Bexar County courts require mediation in almost all cases prior to trial. Mediation is an effort to settle a case through the use of a third party neutral whom tries to help find a resolution. Brian Steward is one of San Antonio’s finest mediators and he answers questions.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill law firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real and these are the cases we handle on a day to day basis.
Justin Hill: All right, welcome to this episode of Hill Law Firm Cases. We’re here talking with Brian Steward. Brian Steward is a San Antonio personal injury lawyer. He’s been doing it a little bit longer than I have. He’s got a few more gray hairs than I have. He also has recently started mediating. I wanted to get him on, talk a little bit about what is mediation. This is really a podcast for clients and people that are trying to learn about the process.
I want to start first is, what did you think about mediation and what was your way of explaining it to your clients prior to going through mediation training and becoming a professional mediator?
Brian Steward: Sure. Mediation is an interesting process. It began in Bexar County in 1992 when Judge Charlie Gonzalez says, “We’re going to start employing mediation.” I had absolutely no idea what it meant and I’ve come to love it. Mediation to me as a lawyer and to my clients means, we have an opportunity to sit down with a third party, an impartial third party, listen to the evidence, listen to our case and try to resolve it. The mediator is not going to fix your case. He’s not going to decide your case. The mediator is going to listen to your case and make some suggestions.
The mediator is also going to go into the other room where the defendants are, listen to them, and also make suggestions to them. By that, I mean, the mediator has more information than even your lawyer does during that mediation process. If you trust the process and you trust that mediator, sometimes you’ll be able to get cases resolved. This is an opportunity.
Mediation is an opportunity for plaintiffs, normal people to get the benefit of the mediator’s knowledge on this case in the context of these county cases going on in this county in trials that are being tried currently on issues that will face you in juries that will decide your case.
Justin Hill: I’ll just be candid. I have a problem with mediation, in that, I feel too often than not the other side is showing up trying to buy a case for cheap or settle a case for cheap as opposed to evaluating risk and actually trying to resolve the case. I always tell my clients, “Look, our goal of mediation–” My question for you is going to be, what has your goal of mediation been for your own clients?
Because what I tell my clients, “My goal in mediation is, let’s figure out how much they have brought today to settle your claim and let’s get them to offer the maximum amount that they have to settle your claim. Then you can make an informed decision on whether or not that is sufficient.”
That’s always been my goal. That’s always been my plan. I’ve never seen mediation as the sole goal of settling the case because I don’t want to lean on my client or tell them, “Hey, you need to settle the case.” I want to know how much did they bring to settle your case so the client can then make a decision.
Has that been what you’ve told your clients in the past or how have you, as a practicing lawyer, gone about explaining the goal to your clients?
Brian: There are two things that you bring up that are important. The first issue and the first focus is, I want to make sure, as the lawyer for the injured party, that I get the most possible money on the table during this mediation. Sometimes you’ll realize fairly soon that that’s not going to happen, but that has to be the ultimate goal.
The second goal, and it’s happening more and more, but the second goal is, is there something that I’m missing? Is there additional information out there that might enhance my case? That’s one of the things where defendants over the years have used mediation, as you said, as a discovery tool, meaning they want to go in and see if they can push buttons and get someone to make a decision based in part on desperation.
I think what good lawyers do in mediation when they’re looking at this second issue is they use it to their advantage. As much as you look at mediation as a chance to get this thing settled, fantastic lawyers that I’ve worked with use this as an opportunity to really look at the defendant. I think we lose focus and we lose how important that is. We go into mediation and our clients are looking for an evaluation of our damages. Sometimes we don’t look at the evaluation of the defenses and the evaluation of the corporate representative or the poor schlub that’s going to sit there during this case and defend this case. Sometimes that mediation is the opportunity for you to glean that information. Who’s going to sit there? Who’s going to make the decisions and who’s going to be in the hot seat?
Justin Hill: I want to talk to you a second from now about what your role is as a mediator, but I’ll tell you, I’ve had the worst and the best stories. I’ve had mediations where I’ve showed up and the other side has offered less money than it cost for the mediation. You see that more in car wreck situations, I think, than your non car wreck cases. What is your advice, based on your gray hair as a practicing personal injury lawyer, for people like me who still are a little piss and vinegar, a little bit about mediation, in how to approach mediation from a reasonable perspective, as well as an advocacy perspective, knowing that a lot of people like myself have dealt with these situations where you’ve walked in and some car insurance company offers your client $250 to settle their case when they have $20,000 in medical bills?
Brian: In a former life, I was a defense lawyer and I handled car accident cases for some carriers. I can tell you that I, as a defense lawyer, had certain responsibilities to that carrier. I had to provide that carrier with certain information so that that carrier could set reserves, which means they could try to figure out what the value was based upon what I told them in their own experience and try to set aside enough money to get this case settled.
What does that mean? It means that I had to have enough information from you and your client. Whether it’s medical records, whether it’s police reports, whether it’s other information that’s going to help me evaluate this case or at least provide the decision-makers with the information so that they could do that. That was sort of a eureka moment when I turned and started doing plaintiff’s work again because part of me always felt like, “Why do I have to do the defense lawyer’s job? This person who’s sitting across from me, who’s sending me all this hate mail, who’s asking my client these questions in the deposition, they should know what they’re doing. They should know what this case is about and they should be able to evaluate it.” They don’t. You feel like they should, but they don’t.
Justin Hill: I think you’re letting defense lawyers off the hook and insurance companies. My situation, there was not a question of whether we had promptly and fully prepared the other side. They just showed up with a $250 offer. To be fair, the jury gave us $400,000 in that case after they offered us $250. There is some amount of obstruction in the mediation game as well. How do you break through that?
Brian: You break through that by preparing your cases to go to trial. When you’re presented with a situation that’s not going to resolve, you walk. There is nothing worse than being in mediations where people knowingly accept less money than the case is worth because of their own circumstance. As lawyers, we have to remember what our goals are, what our duties are. If you know that this offer is not appropriate, and you know that this defense lawyer, this system is trying to pay less than the case is worth, you have to be able and willing to walk that case to get the value that your client ultimately deserves, whether it’s from the second or third mediation or from a jury.
Justin Hill: I take a hard line personally that I don’t do multiple mediations. If you’re going to drag us around the first time and not be fair, I’m not even going to consider a second. If we’re close the first time and everybody is working and everybody is trying and there’s maybe a hiccup and hey, we didn’t have this information, then maybe I’ll consider it. When do you think it’s actually fruitful to have multiple mediations? When do you think everybody’s wasting their time and money?
Brian: I think the best first mediation is the first mediation where you have some basic and general information about the case and the damages. That’s the best possible time for a first mediation. You don’t necessarily need each and every potential fact witness deposed, or each healthcare provider trader deposed, but you can get at first mediation out of the way because invariably there’s been some pre-suit litigations and pre-suit exchanges. You’ve got information that the defense lawyer and the adjuster should have. You probably file the lawsuit to get it out of the dead or away from the desk of the adjuster. Now you have another set of eyes.
The second mediation has to take place, if you’re going to do one, within probably 45 days of the trial setting. By that I mean, you have the plaintiff who is designated experts, but more importantly, you have the defendant who is designated experts. Mediations where the defendant has not designated experts, it’s an interesting process, because you’re anticipating, you can do that in a lot of cases, but you’re anticipating what the defense lawyers and their experts are going to say.
Justin Hill: Or they’ll tell you, “My experts will say–” Which might end up not being true after they designate them.
Brian: The good lawyers also can take the, “My experts will say–“, and turn that into, “Oh, that’s good, because what’s the basis of them saying that?” So many lawyers today, so many defense lawyers today will parrot those words without any true basis for those comments and that evidence. Ultimately, good plaintiffs lawyers can cross a defense expert, a designated expert, and get some concessions where that defense lawyer when they’re talking to you, they’re never going to provide you with those concessions.
I have gone through third mediations. I’ve gone through third mediations where,- in Harris County specifically, a judge, as he was sitting on nine different challenges for experts said, “At 9:00 AM tomorrow, I’m going to tell you what my rulings are on these expert challenges.” These were expert challenges for both sides. I’m going to tell you what they are. I strongly suggest that tonight, when you go home, because we were in the fourth day of trial, when you go home, you all have a great dinner and then sit down and talk about this because this is the last best chance you’re going to have to settle this case. We settled that case.
Justin Hill: I’ve never had a judge order a mediation but I hear about it, but one of my mentors in our profession, he has instilled in me, and I buy into it, I believe it, that you’re never going to have a real productive mediation in a substantial case until all experts are deposed. In substantial cases I’ve taken- unless you’ve got an insurance limit that’s clearly in play or whatever. That’s the position I’ve taken, which ruffles a lot of defense feathers, because they want to be able to sit down and try to buy the case cheap, or settle the case cheap, whatever you want to call it, because they think that some of us don’t want to go to the expense of hiring experts, go to the expense of doing all this or spend all the time doing all that.
As a mediator, now that you’re a trained professional mediator as well as personal injury lawyer, now, what is your goal? When you’re an advocate and a plaintiff’s lawyer or defense where your goal is to basically alleviate risk for your client, get a good result for your client, find justice for your client and leave with a happy client, but as a mediator, now, what do you see your goal as? What do you want to achieve in a mediation?
Brian: My goal is to get that case resolved, this singular case resolved. Sometimes you’ll be in a situation where this case is associated with 20, 30, 100 other cases. It is hard to differentiate between those cases, but you have to because this case is about an individual or a family that sustained a loss. As much as you want to think about that greater case, it doesn’t really help on the plaintiff side, if you put too much emphasis on that greater case, that larger case because you lose the importance of this case to this family.
Now, on the other side, when I’m in the other room, and I’m talking with defense lawyers and sophisticated counsel and the sophisticated adjusters, and we’re talking about this case, and those other cases, there’s value in me talking about those other cases because that other room is making economic decisions. You as the plaintiff’s lawyer and you and your room, you’re making economic decisions, but it’s on a much smaller basis.
The other room, the defense room, is trying to figure out where this fits into a myriad of other cases, and a myriad of other problems that plaintiffs lawyers don’t necessarily focus on or have to deal with in their singular case on most cases. Sometimes, you’ll have plaintiffs lawyers, like your mentor, who’ve looked at trends, they look at multiple cases, they make decisions based upon not just this case, but others. For the most part, when we’re in that room, we’re trying to make decisions based upon this family, this individual and their losses, and it really does at times force you to focus on, what can I do with this family in this case today?
Justin Hill: Generally, before mediation, you’ve told me, you and I have a mediation coming up. When this airs, we will have had a mediation and you told me, “Give me everything. I want everything. I want to know all the documents, what is your case?” I’ve had all kinds of experiences. I have mediators who don’t want anything, and when they show up, it’s as though they are just trying to move a ball between two people till it gets close enough that both people put their hand on it. Then you have mediators that really do prepare.
When people give you a bunch of information prior to mediation, what are you trying to do? I assume you’re trying to take a real neutral look at it all and make a outside view on what you think is fair and reasonable, what the traps are, what the warts are, what the good parts are. What is your take on how you evaluate a case prior to walking in and hearing opening statements?
Brian: Before you walk in the case, I will have read each and everything that you provided to me, on both sides. Trust me, I’m well aware of who provides me with information, who doesn’t. I’m well aware of why certain people provide me with certain information, why other sides they don’t provide me with the information. I’ve been a plaintiff’s lawyer, I’ve been a defense lawyer. I know what those reports look like upstream. I know what’s supposed to be placed in this report. I know that certain reserves are set aside. I know that certain predictions are made. I want to know that.
I’m not trying to embarrass anyone, but I’m not a fool. I’ve done this, and I know when I’m looking at this information, as much as some of that’s advocacy, there’s a point where you’re simply reporting. I want to see that because I want to be able to help each room. I know that sounds hollow, but I really do want to be able to help each room when I go in and make comments about strengths and weaknesses of a certain case. If you tell me that a plaintiff was fantastic and I don’t have the deposition and I can’t say why this person was fantastic, then when I’m in that room, I’m not going to be able to be as effective as possible.
On the other hand, if I’m in the other room, and they’re saying, “Well, that’s not even going to come in.” Or, “That’s not admissible.” Or, “That’s not going to be an effect or a factor in this jury”, I want to be able to say, “Well, actually, here’s how it could potentially come in. Here’s how it could affect you, and here’s how this changes the value of your case.”
I still consider myself a practitioner. I still consider myself litigator. I don’t consider myself mediator, that’s not going to be my principal business for a long time if it ever is. As such, my knee jerk response is always going to be, how do I evaluate that evidence? How would I respond to it and what does it truly mean?
That means, ultimately, if you give me information that I think is not dispositive or important, or changes my evaluation, at some point, I’m going to tell you that. If you make the mistake of asking me what I think your case is worth, I have friends who are mediators, who are great lawyers, who do not want to respond to that question, I will respond to that question, but I will only respond to that question when I feel like I have all the information.
Justin Hill: Another question I want to ask you from my own personal edification is, my first boss, his role in mediation was three moves. He always stayed for three moves, no matter how offensive or terrible their opening offer was. He always said that that’s when you start to see what their direction is. When I came out of law school in college, I’d taken a class called Negotiations, in the Business School at A&M. The basis for the class was about getting DS, that was sort of the deal. I came out and thought, “Oh, we got a bat. Now, we’re all going to figure out how to get this thing resolved.” I realized, “That is not mediation. That is not how it works. This is not a fair discussion.” You’ll have adjusters come in, and they’ve ran your case through a computer program and you’ve got dollars and cents. We’re going to offer you $10,136.07, crazy things like that.
What negotiation tactics, or styles do you think are the most effective and the most persuasive in a mediation?
Brian: The best thing that you can do as a lawyer on either side of pending litigation is provide me with the information that you’re making your decisions based upon, some insight into your experience and how you would handle this at trial. Ultimately, any tidbits that you think may move the needle one way or the other and be truthful about it. I am from a different time, I grew up in the afterglow of calm which means that you could try as many cases as you possibly wanted back in 1992 to 1993.
Now, those words are somewhat hollow because, obviously, we’ve got a different demographic sitting in that jury box, but the experience is still something where people want to pitch to me, “Okay, I’ve tried cases, I’ve tried cases, I’ve tried cases.” As I get older, and I get away from that, I realize, it’s not necessarily that you’ve tried cases, it’s that you have the experience and the system behind you to if you have to try this case you’ll try it. I think that’s incredibly important.
I think people get focused on, “Well, you’re board certified or whatever.” I don’t think that’s it anymore. I may absolutely be in the minority on that, but what I want to hear is you have taken a strong stand, your values come from a certain place, the ultimate point that you want to reach in this mediation is X and this is why you think you can get to X. If you think you can get to X based upon both your experience as well as the experience of the community, then that’s all I need because when I go and talk to the other side, and I’m talking to them about why they think that the results should be a certain way, if that result is not something that comports with what you told me and not what you’ve told me about you, but what you told me about what’s going on in this venue, I can talk to that company, I can talk to that adjuster, I can talk to that defense lawyer and essentially tell them, “I don’t know where you’re getting your information, but your information is wrong and you need to either change it now, or you need to ride this horse until it goes to trial, when you may not have the opportunity to change it.”
Justin Hill: Working with Mikal Watts was my first job and I don’t know if I’ll ever run across a lawyer who was better at finding the pinch points and insurance coverage issues/multiple policy fights. One thing that made him so good is, when there was multiple policies involved, he was just really good at making sure all of them were at the table and each one was applying pressure and pressure points were needed. He was masterful at it.
Have you come across– Let’s take those out of the case because that is not your normal set of cases. You’re not going to run into your normal case where somebody’s lost a loved one and there’s 10 layers of $5 million. That’s not normal.
Have you run across anybody in your career that you thought was really just a masterful negotiator in mediation contexts? If so, what made them better at mediation than others?
Brian: I think the people that look at mediation as a precursor to trial and the people that are able to communicate the fact that there are certain things that you believe are evidence and you believe are important in this mediation phase that ultimately may not be important in trial, those are the people that I’ve really thought were effective and were honest. Sometimes you go in a mediation and you’ll have people who are pitching certain things and you’re sitting there thinking, “Okay. Well, that may be important today, but it may not be important at trial.”
The people who I believe are effective and get the best results on both sides are those people who take away from the theory of trial and reduce it to the practice of trial and reduce it further to the presentation of the information to a jury, a mediator, or an arbitrator. I think if you go into that session, that opportunity, and you can present that information in a way that makes common sense, even though your gut response on the plaintiff side is, “I don’t want to do that because I’m presenting my trial strategy.” Or in the defense side, you’re like, “I don’t want to do this because they’re going to change the way they present certain things. They’re going to change the [unintelligible 00:26:02], their opening or certain questions.”
I think if you do that, and you give them that common sense approach, and you give them that common sense evidence, I think you’ve done a service to both of your clients because, remember, these cases don’t have to resolve. You don’t have to resolve your case at mediation whether you’re planning for a defendant. You asked for a jury trial. Sometimes you get what you ask for, you just need to be ready for it. I think in mediation, arbitration, or whatever the setting is, you need to present your case as if this is going to trial and this is what we’re going to do and I want you to understand this, such that, you from a strategic standpoint are not surprised when I do this.
Justin Hill: I think there’s a good place to end it, I think we could go on and on and on about mediation, but that’s a really good way to end this, is the idea that it’s an opportunity for the attorneys to advocate for their clients, to tell their story, to tell their case, to maybe convince the other side to pay more money, and to maybe convince your client to take less money. Otherwise, they can let 12 jurors figure it out.
We’ll have Brian on occasionally for more of his insights. I like having much older lawyers like himself on here to discuss what he’s learned in his career, and all the things he knows but that does it for today’s episode.
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