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Mediation Basics – Preparing the Client

March 28, 2023 No Comments

By: Rick Morefield Failing to fully prepare a client for mediation is one of the most common errors I see newer lawyers make in mediation. Newer lawyers know that it is important to educate the mediator about the case, but they sometimes miss the importance of educating the client not only about the case, but also about what to expect in mediation. Mediation is a process. It requires the client to exercise patience. It requires the client to have faith in the lawyer, the mediator, and in the mediation process. But, a client cannot be expected to trust the process if the client doesn’t know what to expect. Even clients who have been through mediation in other cases need a quick refresher that focuses on the unique aspects of the current case. Below is a quick list of topics to cover. 1. Explain what will happen in the opening session. Typically, the mediator explains the process, but it helps if the client has heard an overview from their lawyer first. This should include information about anything unique to expect from the mediator. It is becoming more common for parties to skip an opening statement. If opening statements will be given, make sure the client knows that the opponent may make statements or arguments that offend them. If your client is forewarned, your client will be more likely to keep control of their emotions. It is equally important to explain to your client that your opening statement is advocacy and they should take it with a grain of salt. 2. Explain that the initial offers and demands at mediation will usually be unacceptable to both parties. Defendants typically start with ocean bottom offers; plaintiffs tend to make sky-high demands. Remind your client this is a process and to let the process play out. If the client is surprised, their emotions may derail the mediation. 3. Have a frank discussion with your client about the strengths and weaknesses of their case. No case is perfect. Mediators will tend to highlight case weaknesses during caucus sessions. Clients are better able to trust the mediation process if they have already heard about the weaknesses in their case from their own attorney. If they hear about weaknesses for the first time from the mediator, they may tend to lose trust in their lawyer or in the mediator. 4. Warn the client that the mediator will ask hard questions in the caucus sessions. It’s the mediator’s job to help each party see the weaknesses in their case. Remind your client that the mediator is doing the same thing in the other room. Encourage your client to listen to the mediator and carefully evaluate what they hear. The mediator wants a good outcome for the parties. 5. Remind your client to keep a poker face when the mediator is present. When a satisfactory offer or demand is made, the client should not look too happy. More negotiating may lead to a better offer or demand. When an offer or demand is disappointing, the client should avoid arguing with the mediator. You should discuss with your client when or if they should discuss the case with the mediator and when they should defer to you. 6. Provide your client with a detailed understanding of the costs and the risks of trial so your client can have context to evaluate the reasonableness of settlement offers or demands. Make sure your client is aware of any additional costs that may be incurred if the case proceeds to trial. It is helpful to prepare a spreadsheet for clients that shows what they would take home from a settlement after deducting fees and expenses. The spreadsheet should also show their “take home” with different potential outcomes at trial. For defendants, the spreadsheet should show the “all in” cost of a settlement compared to the cost of different outcomes at trial. Without this information, your client may not understand the real impact of a settlement on their life or business. 7. Finally, ask your client what their needs are. Does your client want to go to trial? Does your client consider trial unthinkable? The goal of mediation is to maximize the benefit to your client. Knowing your client’s desires and needs will help you provide better advice at mediation.

Mediation: Taking the Uncertainty Away from Trial and Reaching an Agreed Outcome

February 27, 2023 No Comments

Are you involved in a lawsuit and facing the uncertainty of a trial? Are you looking for a way to avoid that uncertainty and reach an agreed outcome? If so, mediation may be the answer. Mediator and trial attorney Rick Morefield had a recent experience that demonstrates how the outcome of a trial depends as much on the jurors selected to decide the case as it does on the quality of the case or the skill of the lawyers. ABOTA and ABA Offer Trial Academy for Less Experienced Lawyers: Lessons Learned from a Product Liability Case In September 2022, the American Board of Trial Attorneys (ABOTA) and the American Bar Association (ABA) Tort Trial and Insurance Practice Section offered a one-week Trial Academy to provide training for less experienced trial lawyers. Mediator and trial lawyer Rick Morefield was one of the instructors and mentors. During the week, the students got to practice and receive training on jury selection, opening statements, direct examination, cross examination, and closing argument. At the end of the Trial Academy, the students conducted a full trial in front of a jury picked from the normal state court jury pool in Reno, Nevada. This year’s trial was a product liability case involving a young boy who allegedly suffered a traumatic brain injury that was caused by a defective roller coaster. The Trial Academy had enough jurors available that it was able to have the entire jury pool observe the trial, but then it split the jury pool into two separate juries for deliberations. The two juries deliberated in separate rooms while the students and instructors watched the deliberations on a video feed. One group of jurors rendered a verdict for the plaintiff and awarded $5 million in damages. The other group of jurors rendered a verdict for the defendant. It is shocking that two juries who heard the same facts and arguments presented by the same lawyers at the same time reached such wildly different verdicts. Although this was an unexpected outcome, it was a valuable lesson for both the students and the instructors. The same thing can happen in a real trial. Regardless of the skill of the lawyers and the justice of the cause, trial lawyers and their clients are ultimately at the mercy of their jury. The Importance of Mediation This is why mediation is so important. A skilled mediator can help all parties see what could go wrong at trial and avoid the uncertainty of a jury verdict. Mediation allows the parties to bypass the uncertainty of trial and the unpredictable nature of juries. Mediation allows the parties to control the outcome of their case by reaching a settlement with the assistance of a skilled mediator. Save Time, Money and Relationships While mediation does not guarantee that an agreement will be reached, it does provide an excellent opportunity for parties to have honest discussions with a neutral mediator about the strengths and weaknesses of their case. This can save time, money and stress associated with trial. Mediation can also help to preserve relationships between people who will have to do business with each other in the future. Avoid Lengthy Trials and High Legal Fees Mediation gives parties the chance to find a resolution that works for both sides and that takes less time and money to achieve. By reaching an agreement through mediation, parties are able to minimize costly court fees, expert witness fees, attorneys fees, and the time associated with a lengthy trial and possibly an appeal. MSB Law: Your Trusted Partner in Mediation Mediation is a great alternative to trial for resolving legal disputes. MSB Law provides highly experienced Overland Park and Kansas City mediation lawyers for many different types of claims and disputes. Rick Morefield heads the firm’s mediation services practice and regularly serves as a mediator in Overland Park, Kansas City and throughout Kansas and Missouri. If you need a mediator, call us at (913) 839-2808 to get on Rick’s schedule!

What To Expect When Filing an Insurance Claim

October 27, 2022 No Comments

The process of obtaining the money you are entitled to from your insurance company can be lengthy and frustrating. Additional complications arise when dealing with third parties, such as insurance companies because they do not always have your best interest at heart. To ensure that you receive compensation for your injuries, you should contact one of our personal injury attorneys who will advocate on your behalf. Here is what you can expect when filing a personal injury insurance claim: Identify the Type of Insurance Claim The first step is to determine what type of claim you wish to file. At Morefield, Speicher & Bachman, we deal with various types of claims related to personal injuries. Here are some of the main ones we assist with: Car, Truck, and Motorcycle Injuries Defective Products Premises Liability Injuries Uninsured and Underinsured Motorist Claims After determining the type of claim you have, it is time to file it. When to File Your Claim You should file an insurance claim as soon as possible, especially if anyone was injured or you aren’t sure who is at fault. Time is of the essence. Different time limits known as statutes of limitation apply to different types of claims. The deadlines are different in each state. Regardless of the deadline, a good rule of thumb is to make your claim as soon as possible. In the event that you wait to file, it becomes much more likely that your insurer may deny your claim. Dos and Don’ts Your first step should be to contact a personal injury lawyer. There are times when your insurance company will tell you that you don’t need legal counsel. You should be wary of that advice because they will always act in their own best interests instead of yours. They may hope that you will resolve your claim for less than it is worth if you do not have an experienced lawyer on your side. Early on, it is imperative to have your lawyer contact all parties involved, gather evidence, be familiar with the statute of limitations, and make sure you have filed a police report (if appropriate). It is important to note that no matter how much you believe that you are at fault, you should not admit fault to your insurer. Ultimately, the parties’ relative fault is a factual and legal issue and it will be resolved through negotiation by your lawyer with the insurance company or it will be resolved at trial. Statements you make to the insurance company can be used against you at trial and can result in a jury assigning more fault to you than you deserve based on the facts of the case. Our Personal Injury Lawyers Can Help It is best to consult with an insurance claims lawyer as soon as possible. There are adjusters and corporate lawyers working around the clock to undermine your claim. Insurance companies will work tirelessly to save themselves money. Do not let them make you a victim a second time by underpaying your claim. For a free, confidential case evaluation, contact Morefield, Speicher & Bachman at (913)-839-2808.

The Best Lawyers in America 2023

August 31, 2022 No Comments

The Best Lawyers in America has released the results of its 2023 survey, with MSB Attorneys Rick Morefield and Sue Becker both earning recognition! Rick Morefield was recognized in The Best Lawyers in America® 2023 for work in: Personal Injury Litigation – Plaintiffs Sue Becker Recognized in Best Lawyers: Ones to Watch in America 2023 for work in: Personal Injury Litigation – Plaintiffs Selection is based on a peer-review survey, in which leading lawyers evaluate each other’s legal abilities in their specialties. The 2023 edition is based on more than 9.4 million evaluations and recognizes just over 67,000 attorneys in 147 practice areas. Rick Morefield For over 35 years, Rick Morefield has guided his clients through all phases of litigation including trials, mediation, and appeals. He practices primarily in the areas of personal injury, wrongful death, traumatic brain injury, and business litigation. Rick knew he wanted to be a trial lawyer after joining the debate team in high school. He loves the challenge of helping his clients put their best foot forward in the courtroom, in mediation, and in negotiations with other parties. Learn more about Rick. Sue Becker Sue Becker graduated from the University of Missouri-Kansas City School of Law in 2012. In her own words, “My passion is to help people by offering them hope and resolution during difficult situations. I believe that each of us has something to offer the world and so we should do our best to use our talents and skills to assist those who cross our path. Practical and compassionate guidance is what everyone needs at some point in life, so I strive to offer that to my clients. Often legal issues become personal issues that greatly affect the health and well-being of everyone involved in a dispute which is why we work hard to bring a positive resolution as quickly as possible.” Learn more about Sue. The peer-reviewed listings of Best Lawyers are now published in over 70 countries, and their influence in the international legal community has grown significantly. Since it was first published in 1983, Best Lawyers® has gained worldwide recognition as the definitive guide to legal achievement.

Pros and Cons of Zoom Mediation

June 7, 2022 No Comments

During the Coronavirus pandemic, many people turned to Zoom and other virtual platforms for mediations. Zoom and other virtual platforms provided a social distancing alternative to traditional face-to-face mediations. When considering whether or not to mediate using Zoom or another virtual platform, there are a few pros and cons to consider. Advantages of Zoom/Virtual Mediation Lower Cost Virtual mediation can be substantially less expensive than in-person. The biggest reason for this is the lack of travel time and expenses for the mediator and parties. What might have involved a day of travel or even an overnight hotel stay for a face-to-face mediation is not necessary when mediating virtually. This reduces costs for parties, their attorneys, and the mediator because they will not need to travel to attend the mediation session. This lower cost can also make mediation financially feasible in smaller cases. Eliminates Geographical Barriers Zoom mediations offer much more flexibility for parties spread across geographical locations. In many cases, time devoted to the mediation process can be reduced substantially. With virtual mediation, scheduling becomes easier. Zoom mediation can eliminate geographical barriers and physical barriers for those who are severely disabled, in poor health, or who reside a great distance from the mediator. Security and Privacy Virtual platforms for mediation now have security and privacy capabilities such as Zoom’s waiting room feature which gives the mediator the ability to have control over when the parties join the mediation. Zoom allows the parties to enable end-to-end encryption which secures the participants’ communications with cryptographic keys that are only known to the devices of those participants. Keeping the meeting’s private keys secure ensures that unwanted third parties will be able to access the meeting. However, enabling end-to-end encryption can disable certain Zoom features that are useful in mediation such as breakout rooms. The parties and the mediator have the ability to select the security and convenience features that work best for their particular mediation. Breakout rooms in Zoom allow the mediator to meet privately with each party and their attorney. The mediator can put each party in a private breakout room and have independent discussions in the same way that the mediator would use separate conference rooms in an office. Disadvantages of Zoom/Virtual Mediation While the following disadvantages of Zoom mediation may not be present in every situation, there are some potential downsides to conducting mediation virtually. Less Non-Verbal Communication Meeting with people on a screen has some major differences from meeting face-to-face. Virtual mediation may deprive parties of the opportunity to read non-verbal cues and body language. When the mediator has never met the parties or lawyers in person, they must work differently to establish the same rapport. Having video mode on is certainly more beneficial than strictly audio calls, but it still may be difficult to observe eye contact, body language, and other forms of non-verbal communication. People who are unfamiliar with Zoom or other such platforms might feel that they cannot establish the same level of connection with the mediator or the other side, which may hurt the chances for a successful mediation. While remote mediation does change some aspects of human interaction, most people do find that feelings of discomfort dissipate with time and genuine connections are still attainable. We have found that Zoom mediations can be very effective. Less Commitment The lower cost and greater convenience of virtual mediation is one of its greatest advantages. But, this advantage is also one of the biggest disadvantages of virtual mediation. Because virtual mediation is less expensive and more convenient than in-person mediation, the parties can be less committed to the mediation process in some cases. There is a legitimate concern that one or all parties will not take the process as seriously as if they had to dedicate travel time and expenses. When a party sends a representative across town, or books a flight on an airplane, they’re more likely to be serious about getting something accomplished. For mediation to work, the parties must be committed to the process. Although this disadvantage is real, we have found that the mediator and the parties can work together in advance of the mediation to make sure everyone is committed. When the parties are mediating by Zoom, it is important for the parties and the mediator to frankly discuss the issue of commitment. Technical Issues Technical issues can cause distractions and impact the success of the mediation. If a party’s internet connection is not strong, or if their laptop or computer is malfunctioning, it can interrupt the flow of the mediation and this can impact the parties’ ability to get the most out of the mediation. It is the mediator’s responsibility to work with the parties in advance to be sure that the parties have the technology to participate in the mediation in a meaningful way. In Conclusion… Virtual mediation on platforms like Zoom developed rapidly out of necessity, but it is here to stay. Although there can be drawbacks to virtual mediation, there is no reason that virtual mediations cannot be successful if the parties plan for and consider the advantages and limitations of the technology. At Morefield Speicher Bachman, LC, Rick Morefield is prepared to serve as a mediator in person or over Zoom. He has had experience and success with both virtual and in-person mediations and is comfortable assisting parties who have never mediated over Zoom. All of the lawyers at Morefield Speicher Bachman, LC are prepared to mediate for their clients in both virtual and in-person settings. Your preferences are important to us and we will continue to offer to each and every one of our clients the opportunity to meet with us–on your terms. We are here for you. Contact us today at (913) 839 2808 to discuss our mediation services.

Experience Matters—The Importance of Choosing a Seasoned Lawyer

May 31, 2022 No Comments

Generally speaking, all attorneys graduate law school with a similar “legal” education. However, in practice, each attorney holds a very different hand of cards based on their legal experience, life experience, and continued education. Experience matters. Unlike many professions, lawyers are not required to declare a specialty. However, not all lawyers are equally qualified to handle all legal issues. What a lawyer learns in law school is a fraction of what the lawyer needs to know to be effective in the courtroom, to be effective in negotiating settlements, and to be effective in analyzing different legal issues. A lawyer who tries to practice in too many areas of the law may end up being a “jack of all trades and master of none.” At Morefield Speicher Bachman, LC, our lawyers focus their legal practices in the legal areas where they have the experience and ability to excel. Rick Morefield focuses his practice on serious injury and wrongful death litigation, business litigation, and mediation services. Andrew Speicher focuses his practice on small business law. Stan Bachman focuses his practice on construction law and business litigation. Our attorneys focus on a few areas of law because that allows them to maximize their effectiveness to their clients. Without experience, and the right kind of experience, the justice system can be incredibly difficult to navigate. If you put your trust in an inexperienced attorney or one who tries to do too many things, it could end up backfiring, leaving you worse off than before you sought counsel. In order to get a fair and just outcome for your case, you need a lawyer who has the respect of the lawyers on the other side. If the other side knows that your lawyer is inexperienced, it will be less likely that you will get the outcome you deserve. You need a lawyer with experience, not one with a large advertising budget. Sometimes, even when you have a skilled and experienced lawyer, the other side will still not offer a fair settlement. When that happens, you need a lawyer who has experience going to trial. There are many complexities and nuances involved in a trial and an inexperienced lawyer can jeopardize your ability to get justice. Although hiring a skilled, experienced lawyer doesn’t guarantee you will win at trial, you need a skilled, experienced trial lawyer if you want to maximize your chances of winning. Your lawyer must know how to pick a jury, how to craft jury instructions, how to persuade a judge and jury, and how to use the complexities of the rules of evidence to get your evidence in front of the jury. Modern trials also require your lawyers to have a strong understanding of the technology necessary to present evidence persuasively to a jury. The lawyers at MSB Law have those skills. One of our lawyers has been invited to teach other lawyers how to try cases at the TIPS/ABOTA National Trial Academy held annually at the National Judicial College in Reno, Nevada. Building a Strong Case on Your Behalf To build the strongest possible case on your behalf, you’ll need a lawyer who has the skills and resources necessary to investigate the situation, gather critical evidence, examine records, and review contracts. For example, a lawyer hired to help a client pursue a personal injury claim will need to be aware of all aspects of the injury-related incident. If the claim isn’t handled properly, you could lose out on compensation you desperately need for medical bills, lost wages, and recovery. Your lawyer will need to understand how to persuasively prove the other party is at fault and the amount of your damages. Your lawyer will also need to understand liability insurance, health insurance, liens from insurers and medical providers, and other issues that can have an enormous impact on how much money you are able to recover. An experienced lawyer will collect all possible evidence to build a strong case that puts you in a position of power to negotiate with insurance companies and the other side’s lawyers. Making the Most of Your Time and Money Expertise in a specific area of law is much more valuable than mediocrity in many different areas. Sometimes a well-meaning attorney will step outside his or her areas of expertise in the hope of landing a new client. The attorney’s inexperience can cost a client both time and money. Muddling through an unfamiliar system of processes can lead to missed deadlines and court dates, the filing of incorrect documents, and potentially costly legal proceedings. An experienced attorney will make the most of your time and money as they will know the correct procedures to accomplish your legal goals. We often accept referrals from other attorneys who are skilled in different areas of law. We also refer clients to other skilled attorneys when a client needs help that is outside our areas of expertise. What is best for the client always comes first. Negotiating a Fair Settlement or Taking Your Case to Trial The majority of cases are settled long before they ever enter a courtroom. Even so, you should hire an attorney with experience negotiating fair settlements and winning court cases. Not all cases can be settled, and when this option is not available, you need someone who knows how to fight. In some cases you will be dealing with serious physical, emotional, and financial hardships and the last thing you want to worry about is your attorney struggling during the trial process. However, knowing your lawyer has extensive trial experience can help you feel comfortable knowing they fully comprehend the process. The insurance companies and other lawyers know which lawyers are willing and able to try a case when necessary. Our lawyers have experience negotiating settlements and trying cases in the courtroom. Knowing to Expect the Unexpected When it comes to succeeding in jury trials, it’s important for attorneys to have the skill and experience needed to forecast how people are going to view