The State Bar of Wisconsin Litigation Section is one of few professional organizations that brings together adversaries.

Hopefully, we don’t normally think of ourselves as adversaries, but this section involves attorneys who consistently advocate for opposing parties with a balance of defense and plaintiff members on the board. While we may be on opposite sides, we understand that many of our struggles are the same and we usually work collaboratively to find solutions.

For those challenges that are unique to each side, communication may help us work better together. With that in mind, in this article, I will highlight a few things defense lawyers do that drive plaintiffs’ counsel crazy.

I know no one reading this blog would ever do these things, I am just asking for a friend. …

Surprise Releases

Many personal injury cases are resolved at a mediation conference. The general terms of the mediation are often codified in a short document that sets forth an amount to be paid, perhaps a deadline for payment, and a comment regarding amounts to be paid to subrogated carriers.

What drives me crazy is when, 30 days later, I receive a 17-page release from the defense with terms that were never discussed in any way during the mediation. As examples:

• Confidentiality. If no one requests or discusses confidentiality during the course of the mediation, I do not instruct a plaintiff to keep the settlement information confidential. Without that warning, my client may have told his entire social media network that he is going to receive a pile of money from that other guy’s insurance company. Asking for confidentiality for the first time in a release sent long after the settlement conference is impossible to enforce with a client.

• All bills must be paid from the settlement proceeds. At times, I have received releases that require that any outstanding medical bills must be paid from the settlement proceeds. Inevitably, these same cases involve disputes regarding causation and relatedness of those medical bills. In addition, my client may choose to negotiate those bills or even consider bankruptcy. There is no exposure to the defense from an outstanding medical bill and this should not be in a release.

• Receipt of which is hereby acknowledged. This is a minor issue that really bothers me. I have received many releases, more commonly in pre-suit negotiations with insurance adjusters but at times from defense counsel, in which I am instructed the release must be signed before a check is issued. However, the release starts by stating that in exchange for the payment of $X, receipt of which is hereby acknowledged, my client releases and forever discharges, etc. Don’t ask me to have the release signed before payment can be made but also to affirm that my client has already received payment in the release.

Subrogation

I hope all counsel recognize how difficult it can be to deal with subrogation liens.

Plaintiff’s counsel may agree with defense counsel that some medical expenses are not related to the claim. However, if the subrogated carrier has strong rights to enforce the lien and won’t agree to remove those charges from the lien or reduce the lien overall, the plaintiff is in a tough spot.

The same issue can arise if there is disputed liability and the subrogated carrier does not need to make a reduction for liability disputes. I spend a ridiculous amount of time trying to get a subrogated lien correct and reasonable, but it is not always possible.

Knowing the Difference Between My Client’s Position and What I Legitimately Think Can be Presented as an Item of Damage

When my client is deposed, my client may say that he never had high blood pressure before the crash, he was hit on the head in the crash, and that is when all of his high blood pressure problems started. I know that there is no medical doctor in the case that is going to testify it is more likely than not that my client’s high blood pressure is caused by the crash.

Even when I discuss this issue at length, my client is testifying under oath and some are very obstinate that they have to tell the truth, which means including claims or injuries I have explained we will not be able to present in court due to lack of medical foundation.

I do not enjoy that part of the deposition any more than the defense attorney.

Let’s All Talk About This

The benefit of an organization like this section, which brings together adversaries, is that I hope we all become more comfortable communicating with each other. Sometimes, thinking about a situation from your opponent’s point of view can make our jobs less confrontational.

This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.