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    In the final episode of this multiple part series of Settlement Nation, we chat with Jason Neville from the Spence Law Firm and Jakob Norman from Trial Lawyers for Justice – both respected and seasoned plaintiff trial lawyers, who started their careers working for the defense. In this episode, we cover questions sent in by our listeners, as well as demand letters / settlement opportunities, policy limit demands, reinsurance and carrier responses.

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    Courtney Barber:
    Welcome back to Settlement Nation and part three of our deep dive into the defense perspective with Jason Neville from the Spence Law Firm and Jakob Norman from Trial Lawyers for Justice. If you missed part one and two, make sure you go back and give them a listen. So what we spoke about in our last episode that we're going to open the floor up to our listeners and to members of the plaintiff attorney community to send in their questions for both Jason and Jakob regarding the defense perspective.

    Courtney Barber:
    So today we're actually going to be covering some of these questions that people sent in and covering a few other things that we didn't get to in part two. So we're going to dive straight in now. So guys, one of the questions that came in from one of our listservs was when the defense needs to work up their file and their documents before they can settle, what can we do as plaintiff attorneys to speed up jumping through the hoops to get faster settlements?

    Jason Neville:
    I think you push the case. They like to sit back and use time to their advantage, right? What they don't like is to be pushing back on requests, pushing back on depositions and things such as that. I guess this is more so once you file the case, is to push it, be sending the letters, you'll be thorn in the side of the defense lawyer.

    Jason Neville:
    Because what you're doing is you're working their file up for them. Then once you've gotten to a point, you can say, listen, in your demand or settlement opportunity letter, you can say you have all the information now, you know you can settle this case now. If you don't, you're just dragging it along.

    Jason Neville:
    Pre-suit, get them everything. It's hard to push, of course, pre-suit but if you get them all the records, you get them everything that they're going to have in discovery, a lot of times we think we should hold back and wait. But get them everything, you've then built their file and unfortunately, then it's in their hands and whether they're going to settle a case then or force you file it.

    Jakob Norman:
    I think that's a good distinction to make. A lot of people have taken Running with the Bulls and they kind of get focused on the letter part and what they don't always get focused on is what maybe should accompany the letter. Pre-suit-

    Jason Neville:
    Sure.

    Jakob Norman:
    Remember these folks don't have a lot of stuff. Oftentimes lawyers refuse to give them stuff. They think it's a game, they think it's worth hiding somethings, or I'm not going to give certain things until it's time to file. But the fact of the matter is if you have it, get it to them, it helps them make a better decision sooner. In this case, a decision that's going to help your client.

    Jason Neville:
    They know what they should have. I mean, they have thousands of cases all over the country that they're handling. So they know what information should be out there and if they don't have it in their file, oftentimes they will have a checklist, a digital checklist, do you have X, do you have Y? Sometimes that prevents them from internal policy-wise from moving forward to try to resolve it. So they know what they should have, so it's sort of being too cute by half a lot of times, like Jakob said, if you're holding off on things.

    Courtney Barber:
    Fantastic. So question two, if it seems like we are stuck at a certain level of reserves in a pre-lit [pre-litigation] case, what can we do to shake the tree to get some new eyes in the file and get more authority?

    Jason Neville:
    That's a tough one. That's a real tough one in part, because a lot of that is in the hands of the adjuster, and whether or not they're spooked by what they see to kind of bump it up to their supervisor. What you can do is get them everything, for one, but also show them that they're going to have risk. I know that we're going to be talking later about associating with trial council and things like that, but if they're not scared at whatever level they have of authority as an adjuster, they're not going to do anything with it. So some of it you're stuck with, if you have a small, what really, truly is a small case, well, it's truly a small case and it's going to be tough to get it moving ahead.

    Jason Neville:
    But if you have a bigger case, one, give them everything and then go through and show them why it's scary. Send them a letter and reattach documents. I have a friend that will go through and he will have all the insurance codes for the medical records and he'll put all those codes out there for them because sometimes carriers use that. know sometimes that can do nothing but sometimes it can really scare them and move it up a notch.

    Jakob Norman:
    I think people need to keep in mind these are people too. Just like sometimes we have ego and pride and stuff like this, these adjusters have processes and one of the processes, of course like most people, is try to handle as much as they can without pushing it up. So the proverbial, when you have a problem with someone doing something, you ask for their manager, it doesn't work that way to either change reserves or necessarily get more authority.

    Jakob Norman:
    I think we talked about this a little bit in prior episode, but without some kind of case changing event, without something major, there's not going to be this magic trick that is easy to tell you a way to go in this direction. But I think like Jason said, when we're talking about people and we talk about fear, certainly if you've associated with national council, if there's potential bad faith, if there's a couple of things that may get other folks involved, but just demanding that, just writing that in letters and just hoping it is never going to get you where you need to be in that regard.

    Jason Neville:
    Also I think how it comes across - if you're being an asshole in the letter or on the phone with them, they're less likely, even if you're right and it should be moving up, they're less likely to do anything for you. It's going to go off to the side, go into their big pile of to do later. But if you can say, "Hey man, I know you haven't done anything with this, but I want you to look at this because I think this is something that really makes this case different."

    Jason Neville:
    If you're just nice and polite, that really can go a long ways. Because as we talked earlier in prior episodes, these guys take the worst from lawyers, the worst from claimants sometimes who are rightfully frustrated that they're not getting the attention. Sometimes it's so refreshing for them to hear someone treating them like a human, that they will then, to the extent that they can or that it deserves, move the case along.

    Courtney Barber:
    This is really great advice and for anyone who wants a little bit more of information on that topic, make sure they do listen to part two because Jason and Jakob covered that in depth. So as we move on to question three, this is really interesting, the writer wrote in, does it make any difference if we redact medical bills or records when submitting demands?

    Jason Neville:
    I saw this and I wanted to ask a question in return, is what are you redacting? If it's redacting things like social security numbers or things that we are required to redact in written discovery, no not at all. If you are redacting things like the cost of bills, I suppose, is another way to look at it, I don't think so. That's one piece of information that they're going to want.

    Jason Neville:
    I know that there are various theories on this and ways to think about it, whether you talk about and show them all of the medical bills and what it totals or you don't, and you focus on the actual injuries and the effects, these guys are going to want to see that. And it's something that, in my view, it's sort of if you have a case with huge personal damages, human damages but very little medical specials, well, you're going to have to address that.

    Jason Neville:
    You can address that and make it part of your case and if you're trying to hide that from the insurance adjuster, it's not going to do you any good, and from my view, comes across potentially as a weakness. You're going to have to, if you get to a jury, address that as sort of like having a very significant brain injury case where you have a vehicle that's not very mangled up. They're going to want to know, well, how does that work? So you have to go in and you have to adopt that as your own and use it to your advantage.

    Jakob Norman:
    I'm glad you said that, Jason, because when I saw this question too, you have to ask yourself, what is the purpose of redacting? Like you say, if it's to hide something that you know in the regular course of discovery that is going to have to be there, I think you're wasting everybody's time. Any time we get redacted information on our side, I got an autopsy report not too long ago with a big black redacted section and I cannot figure out what's in there.

    Jakob Norman:
    So I know the city of Bakersfield has something in there they don't want me to see and all it's going to do is drive me to want to see it and it's not going to let me want to work with them until I know what the purpose was. So I would never recommend redacting anything, just like I've previously recommended, give them what you got. If you know you're going to have to give it to them in the future anyway, there's really no point in redacting.

    Jakob Norman:
    Well, and Jason, there's some more questions and still a few more things that I guess we didn't totally cover in the first couple of episodes and people love to hear and get a little peer into the defense perspective. So very thankful that you've been willing to share your 19 years of experience of doing that.

    Jakob Norman:
    But as we go back and the hot topic seems to be what we call settlement opportunities or demand letters, and people really want to say and know and understand what does that really happen? Could you break down a little bit about when you get it, what happens, how you're working with the other side and just explain that a little bit?

    Jason Neville:
    Sure. Part of it depends if you have what is a small case, and you're making a $30,000 demand, that doesn't do a whole lot, right? And let's say it's a $30,000 demand, and it's a $100,000- 500,000 policy, it doesn't do a whole lot to move the case forward. It does to a certain extent because every insurance company they're going to have policies.

    Jason Neville:
    When there is a settlement demand that comes in, they might have 14 days that they have to be able to check a box that they responded, or they have to do some other internal things. So you send that demand, let's go with the smaller demand example. It's going to get you a response, but it's not going to move the world for you, it's not going to move the world for you unless until you're up to the point where there is a question whether the value of the case goes beyond the policy.

    Jason Neville:
    That's where you start to get some red flags and yellow flags that are going up and should go up on the insurance side. Because one of the things they hear all the time and they try to kind of poo-poo it to a certain extent, but they really are afraid of extra contractual, what they call extra contractual damages. That's when you get beyond the policy limit.

    Jason Neville:
    Every company, I'm not sure if we talked about it before, but they will have re-insurance and it's sort of like an excess policy in a way for themselves or insurance for themselves. It's sort of multifaceted, but one thing for sure is if you have a million dollar policy, they will have insurance if they screw up. If they screw up and that opens up the insurance policy and now it's a $5 million judgment that they've got to pay, well, they have insurance for that.

    Jason Neville:
    When you're getting up to that point where you might be reaching the policy, and especially if you have a case that goes beyond it, they have to make sure that all their i's are dotted and t's are crossed so that when re-insurance comes in or insurance, they can say, "Hey, we did everything right. We did everything right, we complied with our obligations under our policy with you, and so now you have to come in and protect us."

    Jakob Norman:
    No, and I like this, and I think it's good when we get there. But if we could, just for a second, before we go into the extra contractual obligations or bad faith, how about you? What when you were seeing these, what I would consider average case demands when you're in the $30,000 - 100,000, and there's even more coverage, what's the lawyer thinking? Are you poo-pooing it off, or you say, well, I get paid to work this up, I'm going to work it up? But what's going on in your mind even before we get to that kind of insurance adjuster's mind?

    Jason Neville:
    It doesn't do a lot, honestly, and I wish I could say something differently. You get a demand and it doesn't do a lot. If you get a demand and they say for example, it is a policy limit demand, but you're looking at the case and you're like, "No way, if a jury got away from this, it's 20% of the policy." It doesn't do anything.

    Jason Neville:
    Sometimes you would get a demand and let's say the policy is $500,000 and you get a demand for $3 million, okay, that really doesn't do anything. Because you're always looking at the value of the case. And on that last example, that will do more for me as a lawyer than it would for the insurance carrier. Because at that point, the insurance carrier has no obligations. They have no obligations to do anything until they get a demand within policy limit.

    Jason Neville:
    If you get a demand that's a lower demand and it looks like it's a case that can be resolved, well, gosh, I'm looking at that in my former life as one, let's get locked to books, let's get that done with and I can go focus on other cases and I don't have to have this hanging around. It's going to be just another potential temptation that I'm going to miss a deadline or screw something up or just mess with my life, let's get it done.

    Jason Neville:
    In those cases, if the demand is done properly, that's what it's going to get me to do. But if it's just haphazard, if it's a one-liner, it doesn't do anything. If it's done right and you have the right documents and you have someone that you look at and they're analyzing the case properly, well, then it's going to get you to move.

    Jakob Norman:
    Well on those lines because you kind of said, you look at some of these and you're like, "Oh no, this isn't worth it," right? Like they're saying $1 million, I'm seeing this as $75,000. When we're going around the country and teaching people, I often have people tell me stories about cases that by the time they're done telling me, it's been my opinion that they underestimated the value of the case on the low side.

    Jakob Norman:
    In other words, they might be very excited about a $1 million dollar settlement they got, and I heard the facts and I thought, "Gosh, that might've been $3-5 million or more." How often on the defense side were you seeing people low ball what you were willing to pay? You have a number in your head, then you get this demand and you're like, "Oh, this is easy."

    Jason Neville:
    Far too often, unfortunately. Far too often. A lot of times it would be in the case that is a significant case that maybe that attorney shouldn't be handling because they don't know that type of law, they don't handle those big cases, but even on some smaller cases too. You would see that value and of course it's not, "Oh, you've low-balled it, I'm going to pay it." It's, "Oh, man. You're pretty high and I'm going to see if I can get you lower." It's always what it is. But far too often, unfortunately, you'd see that.

    Jakob Norman:
    Do you feel a pressure... let's go to that exact example. So let's say in your head it was a $100,000 case, they give you a demand for $75,000. So you already know that they were low where you're at and you're going to take a swipe at them since that's their opening offer. That's something you do without talking to... well, I mean, obviously you're talking to an agent, but is the defense always going to push that down even if mentally it's below where they were at? Is that something you're trying to prove something to your adjuster? What's going on in that relationship at that time?

    Jason Neville:
    Almost always, they're going to push it down. You're going to push it down because you're going to want to tell your adjuster, "Hey, I'm doing good work for you." It's the same way of if an adjuster said, "Hey, you've got a $100,000 dollars of authority, go try to get this case done."

    Jason Neville:
    Well, I'm going to try to get it done for as little as I can to show them, "Hey, I'm doing good work for you, come at me and bring me more cases in the future." There are a lot of, unfortunately, a lot of defense lawyers, as you can imagine, that they take joy in nickel-and-diming the plaintiff. I was never like that.

    Jason Neville:
    I always thought, hey, if I could do a good job and get it done for what the carrier wanted and maybe save them a little money, that's great so long as it comported with what I thought the value of the case should be. But I think that's probably more rare. Most lawyers, defense lawyers, are going to be really driving down that value to show that they're doing a good job. Unfortunately some of them, they truly enjoy it.

    Jakob Norman:
    We've all dealt with those and I'm glad that wasn't you. But if you could, then explain a little bit about as these decisions that are being made, is this a few emails back and forth? Do you jump on the call with the guy or gal? How is this going? How long do you spend going over value with them? And let's again, go with that example where a plaintiff's attorney's done a $100,000 demand, you think the case is worth $75,000, just a little bit of insight to what's now happening with you and the company from an actual, almost physical level, what's going on?

    Jason Neville:
    Part of it depends on who the carrier is and who the adjuster is. Because on some of advantage, you have a good relationship, you can say, "Hey I think it's worth $75,000, let's come back at $55,000 and give us a few moves." And they will do that. Sometimes it's emails, usually I would always prefer a telephone call because sometimes one, you're going to have to reeducate them about what the case is because they have so many that they're not going to really know it off the top of their head and also it can get intricate.

    Jason Neville:
    So it's easier just to do it on a phone call. But it's going back and getting that authority. Then I would always make sure they're comfortable with my strategy, this is what I want to do and this is where I think we can get it or we can try to get it, et cetera. There will be some times when, and I think I said it a few moments ago, where a carrier would say, "You have $100,000 in authority, go try to get it done."

    Jason Neville:
    What I would always say if I thought the case was... if I wanted to get it done less than that, or thought it should be so for less than that, I'd say, "No, don't give me a $100,000 in authority, give me $90,000 in authority. Because that way I could at least salve my soul when I'm telling the plaintiff's lawyer that the authority is $90,000. You'll hear this." And then it allows you to go back to the insurance carrier and get some more if you need to get some more.

    Jakob Norman:
    It's so interesting. I hope for the people listening, how this really works and when you and I worked together, we used a program called Jury Verdict Research. Of course, people know about that, maybe Colossus. I remember kind of going back to that special computer at the time, typing in, this is a 34 year old woman, this is the injury, this is how much she worked. How much in your recent time before you left to become a plaintiff's attorney, would you say the defense is really relying on that software-based analysis to get them in the ballpark of value?

    Jason Neville:
    It doesn't exist as prevalent as it used to, at least as of three years ago. It just wasn't out there. I think Westlaw and/or Lexis would buy up some of those programs and then force you then to use instead of using it for $250 on a case, you're going to have to go pay $7,000 to go find the potential jury verdict value.

    Jason Neville:
    I never found what Westlaw was doing or Lexus at the time as being very valuable. I'm sure there are other things out there that are coming to mind. But where I left it is you could always go out and you could find other jury verdicts or settlements if they're reported, and this is what this type of case is going for and use it to either build up or push down the value of the case.

    Jason Neville:
    I know insurance companies, it's huge for them because they have their own databases that aren't published, not only within their company, but probably intercompany-wide about what a two level lumbar fusion is going to cost, and what that value is. It's important for us in what we're doing to maximize the values of these cases and to make sure that we're doing our clients justice and making sure that we're maximizing what they can get.

    Jason Neville:
    Because if you have a lot of low level, low ball settlements out there, it drives the "settlement value" in the insurance company's mind down. So when you have that same case and they're telling you, oh, this is worth, whatever, $400,000 and you're saying, "No, this case is worth $700,000" they're going to point you back to all these cases. So what that causes us to do on this side is then to go try those cases. It does a disservice to the entirety of the plaintiff's bar when you are settling cases for less than their value.

    Jakob Norman:
    Absolutely. I'm sorry to interrupt. When I interrupted you, you were talking about a little bit about reinsurance and how reinsurance works. I was just going to give you an opportunity to wrap that up, and I apologize for interrupting.

    Jason Neville:
    No, you're fine. I mean, it gets complicated. When you're talking about demands and especially policy limit demands, or you're getting whatever term you want to use, a settlement opportunity or a settlement demand, if you're getting close to that and over the limit, it triggers a lot more things. It triggers more things for the carrier to do, because they want to protect themselves to make sure that whatever reinsurance or insurance they have to protect them on that claim, that they've dotted all the i's and crossed all the t's.

    Jason Neville:
    That's when you can start to move a case, when you can demonstrate to them and prove to them that, hey, this is a $400,000 case, and that you have a $100,000 policy. I'm willing to accept this $100,000 today, but if you don't give it to me today, then I'm going to take you to trial. That's when the gears start to turn. From our side we want them to turn because we want to get them locked up, right? We want to open up that policy.

    Jakob Norman:
    I'm glad you mentioned the whole today thing. This is something that I've seen pop up on the list. People have asked questions about this. What is the reasonable amount of time to give these folks? Is it 10 days? Is it 30 days? I know there's not one magical answer, and certainly today's too fast.

    Jason Neville:
    Sure.

    Jakob Norman:
    I get what point you're making,, but is there a general rule that folks out there might be able to at least adopt outside of any specific statutory requirements they might have in their state? You know it, you haven't been in the position of having to deal with it, relay it to them, get with them, deal with all the different things you have to deal with. What is the right amount of time if there's no rule, requirement of how long a demand should be out there for?

    Jason Neville:
    I think a good rule of thumb is to look at it from the standpoint of a judge and what that judge is going to view as a reasonable amount of time in order to say, "Yep, you had your chance and the plaintiffs were correct in not giving you another opportunity. You're in bad faith and you've opened up that policy."

    Jason Neville:
    So if you say five days, 10 days, sometimes 30 days, depending upon where you're at in the litigation and how much information they have, of course drives all of that. Anything like 10 days, 20 days, probably too short. You get into 30 days, in my view, that's a pretty good time. I say that because you know you're going to get a request for more time and my view is to always give it to them.

    Jason Neville:
    If they come back and they want another 45 days, say, "No, but I'll give you 30 days," that's reasonable. It's all from that standpoint of how is a judge who may or may not have ever done this type of law before, right? How are they going to look at it to say, "Yeah, insurance company, you had a full and fair opportunity to resolve this case for your insured and you failed to take advantage of it."

    Jakob Norman:
    Well, maybe you could talk about that Jason because this is also addressed in Running with the Bulls. But almost every single time we're asked for more time and it starts to feel like we're being asked for more time for no good reason. It's not because it's being worked, it's not because they actually need it, but it's almost like a matter of course. Is that feeling true or when more time's asked for, is it really needed?

    Jason Neville:
    Most of the time I think it is that they haven't done their work. They have so many thousands or hundreds or whatever of cases that they're handling. And a lot of them have these time sensitive demands on them and they haven't done their work. I mean, for instance, I have one right now where gave a 33 day time on it and they told me right away, "Hey, we're going to go get this reviewed by coverage counsel to see if there's coverage," fine, fine, fine.

    Jason Neville:
    They come in on the 30th day and say, "Hey, can I have another..." I think they asked for another 30 days and I might've given them 23 and they still hadn't gotten coverage counsel. Well, then I learned at the expiration of the next deadline that they still hadn't gotten coverage counsel. I think that for the most part is that they haven't done their job.

    Jason Neville:
    Whether it's they haven't checked the right boxes in order to send it up to their supervisors to get the proper authority or they just haven't done the proper groundwork, that's what I think that it is. So when you're getting those requests for extensions, ask them why, what more do you need to do? Do you need anything more from me? Why is it that you need more time? And see if they'll respond.

    Jason Neville:
    Because it all goes towards setting them up for bad faith. If they're saying they need to do something simple like get coverage counsel that they should've gotten day two after they received the complaint, well, if they keep failing to do that, well, that's on them, right? A lot of times they'll tell you why they may need more time.

    Jakob Norman:
    Great. Again, it's just so commonly asked, I'm thankful that you're able to address it. I want to start talking a little bit about when the carrier's more the one driving the ship, or they're asking for a lot of stuff, they're threatening. But prior to going there, we have a philosophy to try and be in the driver's seat, right?

    Jakob Norman:
    Don't start asking for extensions right away, some folks are filing lawsuits right up to the last minute. But then they instantly go into a reactive mode asking defense counsel for extensions on discovery for even maybe the self-executing stuff and which obviously involves a court. But when you see plaintiff's counsel regularly and repeatedly asking for favors, does that change your value of the case or just how you view that person? Or can you explain a little bit of that before we go into aggressive carriers?

    Jason Neville:
    Yeah. I think it depends on the situation, it's never good for sure. And most of the time it's, well, this person doesn't have their shit together. Why wouldn't you have your experts ready by the deadline? You're the plaintiff. Didn't you talk to them before you filed the case, didn't you talk to them right after you filed the case depending on the situation? Why don't you have your stuff together?

    Jason Neville:
    And so it certainly goes into factoring out, well, how is this case going to resolve, what can I do with this person? Are they going to be prepared for trial? All of the extensions, and I've never seen an extension that I didn't want to have nor one that I would grant, but I think it's weakness, unfortunately. It shows that you don't have your shit together.

    Jakob Norman:
    Understood and that comports with what we're telling people. If you're going to do this, if you're going to be in this line of business and you're going to get behind the wheel and drive, then you better get behind the wheel and drive.

    Jason Neville:
    And it also... I mean, if they're granting you an extension, well, then you're going to have to grant them an extension. I think certainly let's do that, we're all human and life gets in the way a lot of times. But it just sets the case up to just kind of go on and not get dealt with.

    Jason Neville:
    A way as we talked earlier, how do you force the issue sooner? Well, you drive the case. You come at them and say, "Hey, I want to depose these 10 people and next month I've got seven days. Do you have those seven days?" No, you don't. Okay, I will take two people, you've got two days. And you drive that case. It puts the defense lawyer on their heels.

    Jason Neville:
    Because you got to remember, most of these defense lawyers, they make their money by having a lot of cases, a lot of cases going on because they don't get rewarded like we do if they resolve a case. They have to go fill all that time in. They've got to go fill that three week trial and the month of trial prep, they got to go fill that up with depositions.

    Jason Neville:
    So they're almost always overloaded and they don't like to be on their heels addressing cases. They're going to address the ones, either that have deadlines coming up that they have to address, or the ones where you've got a plaintiff lawyer that is driving that case. That is going to get them on their heels and it's going to push the case forward faster.

    Jakob Norman:
    I like it. Something I've told other folks is I think if you're in a state, which you are Jason and many other people are in, certainly the folks in the Federal world, if you have some self-executing requirements and you don't have that information by the end of your intake, you're probably screwing up. If by the end of your intake, you don't know who the witnesses are or potential witnesses are and what they have to talk about the case, you're probably messing it up.

    Jakob Norman:
    Sometimes I've even given my clients advanced basic discovery to start working on, especially if I sense even dealing with them, they're a little bit slow to get back to me, or they have hard time finding things. I'll get them sample discovery that I've stolen from other cases, have them get working on it, that way when it comes, I'm ready to go. But there's really, outside of things that can happen in life, a reason to be a regular asker for extensions. And I'm glad to know it looks weak from your side because it certainly looks weak from our side.

    Jason Neville:
    It absolutely does. I think it's just that, the overwhelming force. If you have everything set up to where at each move that they make on the chess board or what have you, you've got them checked and you've got that covered, they're soon going to realize that, and it raises the value of your case and it increases the chances that you don't have to put your client through a trial to get them full value.

    Jakob Norman:
    Awesome. Hey, there's a little bit of mythbusters out there that I kind of wanted to run through with you, whether it's true or false, some of the things we hear from carriers like defense money being separate from indemnity money. Is that true, is that a myth?

    Jason Neville:
    It's stuff that on a defense that I would hear. Because part of what I would always do when I'm giving my assessment is, hey, this case is worth... Liability is a lock on this case. And so you're going to pay $200,000 at trial on your best day. And on top of that, you're going to pay me $120,000 to go try it. So sure, they're high in their assessment at $300,000, but you're saving $20,000 by paying that trial.

    Jason Neville:
    And you'd always get, well, the defense money is separate from indemnity money. It's just, to me, just such a bunch of horseshit. I just can't imagine a business that runs that way. Later in my career, I was working more closely with some carriers and we got to be friends with some of the supervisors. It's not it.

    Jason Neville:
    That goes into their reserve right away, they're looking at it constantly. It's why they want to keep cost down, it's why very soon we're going to be doing a whole lot more depositions by video or having that opportunity, because they're not going to pay their defense counsel to fly around the country. So it's an absolute myth, but it's one that we'll hear forever.

    Jakob Norman:
    Busted. All right. What about when they tell us that, hey, you know what? This is the amount of money we have, this is the date. After that, we're going to trial.

    Jason Neville:
    Almost always wrong. It's all brinksmanship. So usually what happens is the adjuster's going to get authority, let's say it's a $100,000. And they're going to tell their defense counsel, "Hey, my authority is $85,000. That's all I've got. They won't give me any more," because they want to give themselves some leeway to get it done on the cheap side, right?

    Jason Neville:
    So they look better than their supervisors, but also so they don't have to go back to their supervisor to get more money. They've got that $15,000, that 15% of a cushion. There's never a deadline. It might be that they have a deadline like they say, sometimes it can take three weeks or sometimes six weeks to get authority, a settlement authority on a case. And so sometimes there might be some sort of soft internal things that yeah, we got to do it that way, but the reality is if they're scared enough, they're going to go get the authority.

    Jakob Norman:
    Jason, are carriers looking at cases as money or do you see them ever look at these humans and the devastation that's happened to them?

    Jason Neville:
    Boy, in my experience it was more rare. It was uncommon to talk to an adjuster and they would say, "Hey, I've got a new case for you. Oh boy, it's so sad." Very rare, very rare. That's not that they're bad people, it's that they're in the world of X's and O's and numbers. So they're not thinking of it that way. And in part, because if they thought it that way, I suppose it's tough not to take that home with you. But it's pretty rare.

    Jason Neville:
    In my view, that's the way you maximize the value and that's the way you get past the roadblocks in the case, is to show them that human aspect because it's that human aspect that the jury's going to see, and it's the human aspect that the jury's going to appreciate. The jury is going to likely appreciate less the X's and O's and the standards of care and all that stuff.

    Jason Neville:
    It's the human story that's going to come across to that jury and especially when you're talking about damages and increase the value of the damages. So if you can do it right, and it's hard to do, to make the words come off the page when you're writing, you can do that and potentially get that full value pre-trial.

    Jakob Norman:
    Great. That's great advice. As we get close to the end here today, I want to go over a couple of questions people have on settlement opportunity letters, formerly known as demand letters, and just hit you with a couple of questions and maybe you let us know how some of this stuff either made you deal with the case or the adjusters you worked for deal with the case. The first one is how important is it to address it to the defendant?

    Jason Neville:
    I don't know that it's that important because they should ethically be providing that to their client. So I will always put in there, I always address it either to the carrier or to the attorney. But I always put it in there, I want you to share this with your client and share this with their personal counsel and if they have it, and if they don't have it, I sure would invite them to obtain personal counsel to give them separate advice.

    Jason Neville:
    So I don't know, I mean, we can't as lawyers, I can't send a letter to John Smith who's a defendant, a settlement letter if we're in litigation because I know he's represented. So if I send that to him and I send it to his lawyer, I'm not sure if it has much of an effect. But certainly specifically addressing that they see it and then specifically addressing some of the potential harms that can personally come to that defendant within the letter is critical.

    Jakob Norman:
    You just hit a couple of my next questions, so that's great. This idea that we know ethically, the letter must go to the insured, that seems clear. What we like to do in depositions is of course, pull out the one, two, three, however many demand letters are on and start putting them down in front of the insured and asking them, did they get it, did they understand it, when were they given it? Did that ever happen to you while you were a defense counsel? And how did that make you feel during the deposition?

    Jason Neville:
    Boy, I'm trying to think if that happened to me. And it's possible that I did, but I can tell you what it would have done to me. It would make me squirm for sure especially if, for example, it's a $500,000 policy, it's a $50,000 case. Sometimes that might slip, the paralegal secretary may not have sent that along to the client maybe. And from the defense side, ethically, you need to do that, but it's not that big a deal because they're protected, right?

    Jason Neville:
    So if that happened, of course, that would make me squirm as would have happened almost every time you've properly provided them the demand letter. I don't know what it would necessarily do so long as that happened and you've had that conversation. I think the importance of it is when they have not seen that or they have not had the opportunity to talk to the lawyer about it, then I mean, you're setting the carrier up, right? Because their agent, the lawyer, is setting that carrier up for the bad faith.

    Jason Neville:
    And so I think it's good. Of course, in my mind I'm envisioning scenarios where it can just be taken too far and the plaintiff's lawyer is asking some ridiculous questions about it, possibly. But certainly the defendant knowing that there is an opportunity to resolve it so they didn't have to be there and that they don't have that potential risk of a trial where their assets are on the line, that's a big deal or it can be a big deal.

    Jason Neville:
    Because when you have a defendant and not if it's like a $50,000 case and you got a $500,000 policy. But if you have something where their assets might be on the line and all of a sudden they're chirping at the insurance defense counsel, well, that's taken more seriously, and especially so if they then go out and they get personal counsel and that counsel is writing letters to the insurance company and to insurance defense counsel. But all of that stuff does add pressure.

    Jakob Norman:
    Well, Jason, on this note, and I left the firm that we both worked at together a long time ago. I don't remember 5% of the practice and maybe even less ever dealing with the actual insured. Is my memory way off, or how often are you actually interacting with the insured?

    Jason Neville:
    It's not a ton. And maybe it's all case specific, right? But I mean, if it's a typical car accident case that doesn't get close to the policy, a lot of times your interaction is pretty minimal. At first, you'd walk them through the case, you'd certainly work with them on written discovery and if their deposition is taken, it's there.

    Jason Neville:
    My sense, the majority of folks, they don't want to be bothered with litigation, with the lawsuit. That's why they pay insurance. And they're almost perturbed at you as their counsel and the insurance company that it's continuing on, why isn't settled? They don't care if they... they seldom care if the plaintiff gets a little bit more money than the "value of the case is". They just want it done. So there's not a ton that's going on there.

    Jason Neville:
    Physicians, a lot more for sure. If you are working with corporations defending oil and gas companies, and you're working with inside corporate counsel, general counsel, for sure. Product manufacturers, for sure. So it's all case specific. The bigger cases, bigger value cases, you can, from our side, plaintiff's side, rest assured that they're talking to their lawyers more.

    Jakob Norman:
    Right. And you alluded to this a little bit earlier, and I've talked about it of low-ending or low-balling of the value of the case by plaintiff's counsel, which is of course not what's best for everybody. But I've also... and I think we talked about a little bit in one of the other episodes is folks usually don't ask for help until the end.

    Jakob Norman:
    And sometimes by the time I'm looking at a file, I can think of one a couple of months ago where the day that I was being asked for help, the very next day expert deadlines were due. There was just no way I could positively impact that. But what advice might you have for folks out there about when to ask for help, when to pair up or how to form a team, knowing that the majority of everybody that does what we do is doing it in an office typically by themselves and not more than one to two other people in the office?

    Jason Neville:
    Early. Do it early. I say that because on one hand, on the defense side, there's always going to be initial litigation report. This is what the carrier uses to set the reserve and kind of learn about the case. It's usually not within 60 days or 90 days after the complaint is filed, something like that, everybody's different.

    Jason Neville:
    There's a section in that report that talks about the judge and the jurisdiction and juries but also opposing counsel. That's where I would put in there, okay, this is a medical malpractice case, this guy's never tried a medical malpractice case. I don't know that he's ever had a medical malpractice case. He or she has no business taking these cases, they're not going to know how to do it.

    Jason Neville:
    Sometimes it's, yeah, they're a small two person firm, that they don't have the finances to go out and fund this case properly, to go get the national experts or even know who the national experts are. And then lastly, hey, this person doesn't try cases. They're going to talk about trial, but they don't try cases. Or this person does try cases.

    Jason Neville:
    Now, I'll move to the opposite of that. But taking that assessment, that takes all of this risk away from the insurance company. When they're in litigation, they're still trying to make money and make money by not losing money. And part of that is by assessing the risk, and that's what goes into the reserve and things such as that. And so if they know that this case isn't going to go to trial, then they don't have a risk.

    Jason Neville:
    So they don't have a reason to pay more than they think they should and they don't have a reason to be scared when you're getting closer to a trial date because they know that if they display some brinksmanship, well, they can guess that the case is going to settle, right? Now, the opposite of that is, hey, this is a national firm, a firm like mine, or a firm like yours, Jakob, and these guys know what they're doing.

    Jason Neville:
    They have the money to, not outspend the insurance company per se, but to go fully fund the case, and they will go take it to trial. That changes everything. In my view, it increases the value of the reserve number. And then when you get down to crunch time before trial, it changes the dynamic because they know that there's a good chance that it's going to go to trial, and that's risk for them.

    Jason Neville:
    They don't like risk because they can't put a number in their books for risk. And that's what they're trying to do with these reserves, is so they can kind of look at the years or look at the next two years, however long it goes and just project out earnings, project out things like that. And they can't project risk and they want to minimize that risk. And that's what as trial lawyers, we have that advantage, of going to that jury and imposing that risk unwillingly on them.

    Jakob Norman:
    That's great, Jason. That is part of what we do like to tell people about ask early, ask often, it changes the value for everybody. Don't stick a flag in the sand because this is the best case that's ever walked in the door. It usually doesn't do you favors to try stuff that you haven't tried before, to get in that area of the law you haven't tried before and to deal with experts that you've never dealt with before. It's just not good for everybody. So really appreciate the insight on that.

    Jason Neville:
    Well, for sure. And just one more follow up on that too. If for your example of they get you in right before experts, well, what are you going to do? Or worse yet, right before trial, and what are you going to do with that case? Well, a whole lot less than you could have done when you could have gotten the experts that you know and work the case up properly and taken the depositions or helped in the depositions to set the defense up properly and appropriately.

    Jason Neville:
    Sometimes you would see and I would see it from the defense side and we just know that it happens, where people will get a case in. Let's say they do family law and all of a sudden there's a... or they just do smaller work. It's important work, but it's smaller work and they get in a big case. And this is the case they're going to retire on. This is the case that they're going to send their kids to college on.

    Jason Neville:
    And so they don't want to share in that fee. They think that they're going to somehow rise to the occasion as opposed to fall back on their skill set or their training and they're going to rise to that occasion and they're going to turn a pig's ear into a silk purse. It just never happens. I mean, well, I say it never happens. Of course, it's happened before, but it's uncommon.

    Jason Neville:
    So again, I would encourage everybody, if you have a case that scares you, go talk to someone. All of these firms are going to talk to you and they'll spend time. Sometimes you'll just spend time talking with somebody, "Hey, this is what I think you should do, this is what I think you shouldn't do." And they're not sharing the case, they're not co-counseling with me, but I'm helping them.

    Jason Neville:
    But if they really want the help, well, then they need to co-counsel. At the end of the day, you might make as much or more than you would have done had you taken on yourself. But even if not and even if you missed out on part of your total fee, you'll learn the craft and learn how to maybe next time, if you get a bigger case well, you might be able to take that one on your own. So it's always... well, it's not even advantageous, it's absolutely necessary to consult early.

    Jakob Norman:
    That's great, Jason, I really appreciate that. And it is something we try and do. And you know what? It's really great to have known you since fourth grade and see that you made all this insight from the defense side. But it's very great to see you not only switched to the plaintiff's side, but switched over to the Spence Law Firm. Of course, so many people who are plaintiff's attorneys look up to Gerry, what he's done for the career field. And I can truly say I'm happy to know you and happy that you took your time to share your experience with us.

    Jason Neville:
    Well, I appreciate that and I just feel so fortunate to kind of be where I'm at and do this for people. In a lot of ways, I feel I have a... in a weird way, a penance that I've got to make up for some of my past life. But I appreciate that and I've enjoyed talking with you.
    Courtney Barber:
    Well, thank you both Jakob and Jason for your time. For everyone listening our Confessions of a Defense Attorney series is our most listened to series so far. So it seems as though this is information that everyone has been looking for, and I'm so glad that we could actually put it out now where people can go back.

    Courtney Barber:
    And I've heard that we've had listeners who have listened to the episodes two and three times over because there's so many gems and words of wisdom in there. So last thing for both of you guys, where can people contact you? Can you share your email or if they want to partner out with you on a case, how would they get in touch with you first, Jason?

    Jason Neville:
    Yeah, for sure. Call me. Call me or email me and I'll just talk you, I'll talk to you about things. And there's times that you'd see on listservs and boy, I want to respond, but it's going to be a 50 minute email and I'd rather just spend 15, 20 minutes talking about it. And so I'd be happy to do that just on whatever issues you're thinking about, especially issues that we've been talking about. Call me at (307) 337-3833 or email me at neville@spencelawyers.com.

    Courtney Barber:
    And Jakob, same for you. Can you share your information so people can get in touch with you as well?

    Jakob Norman:
    You bet. Like Jason, sometimes it's just great to pick up a phone and have a real conversation with a colleague, no matter what part of the country. And like Jason, we like to do stuff all over the country. Wherever justice is needed, we're there to help. So you can reach me on my cell phone at (307) 267-9432. You can call the Trial Lawyers for Justice office at (866) 854-5529. And to get me by email, I'm Jakob@tl4j.com.

    Courtney Barber:
    Perfect. Well, thank you so much both of you. And for all of our listeners, this is the wrap-up of part three. You never know, there could be a part four, I feel like this is brewing. This has been a great series. And please subscribe, comment and write Settlement Nation. We are slowly rising up the ranks in the Trial Lawyer Podcast in both Apple and Spotify, and we thank you both again for your time.

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