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Negotiation of Personal Injury Cases

Why Negotiation Requires Preparation
Negotiation

Negotiation poses a key opportunity in every legal matter.  Many or most cases settle before trial.  Enlightened negotiation skills increase the likelihood of acceptable final results.

Basic skills are the same but we focus here on negotiating personal injury claims.

Know Your Case Before Negotiation

In a personal injury claim knowing the case brings special challenges.  Do you have all medical records? Each medical visit to all medical providers, from the hospital and all others?  Do you understand each entry in the medical records?   Health care providers often scribble and use various codes and abbreviations.  It’s not good enough to assume the insurance company will not understand them, because they will.

Insurance adjusters and attorneys understand medical records.  Consultants often help decipher written scribbles, abbreviations, codes and lingo peppering electronic records.  Going into negotiation without understanding all of these is like going to a boxing match without gloves.

Knowing the case requires full understanding of liability.  Do you know all of the intricate details of the accident scene, the defective product, things that may not have been initially apparent?

Know your Opponent’s Case

In a personal injury claim the injured person submits medical bills and records, accident reports and other documents to the insurance company.  The insurance company submits nothing back other than empty forms to be completed.  What is the insurance company’s case?

More important than the numbers in a case are the reasons for the numbers.  Why is the claims adjuster giving a low offer?  Do they disagree as to how the accident happened?  What details provide the basis for that opinion?  If the case goes to trial what details in the medical records will they use?  Are they claiming pre-existing conditions, contributory negligence or some other defense?

Know your Opponent

Negotiators for world peace on the international scene know the dynamics of the countries they’re dealing with.  So, too is it crucial to know everything about the decision making process of the insurance company on the other side.

Does the company you’re dealing with use computer claim evaluation?  If so, what are the data fields used?  Some insurance companies refuse to include residuals or the need for future medical treatment.  Others require such data and the lack of it devalues a case.

What is the authority of the adjuster you’re dealing with?  Who is their decision maker, an office manager, a regional manager, or a computer?  Some insurance companies have policies enacting an extremely limited range of evaluation, so negotiation presents a struggle to push the envelope outside the range.

Give Reasons for Other Side to Move

Whether negotiating on the telephone, in mediation or another context, do not let the process be a battle of wits in which demands and offers become a showdown.

In each round of negotiation give the other side a reason to move.  Read all documents and raise a new point that has not been mentioned previously.  Simply demanding world peace has never worked.  In negotiation here, giving a reason for the insurance company to move is crucial.

Consulting with a medical or liability expert or even having another pair of eyes review the facts may provide new insight previously not part of the negotiation.  Re reading all of the documents, or asking a question, rhetorical or otherwise, about a previously unchallenged insurance position might move the case forward and out of the battle of the wits deadlock.

Listen

No one likes being ignored.  Psychologists explain that the need for acceptance and affirmation top the list of human requirements for wellbeing.

You enter negotiation fully prepared and exhaustively researched on the issues.  But, what is the other side actually saying?  Listen to every word.

Let them know you are listening.  It shows you care not only about making your own point, but also understanding why it is they take their position.  Express their concerns back: “so the insurance company believes the bills for the medical tests are inflated and do not reflect the injury”.  This shows you are listening.  Make a note to address that point later, showing you are actively listening conveys your seriousness of purpose.  Patience is your currency in negotiation.

Patience in Negotiation

Patience is as important to negotiation as air is to life.  One of many books by “the experts” on negotiation recommends removing the personal element from negotiation, then spends a chapter describing how and why personalities drive the course of negotiations.  The takeaway from this article is that you do not want to go solo against an industry with a record, a history and a process when you can enhance your results by retaining experienced legal representation that has been through negotiation many times before.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

The information on this web site is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies. This web site must be labeled advertisement in some jurisdictions.