An Injury Adjuster's Guide to Negotiating with Plaintiff Attorneys

Over the past twenty years, I have watched and listened to a lot of injury negotiations in both face-to-face and telephone settings. I’ve worked on both the plaintiff and defendant sides, so have myself used many of the attorney “tactics” to which I will refer. While rules in jurisdictions and injury-types often differ wildly, it is the behavior of the injury adjusters during negotiations that is a vital key to success (for preparing the injury file for settlement, please see my article, Tis the Season: Preparing Injury Settlements). Let us take a look at some very simple guidelines I encourage Claim Directors to instill in their personnel to bring about better outcomes. Bear in mind, that acting ethically and in good faith should always be your sustained and unbreachable approach. 

Preparation Leads to Confidence, Leads to Power

Know your file; it’s as simple as that. At the same time, refuse to be drawn into cold calls from attorneys seeking to negotiate a claim. I’ve seen far too many injury adjusters over the years take calls, scan through a file, increase an offer and later discover they: (1) went too high; (2) breached the policy limits; (3) missed a coverage issue; (4) the plaintiff had no case or failed to properly present one. The best way to avoid these problems is to avoid talking about a file until you’ve had sufficient time to review it properly. Confidence and power often mean telling an attorney you’ll call him back in half an hour so that you can fully re-familiarize yourself with the file.

Know Your Venue

Know which of your venues are conservative or liberal, i.e. do the courts give out small or large settlements. You can be certain the attorney knows! They’ll spend a lot of time telling you if it’s a high-paying venue.

There are also other things to review. Court backlogs, whether particular firms demand too much every time, whether particular attorneys rush to litigation or never take that route, whether police or accident reports are readily available or not in a given venue. Many items that can lead to success are often not tangible or contained in your file.

Never Horse Trade

“Look, I came down from $200k to $150k so you have to up your offer of $25k”, is the line that will get fired at you. I always encourage injury adjusters to answer something along the lines of, “My $25k offer is far closer to the true value of this claim than $200k or even $150k, so until you make a more realistic demand, $25k is all I will be offering”. Don’t disempower yourself or weaken your position; attorneys will always try to draw you out.

By throwing out big numbers and seeming to make large reductions, they are attempting to lull you into making big increases in offers. This is a simple trick of human interaction: research behind the Power of Reciprocity reveals we reciprocate disproportionately to the initial action. Don’t fall for it – never horse trade! Only increase an offer when there is clear reason to do so.

Never Disempower Yourself

It drives me crazy when I hear injury adjusters saying, “Let me go back to my manager and see if they want to…” You are simply communicating that you are an amateur who requires permission to go any further, that you do not have settlement authority and, indeed, have just reached your limit. Why would any injury adjuster willingly disempower themselves like this? Why train the attorneys to demand too much, to uncover your settlement limits or go around you directly to your manager?

The best reaction is to indicate that you may have missed something and want to take another look at the file.

Rattle Their Cage

All too often you’ll feel the plaintiff attorney has the upper hand. And why not; your insured is liable, there were injuries, and everything is causally connected. But that does not mean you simply lie there and take a beating. At all times, you should be looking for opportunities to take a little wind out of the plaintiff attorney’s sails to ensure you arrive at a fair settlement rather than overpaying.

The most obvious examples are contributory negligence and a failure to mitigate their own loss or extent of injury. With respect to the injuries alleged to have been sustained, mechanism of injury, treatment received and treatment gaps. If the vehicle damage looks minor, harp on that. If criminal backgrounds or long claim histories are evident, harp on the poor credibility issues faced by the plaintiff attorney. Never be afraid to show them they have built their case on a foundation of sand. Do it in a nice, relaxed, calm and confident way; demonstrate your years of experience.

 

Take a Look at the Witnesses

Are there any? Were they interviewed and what did they say? If the plaintiff attorney alludes to a witness you didn’t know about, do not swallow it. You don’t care what he says they said. You want access to that witness and the opportunity to interview them yourself.

If they are related to the injured plaintiff, you can clearly indicate you will take what they say with a grain of salt since they can hardly be viewed as independent and unbiased. As with all parties to any incident, run a background check on the witnesses too; you might discover a little leverage (claims history, criminal history, etc.)

 

The Time of Year

As I wrote in my article “Tis the Season - Preparing Injury Settlements,” if your injury teams do not treat October 1st to December 31st as prime injury settlement season, you are doomed to the failure of large backlogs, increased litigation, increased costs, and the need to hire more litigation handlers and attorneys.

Everybody likes getting money for Christmas. Closed files are happy files. Nobody wants to litigate a file that should have settled. Gear your teams up from the end of July to start pushing for demand packs from attorneys on claims that need to settle.

Every Offer Gets a Reply – Draw Them into Discussions

I learned this trick from a wonderful colleague I worked with in Ireland some years ago. His entire approach was to avoid endless phone tag and simply put a qualified offer in writing to the other side. Sometimes it would be an attractive offer to get them excited; other times, it would be a borderline insult to the collective intelligence of all mankind. But the aim was always the same; whether an attractive or insulting offer, the other side will always pick up the phone to let you know precisely what they think. Then you’ve got them! “So, what are you saying the case is actually worth? We know it’s not the amount you sought in your demand letter, so give me some sort of realistic number to think about”. Throw a line or two like this at them and get them to start talking. If they refuse, they cannot accuse you of delay later!

The Threat of Litigation

“If you’re going to litigate, litigate – I have lots of other files here that want to settle.” This, or some version of it, is my most frequent response to the threat of litigation when the attorney is demanding an unreasonable settlement amount. I’ll also point out any added delay the litigation will lead to. Occasionally, if the plaintiff attorney is simply difficult on a number of files and demanding way too much, I have replied with: “If this file goes to litigation I’ll still be the one handling it”. The point to the plaintiff attorney is clear; they cannot get around me by filing suit and having the file transferred to a different negotiator. Twice in my career with really atrocious attorneys I have threatened to have every file from their law firm transferred into my name – they became far more reasonable within a matter of seconds.

Use the Problem of Auditors and State Insurance Commissions

Different injury adjusters overcome their discomfort and fears in different ways. I like to get adjusters to push the bad guy role onto someone else. This keeps the relationship with the plaintiff on a polite setting and allows the adjuster to feel they are not putting themselves in the firing line.

“Look, I’m not going to simply jump from $12k to $40k without anything in my file to justify doing so. I have auditors and state commissioners who can review this file long after I’ve forgotten what it was all about.”

 

That’s Not Reflected in My File

It is for the plaintiff to make their case and to get the proof to you for your file. Too many injury adjusters see that there was an accident, it was the fault of their insured, and assume absolutely everything must therefore flow from that and be paid for. This is not always true!

Over the years, I’ve dealt with a lot of attorneys who leave their files gathering dust, get harassed by their clients, then get on the phone and start harassing the adjusters. Stand your ground. Remain polite and professional. If you settle for $100K on a file that only shows justification for a $60K payout, you’re going to have a tough conversation with me as your Director. Don’t make foolish decisions, fall afoul of audits, or payout on your insured’s policy without clearly documented justification.

This Accident Happened Two Years Ago!

Length of time is often thrown at you e.g. this case has been ongoing for x-number of years. The best response I have found to this is to point out to the attorney that I have been writing to him once per month for over a year and never received any response. Not sounding like I take it too seriously and am already brushing it aside communicates professionalism on my part while politely telling him I will not swallow the bait. If there has been a delay on my end due to workload, I simply point out that I have been waiting x-number of years for his client to finish treatment with their doctors. A two or three-week delay is hardly going to break the bank in the overall scheme of things. Therefore, I am communicating I will not take the accusation seriously or let it sway me.

My Client’s Vehicle was Declared a Total Loss

The implication or ploy here is that the incident must have been serious and therefore their client is entitled to an enormous fortune.

It never ceases to amaze me how injury adjusters fail to look back at the vehicle photos regularly. What if it was a 2004 vehicle that would have been declared a total loss simply by slamming the door?! What if there was unrelated prior damage and the estimate was written to cover everything? Most of the repair estimate is labor charges; when you strip them out, you often find $2k of damage or less. Make these points to the attorney if applicable.

The Police Report Clearly Sides with My Client

“So, the police officer was there at the moment of impact and actually witnessed the accident taking place?” Ninety-nine times out of one hundred, an answer like this puts an end to that tactic. Once every two or three years, you will come across an officer who was right there when the incident occurred, but it is rare.

Also, it often transpires that the person who put in the call and who starts shouting the loudest is the one the officer sides with. Unfortunately, another trend presents itself regularly too: if your insured doesn’t speak English, the other driver gets all the airtime and print space in the police report.

The point here is not to be afraid to dismiss the police report from your considerations. I’ve gone onto Google Maps to discover police reports incorrectly drawn, road markings incorrect, signs missing or added to the reports. In short, reports can carry little or zero credibility.

Your insured being cited/getting a ticket is not necessarily a reason to start writing big checks either.

Revoke an Offer

Never be afraid to revoke an offer whether by phone or in writing. This can work for you in two ways. One, the attorney will engage with you if he has been ignoring all requests for a prolonged period of time. They see an offer and ignore it. Suddenly there is a revocation of the offer and they immediately become curious or concerned; the insurance carrier must know something they don’t!

The second way in which this benefits you is if you truly and genuinely discover something alarming after you make an offer. It might be a coverage issue, a policy issue, something a witness tells you, something in the medical records. You might realize an offer was justified but you obtained information indicating the offer was too high. Once every ten years, you mistype and place a zero too many in an offer!

The Louder They Shout, The Slower You Go

Let’s not be naive. We all know there are some attorneys whose style is to be verbally abusive, condescending to female adjusters, threatening in their approach – and more. Some will regale you with how many years they’ve been in practice, all the cases they’ve won, the judges they know. None of this really has anything to do with the injury file at hand. So, get suspicious. Never allow anyone to blind you with smoke and mirrors or press you into a decision through threats and intimidation. The louder they shout, the more abusive they are, and the more they try to rush you, the slower you should go.

Walk Away/End the Call

I started out with twelve years negotiating injury claims face-to-face with plaintiff attorneys. Imagine how much fun that was! I very quickly discovered one of the most valuable rules an injury adjuster can adopt; just because you agree to meet to settle a claim does not mean that you must settle it.

“Well, our orthopedic consultant says the fracture extended into the articular surface of the joint which will lead to arthritis in the next 15 years. You’ll have to increase your offer from $12,500 to at least $60,000 before I’ll recommend it to my client.”

Oh no I don’t! If it’s not reflected in my file, then too bad. Give me a copy of that report. Let me get my own specialist to examine your client and review your report. Let me review my reserves and revisit the valuation in light of this news. Stay calm. Stay confident. Smile. Be firm.

The same goes for sudden surprise witnesses, engineering reports, insights into the character of your insured – anything you consider “news” that throws your file up in the air is an ambush. These are simply ploys – a tactic to get you to behave as the plaintiff attorney wishes.

Always Allow Them to Save Face

Having worked on both sides of the fence – plaintiff and defendant – I can reply with something like, “Oh trust me, I know what it’s like to have a difficult client who keeps forcing you to demand too much. But you’re duty-bound to communicate offers to them. Let me know what they say.”

I’ve used that line several times per year for the last 20 years. There is simply no point going on a personal attack, even if the plaintiff attorney does so. I’ll always express empathy to them for the awkward position they find themselves in even though 99% of the time that’s simply not the case. But why do any different? It’s not a sign of weakness. As the old saying goes, you’ll trap far more flies with a drop of honey than a gallon of gall. In the future, you’ll need to have more conversations with this attorney, deal with them on other files, etc. Don’t become adversarial just because the relationship is cast in that light by your respective legal positions.

To wrap up, I hope you enjoy injury negotiations as much as I do. Without meaning to sound callous, it’s all just a game. Believe me; I have seen injuries and circumstances that have made me cry over the years. The actual negotiation, the sparring, the dueling with the plaintiff attorney is hugely enjoyable and fascinating if you allow yourself to view it that way. Recognize the tricks they pull; how they try to shout, bluff and bluster you into decisions that favor them. How they throw “Attorney” around as a power-play or list off the judges they know and the cases they’ve won. Focus on that one file right there in front of you, not all the other files the attorney is trying to scare you with. For better outcomes, get your approach play straight, remain calm and professional, and follow the items we have explored here.

Colm McCormack is a Senior Leader and management author. He is passionate about taking organizations to the next level.