As a workers’ compensation defense attorney, one of things that fascinates me the most is how things can get done with the help of the proverbial enemy of defendants – the “applicant’s attorney.”
Though we are legally rivals by nature of the case, we eventually bring each of our clients to that common fence of settlement, whether it’s a simple agreement to go off-calendar, or a culminating settlement of a case.
At the end of the day, most applicants and defense attorneys share the common interest of getting things done and moving cases forward. Even most judges feel the same way. All of us can relate to the neverending list of other issues awaiting us in our inboxes, tasks, etc.
It’s important for defense attorneys to understand that applicants attorneys (AAs) are always looking for quick dispositions and settlements because their business models are not based upon the billable hour. Instead, they rely on moving cases to Compromise and Release so they can get the almighty OACR and get paid.
If AAs don’t settle, then they don’t get paid. So how are they going to afford their legal assistants, associates, salaries, operating costs, and everyday rising prices in our local grocery stores?
They need that settlement! So let’s use this knowledge to our advantage.
Here are a few tips and reminders defendants can use to get quick, and sometimes even unexpected settlements.
1) Always Bring Up Settlement
In a letter to the AA, I always write at the end of the letter that AA should let me know if there’s any interest to settle or if they have a settlement demand for our consideration. I do this even if there are pending issues to be resolved, because you never know if applicant or AA is looking to settle.
So don’t hesitate to ask. Sometimes you will be surprised to receive that out of the blue settlement demand that appears reasonable and is worth discussing with the adjuster.
If you don’t get any response, then it also becomes a good indication that AA is disinterested, and perhaps a small offer on our part can get AA interested and get the ball rolling.
If our letters contain the magic word “settlement,” then it serves as a constant reminder to AA that settlement is a possibility.
2) End of Year Settlements
I have noticed that I’ve had more settlements in the months of November, December and January. I think the reason for that is that AA firms would like to settle their cases before the year ends, and they are also trying to rake in as many attorney fees as possible to hit their performance and financial targets for the year. Because at the end of the day, AA firms are businesses, and a business needs to make some monetary sense. Furthermore, the applicants themselves could also use that settlement money as a holiday gift.
So this is the best time to reach out and call up the applicant’s attorney if you have a case that’s on the brink of settlement. This is also great information to know, so that you can prepare for next year’s “holiday settlements”.
3) Settlement before Depo’s and QME’s
Lastly, it is always good to bring up settlement prior to a deposition or QME evaluation. In my experience, I like bringing up settlement 2 to 3 weeks before the depo or evaluation, so that it gives the AA time to consult with the applicant on settlement, and it also gives me time to discuss with the client for settlement authority. In addition, having that lead time allows you to cancel the QME evaluation without any cancellation penalties, which is usually a week before the evaluation, if ever you get into a settlement.
In my experience, clients are very happy with settlements prior to depos or evaluations, because they’ve closed the case, and avoided discovery costs.
CONCLUSION
On that note, go forth, communicate with your applicants attorneys, and settle. Because as we all know, the best type of file is a closed file.
Arc N. Tolentino is an associate attorney for Bradford and Barthel’s Fresno office. If you have questions about workers’ compensation issues, please feel free to contact him at atolentino@bradfordbarthel.com.
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