adversary, and that may turn out to be a fairly lucrative case from a return-on-time investment standpoint. After all, would you rather make $3,000 on a case you spent five hours on, or $5,000 on a case you spent 25 hours on? Quite often, it’s not the total amount of the fee. Rather, it’s the fee divided by the hours spent earning it.

Now, I don’t pretend to be a sole practitioner or an accountant, for that matter. But I will tell you that I have settled many a case by being just a tiny bit generous with those 5710 fees. Certainly, I don’t like to make a habit of it, but for an extra few shekels, I’d say it’s worth it if it means saving my client tens of thousands of dollars in litigation costs over the next two years.

Play your opponent, not the cards

We’ve all come across the applicants' attorney who will file any case he can get his hands on and will settle any case he can as quickly as possible. And then there’s the guy who will never settle a case until he’s received an MMI report from PQME No. 6 on the case and pushed the permanent disability to the brink of life pension.

Obviously, the latter is likely a lost cause for settling at the deposition. However, anyone falling either in the first category or anywhere between the two will likely be agreeable to discuss a potential C&R.

You just need to know who you’re dealing with. Do your research. Talk to your coworkers. Find out how they handle their cases by asking:

• Does he or she settle early?
• Is he or she reasonable?
• Does he or she send contract attorneys to the depos?
• If so, do those contract attorneys have authority to settle?

These are easy facts to discover if you put a little time in beforehand.

There are obviously some horribly unreasonable and unreachable lawyers out there, but the vast majority, in my experience, are perfectly fair-minded attorneys who are just looking to protect their clients’ interests and make a little money in the process.

So a little advance reconnaissance and preparation will serve you well. Call ahead. Force your adversary to look at his or her file more than 45 minutes before the deposition. Propose a reasonable settlement value. Get the ball rolling a week in advance.

I’ve found that starting the settlement discussions well before the deposition date exponentially increases my odds of securing a compromise and release at depo time.

Conclusion

These are just a few things to consider when trying to resolve a case early that will, in turn, save your clients the time, frustration and expense of a seemingly endless cascade of litigation costs. In the meantime, I suggest that you begin by watching "Glengarry Glen Ross."

Always be closing, my friends.

Scott C. Clark is a workers’ compensation defense attorney at Bradford & Barthel’s Anaheim location. This entry from Bradford & Barthel's blog appears with permission.