“Mediation” begins at the Claimant’s deposition…….
Following the Claimant’s deposition, the E/C attorney prepares and sends a summary of the deposition to their clients. Most importantly, the overwhelming majority of defense attorneys are required by most carriers and servicing agents (per their client’s guidelines) to include in this summary, their initial assessment of settlement value for the adjuster. If the employer is self-insured or has a high deductible ($1,000,000), the E/C attorney must copy the Employer’s risk manager or “money person.” Therefore, E/C attorneys devote a section at the end of their deposition summary wherein they describe whether the Claimant would make a good, credible, likable, reliable witness before the JCC. In this regard, the defense attorney will specifically comment on whether the claimant appeared genuine, honest, forthcoming, etc. vs. guarded, vague, unlikeable, etc.
Further, the Claimant’s attorney should keenly pay attention to what information is asked and how it is answered by your client, such that the E/C attorney will obtain all accurate information necessary to fairly and thoroughly value all aspects of the claim and any outstanding requested benefits. Of course, this is critical to have the best chance for your opposing counsel to accurately evaluate the “settlement value” of your client’s case. Thus, if the E/C does not cover or fully learn about all the injured body parts, conditions, symptomology, and importantly depression and anxiety, the Claimant’s attorney in my opinion should prepare their client very well to possibly answer these questions by the Claimant’s attorney on cross-examination.
I know it sounds elemental, however over my 30-plus years practicing at best possibly only a dozen times has a Claimant’s attorney either rehabilitated or inquired of their client with this type of questioning to increase the value of the case or avoid finding themselves later in a litigated dispute whereby the E/C is taking the position the Claimant, “never complained or mentioned “this or that” in their deposition. Certainly, this now “questionable condition or issue” will affect the settlement value of the case. However, this issue at the actual mediation (adversely affecting the settlement value) could have been preemptively avoided with good preparation of your client if you asked them questions on cross-examination and they were prepared.
Thus, the Claimant’s deposition is the first time the E/C attorney is “sizing up” and preliminarily valuing the case. As such, it truly is the first step towards settlement. Therefore, the Claimant’s deposition is critical to the valuation of the settlement value of a case for mediation, and why I say the Claimant’s deposition is when” Mediation begins in advance of the actual Mediation”.
Theo Johns, Legalsolutionsofflorida.com