Episode #312 – Med Mal Perspectives from an Attorney, Physician, Mediator, and Arbitrator – Part 2
I was a guest on the above podcast. Please visit any of the links below to see and/or hear this podcast.
[0:12] Steve Welcome to The Litigation Psychology Podcast brought to you by Courtroom Sciences. Here’s part two of my interview with mediator, arbitrator, physician, and attorney Paul Molinaro.
Talking about mediation, so, let’s move on to how you your life as a mediator and what how did you get into that? What led you down that path? What made you decide that that’s another thing you want, another feather in your cap you wanted to do?
[0:37] Paul Um, that this has been a good segue because we just talked about how it’s never over. Um, and then you’ve got on top of that court, which determines my schedule. They, you know, you can say your honor I do have a vacation coming up, but you don’t get a second chance when you set trial. That’s going forward on those dates. Unless the court, which usually it does, says, “I can’t do trial because we have somebody in there, so we’ll call you again next week.” So, your trailing, as they call it, um your schedule’s not yours. Um, and after 20 years, that got to be quite a burden, and I wasn’t doing, wanting that anymore. But I had always enjoyed negotiating as sitting in the lawyer’s chair, being a party representative in a, in a mediation, representing the party. Um, and I’ve always found it fascinating. So, I’ve always tried to read up on that and get better at it. Um, there’s techniques you can use um and things like that. Um, and then at some point I said this will be a great transition. I call it my retirement job because I don’t think I’ll ever retire, but it’s going to be no more litigating. So, I have one last real estate case, which I really like. It’s a great case, but you can’t litigate and be a mediator because if people are finding out you’re a plaintiff or a defense, neither side’s going to hire you, right? Um, and I don’t want to litigate anymore except for this one case, which is actually really fun. Um, and if it’s my last trial, so be it. And defense counsel might even be watching your podcast, so he should know that I have, no, if it ends up being my last trial, I will tell him that. It’ll still be a lot of fun. But, um, the, uh, so I took it like any other area that I’ve gone into. There’s minimal classes you can take to be a mediator, get certified, and this is a whole new thing. I’ll, I’ll touch on that in a second. Remind me to go back on that. So I went to school, I went to the Strauss Institute, which is out in, it’s Pepperdine Caruso School of Law, has an actual Strauss Institute of Dispute Resolution where that’s their field and you can uh get various degrees. I spent a year there uh studying mediation, arbitration, took classes and everything, including one class was just on the psychology of mediation and all the biases and cognitive biases and how to overcome them, and how to, mostly how to recognize them first. You can’t overcome them if you don’t recognize them, then some techniques to get past them, um and things like that. Um, so I said, “Okay, now I really do, I, you know what? I actually, this is even more fascinating than ever. Now I really do want to do this.” So, I started mediating for the courts, which are volunteer positions. And then that picked up, and now I have a pretty good private practice in mediation going. Um, but it’s been only two years, which is kind of new, I would call it. So, my private practice is growing. I still do a lot of mediations for the courts. Um, and I was talking to my wife about this, I guess a couple weeks ago, and I was saying, you know, when I’m representing a client, sometimes they’re very happy with the outcome, and sometimes they’re not. Um, I find that I feel like I’m doing a lot more good as a mediator somehow. I’m still trying to figure out how to put it into words, but it’s not, from my side of it as a mediator, it’s not real confrontational. As a matter of fact, it should not be. I’m trying to get two sides to agree on something, and when they leave, I always say it’s like, kind of like buying a car. No offense to car dealers, but everybody feels like the next guy coming gets a better deal than them. If you feel like that, it was probably a good settlement. So, I’ve got people leaving with a resolution, um with a resolved case and not going to trial where someone’s going to get hammered and the other person’s going to say, “It was totally out of my control.” And even when you win at trial, it’s not what you think. You’re going to get money, especially. So, I, my specialty for mediation is cases with bodily harm, medical problems. And I always have to start out by explaining it’s going to be about money today. No one’s going to jail on the other side. No one’s losing their license. No one’s going to be ordered to stop practicing. And by the way, it’s the insurance company on the other side that’s going to be paying for the car accident. So, this is about money. But you got hurt, and we have to really focus the person that they’ve been hurt, but the only thing they’re going to get, whether it’s trial or mediation today, is money. And I can actually, sometimes you can, you can see the light come on and they go, I understand, and I think I’ve gotten through to them, and they get to, I get to hear their story. They get to be heard. They get to have control over what they take. And I feel good at the end of it when it settles. I say, “Oh, you know what? The defense side, the adjuster and the defense counsel are saying, ‘Thank you. We got this off our docket. You know what? We can live with this. We’re good.’” And then the plaintiff says, “You know, I can put this behind me now. I don’t need to go to trial a year from now and just keep reliving this.” I don’t get that a lot of times on my cases, you know. So, it’s kind of rewarding to do, uh, in a way that practicing law wasn’t.
[5:05] Steve Yeah. You know, you talked about finding some resolution, um on some cases. I want you to talk a little bit more about, and maybe this will tie into some of this psychology behind um the the mediation process, but like, you know, I’m sure some of them don’t resolve, um, right, they go nowhere. What has been your experience as far as ones that don’t resolve, or ones that are very difficult to resolve? Like what are you seeing on the sides of the parties, um, from a psychological standpoint, from a strategy standpoint? Like, what has been your experience?
[5:41] Paul So there’s two kinds of mediations I do. We’re talking about the court ones. Those are ordered most of the time. They’re ordered to court, which means neither side, often somebody doesn’t want to be there. They’re very difficult. When you hire me privately, both sides are paying to be there. They’ve agreed to mediate, those have a much higher chance of success. Um, so sometimes in California, for instance, on a medical malpractice case, the doctor has to give consent to $30,000 and above in any kind of settlement. It gets reported to the medical board. The doctor may not give consent. So, you show up, you know, and they’re like, “Look, we’re here just cuz the court ordered us. This doctor will not consent.” And I try to talk to the doctor and talk about the things we talked about, um, not the way I talked to you about it. I have to be a mediator and non-biased. And I say, “Well, what are your fears, doctor?” And I ask them like, and then they tell me. And then I say, maybe your counsel can talk to you about some of those fears. And then I let them talk, hoping that their counsel says what I said to you. It’s not the end of the world. Your insurance is not going to cancel. You’re not going to lose your license. And then hopefully we can break that, alright he gave us consent, and then we can kind of try to settle. Um, but in general, the ones that don’t settle are where someone comes in and says, “I want X,” and they’re just, it’s on principle. I need this or I want this. And they don’t want to listen to anything. And sometimes it’s the client and sometimes it’s their attorney. Um, and they just completely feel they’re right. Very few times in my 20 years have I ever, and I try never to use that word, slam dunk, because we all try to say it’s a slam dunk. There’s no such thing as a slam dunk case. And my other example that I tell everybody in mediation is, any attorney who tells you they know how trial is going to end has never done one. We have all been shocked by, oh my gosh, jury, were you listening? I don’t think you were listening to this case. How did you rule that way? In my favor or against me, either way, you’re sitting there, you know. So, or a judge, jury, you know, you’ll never know. So, the ones that are so sure and they won’t listen to anything, it’s tough. But what you also try to, the way you get around that is, psychologically, what people say is not what they mean. “I want this.” In the employment law case, sometimes it’s not about a raise. It’s about the respect for the job you do. Maybe it was a title change. Maybe it was the way you’re treated at work, but your lawyer can only get you money. So, you got a lawyer saying, “I’m going to get this person X, Y, and Z.” And then when you start talking, you find out, well, it wasn’t really, they were fine with the money, they could pay all their bills, what they want was more respect. They wanted it to be, you know, why does this person get a promotion and they didn’t? And then you can actually resolve it. And then there’s the medical cases, personal injury, they’re done. There’s no future relationship between the parties. And those aren’t all the cases I mediate. I mediate all kinds of cases. Sometimes there’s going to be a continuing relationship. And those are more interesting in the fact that there’s so many more parts, moving parts you can get. Well, what if we do this, will you do this in the future? Well, you got, you guys need to, you’re the only person that sells widgets and he’s the only person that buys your widgets. You guys got to do business. So, let’s figure out how we can go forward here. Um, and then you start exploring options and find out what people want. And the way you get that is by asking them flat out, or reframing questions to get them to bring out an answer that they didn’t know, making them self-reflect. Say, “Well, why do you think that’s so important for you to get that? And is there something you could give up that you think the other side might trade for?” And let them make those decisions. So, that’s, well, that was a lot, wasn’t it?
[9:08] Steve No, no, that’s fine. I mean, I think you touched on too is, it kind of answered one of the things too is, when you see that you have difficulty, and then kind of what your role is when you have people at an impasse, is that you have to kind of come in once again and kind of mediate and get the two parties looking at things differently, right? To say, maybe you give a little bit here, you take a little bit here, and then we try to come to an agreement.
[9:31] Paul So there’s two kinds, basically there’s two kinds of mediation. There’s facilitative and evaluative. There’s a few other kinds too, but facilitative where you encourage the parties to work it out. Evaluative is where you tell them your opinion. And you got to be very careful um when you use the evaluative side. Although sometimes I’m hired for that reason because I have a medical expertise or whatever. And people do want to hear my expert opinion. Although I will remind people, till they tell me, “Stop telling me, I get it. You’re not an expert in this case. But I did want to hear what you think.” So, I’ll tell them what I think with the caveat of, just my opinion today sitting here, without, and your expert has reviewed the records way more detailed than I ever will, but I’m just throwing something out off the top of my head. And oh, by the way, I’ve done cases just like yours, and this is what happened, you know. So, I get to be a little evaluative. So sometimes you can push them from their position by doing that. Facilitative is not so pushy, and then every mediation is a mix of those two, um, you know, depending on the parties. And then who’s driving it, sometimes you walk in a room, and the client is the one driving it and the attorney’s sitting there, and you can tell the attorney’s going, “I’ve got no control over this client, go ahead and talk to them.” And I may even pull the attorney into a room separately and say, “I’m getting the feeling that your client and you aren’t really in agreement with how this case should resolve.” “No kidding. My client wants a million bucks, and I would like to take this because I know it’s not a million-dollar case.” “Is it okay if I talk to your client and say these things?” I ask, and they say, “Yes, please. They need to hear it from somebody else who’s neutral.” Okay. And then we talk, and that can get them off their position to change, you know. And then there’s all the typical techniques you can do. But yeah, you got to find out what’s driving their wants versus needs, and all that, right?
[11:17] Steve Yeah. And you know, I know, obviously we’re in the business of doing jury research and getting, helping the parties come to an idea of how much the case is worth. Um, what has been your experience? Have you seen any jury research? Do you hear from attorneys, hey, we ran jury research, we think this case is worth X, that’s why we’re kind of dug in the way we are? Or what has been your experience with that?
[11:41] Paul Oh, yeah. Of course, a good attorney will have done that research and put it in their brief, or at least tell me during the mediation, hey, or some of them, this is, I’ve done 10 of these rotator cuff shoulder cases, whatever. This is what I get on these cases. Make sure the defense knows that. I’ll say, yeah, but no two cases are alike. I might remind them, and you know, um, you’ve got this, what you’re here to settle today. You’re talking about your best day at trial. Sure. But maybe, you know, you might want to back up a little bit and say, “Are you sure about the liability?” Because your guy made a left in front of the car. Um, you know, that guy might not have, you know. So, you start to, you got to focus off of that. Um, because you’re not going to get, at mediation, you’re not going to get what you would get at trial. But yeah, if you’re a good attorney, you should know, what you should have done that. And they should, and if they should be able to present that to me, is this is why I value the case at X, Y, and Z. Juries are now giving it. And you know, as a jury consultant, it varies by county. LA County, great for plaintiffs. Riverside, Orange, maybe not so much. Um, and then, you know, and every other county in between, and what town it’s in and all that. Um, and the good attorneys will know that. They’ll say, “This is not going to go so well for me because I’m in such and such county.” Um, and they have their, what we call BATNA and WATNA, right? Best alternative to a negotiated resolution, and worst. So, the attorneys who’ve done that will have those numbers and kind of realize, well, this is what I’m coming in here today so I can settle it, but I won’t take a penny less, or the other side saying, I’m not paying a penny more. But at trial, you know, anything could happen, and I’m sure you’ve seen that, this is your specialty, so you put those 12 people in there and boy, they can do anything.
[13:16] Steve Well, you know, and what’s funny is, I want you to talk a little bit, what’s been your experience? You know, sometimes I’ll hear from attorneys, well, we went to mediation and it failed. Like, we didn’t even get started because we threw out a number and the other side said that’s an offensive number, and then it just shut down. But then what happens is, as trial starts to progress, as the jury’s starting to get picked, what has been how have you noticed that those kind of conversations have kicked up, and they look a little bit different than they would say maybe six months earlier?
[13:55] Paul Oh, so a good attorney will evaluate the case from the day they pick it up, and re-evaluate all the way up till trial and through trial, to see how it’s going. And you’ve got to be open to, hey, things are going really good for me than I expected, or uh, oh, things are not. Um, you know, you’ll find things out as you progress. So, I always tell people about mediation, the timing of mediation is, mediator selection, uh, you know, cost of mediation, is it worth it for this case? But timing is everything, too. I like playing poker, uh, especially tournaments, because I think it’s the fairest way to do it. We all start with the exact same, but pot committed. At some point, you become too pot committed to walk away, and the other side makes a little raise and you’re like, I know I’m going to lose, but there’s a chance, you got to stay in. So, if you’re the day before trial, everybody’s as invested as they’re going to get. And at that point, somebody’s going, I’m rolling the dice, I’m going to trial. We’re ready. Experts are lined up. All my fees are paid. Jury, you know, we’re starting jury selection Monday. And that case could have settled three months earlier if they had just timed it. But too early, you know, sometimes you show up at mediation and they’re like, “Well, the person’s still treating.” That’s a common one. Why’d you guys schedule? Well, the court ordered us to have mediation done by now. You know, we had to. It’s okay. You could have told the court, so and so’s planning a shoulder surgery and you want to mediate after the surgery, because what if it’s successful? What if it’s not? How do you settle a case when you don’t even know they’re done treating? Um, so make sure the timing is right. And then sometimes, so I have plan A when I mediate, settle the case. Plan B for me is exchange information. A lot of times I find both sides were holding on to their cards, thinking they needed to be strong at this point. I go, “Well, if you guys want to settle, that’s going to come out. That information is going to come out sooner or later. It’s going to come out at trial, if you know, for sure. Why not exchange that now, or get that deposition done, because you really need that? You can evaluate the case.” So, let’s, we’ve exchanged some information, plan B, and we’ve got, we made a plan for our second mediation. Okay, we’re going to depose so and so. We’re going to get the surgery done. We’re going to get that motion for summary judgement heard, whatever. And then we can plan a second round of mediation. And then it’s much higher chance of success at the second one, because now everybody’s coming in with the information they need to make an informed decision, or informed consent, as we would say in medicine, right? So, timing is important, but yeah, they don’t always settle in one mediation. And I remind people that today’s your best chance. It’s going to get more expensive from here. But that’s okay if you can’t. If you need more information, not a problem. Get that information, cuz you need to be happy with whatever settlement you’re getting.
[16:29] Steve Yeah. And you know, let’s talk a little bit about kind of anchoring. And one of the last things I want to talk to you about is about how you’ve seen anchoring being used, and how that adjusts and affects that whole negotiation process.
[16:47] Paul Okay. So, for your listeners, or viewers, who aren’t familiar with anchoring, or are they all? I’m not sure.
[16:54] Steve Most of them will be familiar, but we can talk a little bit about, talk about that.
[16:57] Paul So,what’s the population of Australia? I want to know that answer. So, I tell you first, I ask group A, is the population of Australia 25 million or more or less? And then I say, what is it? And then I say group B, is the population of Australia more than 100 million? And then you say yes or no, they say what is it. Group A will consistently give you a smaller number when you ask them what the population is, versus group B, because I led them with an anchor of 25 million or 100 million, and that number sticks in their head. And then in mediation, that happens a lot too, where, um, one of the questions I always want to ask is, have you guys mediated before? Have you tried to settle? What numbers have been thrown out? Because those are strong anchor numbers. We left off at, you know, at $50,000 or whatever. Well, that’s, both sides know $50,000 now is out there as an anchor. Um, the starting number is another anchor. Um, you mentioned earlier, insulting. I’m insulted. Yeah, you know, so I wish I had a nickel for every time I heard somebody’s not, I want a million, and the other side says I’m not paying a penny. Um, and then the case will settle for 60,000 or 750, or anywhere in between. I always tell people, you’re going to be insulted. You’re going to, I can’t believe they said that. That’s fine. When they say a million, it might as well be a billion. When they say zero, forget it. You just counter, you know, you got to come down a little bit. That’s why you said a million, isn’t it? You can, because you have room to wiggle, and they said zero so they can come up. Um, those first numbers, but they are anchors. Um, and then the other biggest anchor, which usually isn’t there, is the middle number. Every time you read a book on how to negotiate or how to mediate, do not focus on the middle number. Do not focus on the middle number, and everybody focuses on the middle number, including the mediator, who will then mention it, and everybody, as you can see them, sometimes you can hear the calculator ticking as they’re calculating the middle number. Um, and that becomes the anchor that I got to beat, to get less or more. So, your last offer is 100,000, mine’s 50, 75 the middle. We’re not going to settle at 75, and that’s my number to beat, it’s in my head. Recognize it, and I tell everybody, guys, girls, whatever, this is the middle. We’re all going to ignore that. It might, we might end up settling at 75 today, I don’t know. But let’s see. Let’s try not to let that affect us. Although everybody keeps thinking 75. So that anchor is so strong. But yeah, it is. Identify it, recognize it, verbalize it, let everybody know it’s there, so that it’s not a secret to anybody. And then a lot of times you can kind of, it’ll get put to the side, as best as it can.
[19:36] Steve You know, that’s interesting. I hadn’t ever heard, really, when you were talking about kind of the middle number being an anchor, and that’s what we see a lot with juries, right? Is they say, plaintiff’s high, defense is low, and then you might meet somewhere in the middle, and that’s kind of what you’re talking about as well, is that everybody’s kind of seeing, well, what is the middle number, and then am I comfortable with the middle number from a plaintiff’s perspective, defense perspective. Um, but I think that’s really interesting um to hear you talk about that.
[19:59] Paul Yeah, it’s just a natural thing to do. We go to the flea market and I want a jacket, the guy wants 50 bucks, and I want to pay him 10, we’re going to end up at what, 30? Don’t make me do math, but we’ll end up at the middle, right?
[20:10] Steve Yeah. Yeah. So, I want to ask you one last thing, you know, so as attorneys are getting ready to go into mediation, kind of from a mediator’s perspective, like what is your thought of, like, these are the things you should be doing in preparation for mediation, so that you can come to mediation and look prepared and have a productive mediation?
[20:34] Paul Absolutely. You’ve got to know your case and what it’s worth. You talked about that earlier. Whether that involves jury verdicts or your experience, be realistic and know it. Um, understand the strengths and weaknesses of your case. Every case has strengths and weaknesses. Like I said, very rarely do we get a case where it’s so one-sided. And guess what? Those will settle, if the other side’s smart enough, they’ll start throwing money at you, or they’ll start telling you, “We don’t want that much after all.” Um, absent that, you’ve got weaknesses. Make sure you understand them, and make sure you, you know, don’t overplay your strengths. Um, do a mediation brief. If for no other reason, by having to do that, go through the process of writing your mediation brief, you’ll understand your case much better. And make sure you get the mediator the mediation brief. It helps us. Otherwise, if I don’t know anything about the case and we have a 4-hour mediation, I’m going to waste the first hour just figuring out what the case is about. Get it to me early. I like them to get to me 5 days early. I want both sides to get me their mediation briefs. And then I read them and I say, “Oh, this is information that I would like to have at mediation.” I like to have pre-mediation phone calls. And a lot of times that will be, not really discussing the case as much as it is as, “Hey, you talked a lot about lost wages, but you know what I didn’t see in your mediation brief is any documentation of lost wages. Did you guys have that? Oh yeah, yeah, we exchanged that in discovery. Okay, could you have that available so that you could email it to everybody at mediation? I know you’ve given it to them already, but they’re going to claim they didn’t see it, or they might not have it available on their screen. That way we all know what their lost wages are, or what the medical record said. Could you have that page ready to bring up on a screen share for me so I can see it, or get it to me early, and then I can share it with the other side. Um, and then what your goal is for mediation is always important, and I know you don’t want to show that. So, when I do mediation briefs, I, I didn’t invent this, I was told this by another guy who mentored me. Um, I have two mediation briefs. One for the mediator. It discusses the case and, you know, what’s going on, uh, and why we’re here. The other is for the mediator only. It’s the last section is the only part that’s different. This says, for mediator only, and then on their version, the plaintiff’s or defense version, will say, this intentionally left blank. And on the mediator section I say, these are the strengths and weaknesses of my case, as I see them. Um, I already know that. Two, this is how we’ve talked about settlement before, and this is my goal today. I want this, this, and this. Now, of course, I don’t tell them that my bottom line, at that point. But I let them know where I’m trying to get to today. So, if I start out with a million dollars, the mediator already knows, Paul’s not really trying to get a million dollars, or I want to pay zero, that’s just my opening offer. I’ve already told the mediator, don’t worry, I don’t, we will be paying money today. Um, so the mediator then, we start, we hit the ground running. So, that first hour is not wasted. We got four hours, we’re going to mediate for all four hours. We’re not going to spend any time getting educated about the case. Um, yeah, be prepared. And oh, oh, your client too. Client preparation. Make sure you tell your client what mediation is and isn’t. The mediator does not make any decisions. The mediator doesn’t tell the court what’s going on. The mediator might say things that sound like opinion, but they’re just that mediator’s opinion. Um, and how the process is going to go. It’s going to, we’re going to go back and forth between two rooms. Now, it’s all done by Zoom, as you can imagine, although I still prefer in person. And I still do them sometimes, but so I’m either going to walk between rooms or I’m going to go from Zoom room to Zoom room with an offer and a demand. An offer and a demand. And we’re going to go for the full four hours. We’re not just, it’s called the dance, behind the scenes, the mediator’s dance. You can’t dance too fast. You can’t dance too slow. You got to go with the tempo. And it takes a bunch of rounds before a mediation will be successful.
[24:02] Steve Excellent.
[24:03] Paul Be prepared for that. Some mediations will go eight hours. I mean, sometimes it’s a more complex, if there’s more than a few issues, you know, people will schedule for an 8-hour, you take a lunch break, and you know, one side goes to lunch while the mediator meets with that side, then the other side goes to lunch. The mediator doesn’t get lunch.
[24:22] Steve So, do you see typically more like four-hour mediations than the eight-hour?
[24:26] Paul That’s typical. The PI cases are generally four hours. Uh, employment cases might be all day. Um, if there’s more than one, uh, two parties, like a med mal case where there’s like three defendants on the healthcare side and one plaintiff, that might be a whole day, because you just don’t have the time to spend in each room.
[24:39] Steve Yeah, that’s interesting. Talk a little bit about that, actually. I thought I was going to let you off the hook, but every time you keep bringing stuff up, it makes me want to ask you more questions. Talk to me a little bit about that then, about when you have multiple parties, you know, how do you, from a mediator’s perspective, where maybe you have one defendant, it’s a defendant hospital, then you have another defendant, just the individual physician’s practice, like what is that dynamic as you’re going room to room and discussing?
[25:09] Paul Every case is different, so you might have a defendant hospital, uh, and then you might have a defendant, say, ER doc, and then you might have a defendant radiologist, and the ER doc is blaming the radiologist, the radiologist is saying, hey, ER doc, you didn’t tell me what I was looking for on this X-ray, and that would have helped me. Sure, now I see it, but I didn’t know I was looking for this. You didn’t give me the right history. Um, sometimes those two defendants are coordinating and sometimes they’re not. So, um, you will always keep them in separate rooms for the most part, but sometimes a physician and the hospital might be represented by the same person, and that’s their problem. If they have conflicts, they’ve disclosed it and done it. So, there might be one person. Um, and then so the defense side will have the attorney, um, and the claims adjuster. So, the hospital may have the same insurance with two different claims adjusters, because they are even keeping them separated, because the doctor is represented by the same insurance company as the hospital, but they have two claims adjusters assigned, and they’ve created a wall between them inside the corporation. So, they don’t even know what each other’s doing. And then I say, would you like me to, let each of the defendants, would you like me to know what your offers are between each other? And they’ll either tell me yes, we do, or no we don’t. The plaintiff only cares about one number, the total. They generally don’t care who pays what. So then with that said, I’ll go to the defense and I’ll say, “Do you guys mind me sharing what each of the other defenses is saying number-wise?” “Yes, we do. We don’t want them to know.” It’s going to be tough, but all right, we’ll do it. Or, we don’t care what you say. We all know that they only care about one number, the total, but this is all we’re willing to pay. So, you know, it depends. Um, I had one where, uh, you know, it was like I think seven defendants. That was the biggest one I’ve done as a med mal.
[26:46] Steve Geez. I could imagine there was a lot of personalities and a lot of different decisions.
[26:50] Paul Yeah. And I only had three hours to do that. It was court-ordered. So, Riverside County is a little strange. Um, it’s my home court, so I’m used to it. Everybody who doesn’t know better thinks you’re going to go to trial on Friday morning, and you don’t. You get trial call. The judge calls your case, and you say two things. He says, “Are you ready for trial?” You say yes or you say no. If you say no, you’re about to get yelled at. If you say yes, you’re going to a mandatory settlement conference with one of the mediators who’s waiting in the wings. Used to be in person, now you have one hour to sign on to Zoom to somebody like me, and I try to settle those cases. I start off by telling them, admittedly this is going to be tough. You guys are starting trial Monday morning if you don’t settle today. I realize you’re as pot committed as can be, but let’s talk about it anyway. And I have settled those on Friday morning, because the good thing is, as you were talking about earlier, everybody’s prepared. The attorneys know their cases by then. They know the strengths. They know the weaknesses. There’s no more bluffing. There’s no more posturing. All the cards are on the table at that point. And you know, because there is a risk of trial, that’s the weakness that allows everybody to go, “All right, all right. What’s the other side about to offer?” You know, maybe I’ll take it, maybe I won’t. So, uh, but I had one that was eight defendants, um, that was going to trial, and I was like, “Oh boy, this is going to be hard.” You got everybody’s ready for trial. All the doctors were blaming each other.
[28:13] Steve Yeah, I could imagine that that doesn’t turn out well, right? Or it makes it more tough?
[28:19] Paul They’re tough. Had it been a private one, I would have scheduled eight hours, and I would have expected to have a couple sessions. It’s going to be tough for a plaintiff. I don’t know how they did, to show that eight different defendants were liable. They’re going to have to pick a couple at some point and peel the other ones off, let them go. Um, because a jury’s going to get confused and say, “I don’t know. I don’t know which one.” Sure, it was an unfortunate outcome, but…
[28:44] Steve “How can all eight of them be negligent?” Right? No, it’s interesting. It’s funny that you say Riverside County, uh, was kind of your home county. I’ve spent many, many a weeks in Riverside County cases.
[29:00] Paul Okay. It’s small enough that it’s, it’s like, um, you know, uh, country type. Like you almost, the Riverside courthouse down in Riverside is so iconic looking. I mean, you almost expect a guy to show up and rope his horse to the front and go in with his lawyer bag.
[29:15] Steve Yeah. Then you got the Mission Inn right in there too, right? The staple. Well, Paul, I appreciate it. I’ve used up a lot of your time, but I think it’s been excellent hearing from you and all the different perspectives that you bring, um, from all these different uh angles. If anybody wants to get a hold of you, anybody wants to reach out, anybody wants to get you on a case as a mediator, how do they get a hold of you?
[29:41] Paul Go to my website, mdjddisputeresolution.com, and my email is paul@mdjddisputeresolution.com. You can get in touch with me like that.
[29:47] Steve Excellent. Well, I appreciate it, Paul, and I appreciate all the listeners, all the viewers for joining us for another edition of Litigation Psychology Podcast. Make sure you go to courtroomsciences.com. All the blogs, podcasts, papers, all of that is up there. And we will see you on another edition of The Litigation Psychology Podcast, brought to you by Courtroom Sciences.