Okay. Thanks for joining us. If you're listening to the live production, I'm on the East Coast, so good afternoon. My name is Mike Brusca. I'm a partner with Davis and Brusca. I practice primarily in New Jersey, but also over in Pennsylvania. I'm here in beautiful Ewing, New Jersey, famous as we are next to Grover's Mill, which, if you're a history buff, is where War of the Worlds started. H.G. Wells classic radio show that caused the pandemonium in the streets. But anyway, that is right next door. Nowadays it is famous for the Department of Motor Vehicles over there. Anyway, today's topic we're going to be talking about is mediation and mediation statements. It's an important part of my practice. I'm a big advocate of mediation. And so let's go ahead and and have some fun with with mediation. Here's a roadmap of what I'd like to speak with today. Who is this guy? Why should I care? When I use that term mediation, what am I talking about? We're going to discuss the pros and cons of mediation and. In my experience, there's a lot more pros than potential cons. We're going to talk about picking the mediator, which, while intuitive, is absolutely critical and can prevent a lot of future problems if you get it right. We're going to talk about the mediation statement. In my experience, I've always had some kind of. Paperwork. I got to get to the mediator. Some kind of statement. I've learned a lot on doing these. And so we're going to discuss the different sections that I generally include, including a preliminary statement, the facts section, any exhibits damages and special sections. I want to talk to you about preparing the client. Type of work I do is. Intense. I do primarily nursing home neglect and abuse cases. So I do a I do a lot of. A lot of interaction with my client leading up to it and through the process. It's a difficult line of work. Discussing your mom, dad, or spouse who died an ugly death is intense, and it's hard for folks to continually bring up. And so there's a lot of preparation I do with my clients. And lastly, I want to talk about the actual mediation itself. All right. So who am I? Well, and why should you listen to me? Right. Well, in my former life almost, it seems like now I've been practicing for a while, but I worked at a large law firm, and then I went into the JAG Corps. Now in the JAG Corps. If you're not familiar with it, you are going to be put in situations in which you are extremely uncomfortable. They are very good at this, and I've held positions in the JAG Corps when I was a very young attorney, which candidly, I was well to be generous to myself. Not exactly the best choice or exactly prepared for that, but that's one aspect of the service, is that you will get a lot of experience very quickly, whether you like it or not. So one of the jobs I had in the service was the chief of tours claims for the first Fighter Wing, which was Langley Air Force Base, which is a very busy base, and it is also the base that holds Air Combat Command, the major command, and was one of the first bases with operational F-22s. It was a cool assignment, but, you know, one of my jobs there was I was chief of Tours claims, and I got to tell you, this was everything from golf ball through the windshield to a broken TV and, you know, to infant death at the hospital. And every single one of these types of events was coming across my desk. And generally speaking, I had authority for resolution of claims up to a certain limit. And I'd, you know, beyond that, it went over to the Department of Justice. But it was a great job in that it forced me to be uncomfortable at the time. But I did get specific alternative dispute resolution training in order to handle this job, because sometimes, and many times I could resolve claims myself and would reach out to the people who filed the claims. If, you know, if you filed a claim and against a federal entity, there's a special form that you have to fill out. And the military is no different. So I'd get the forms and I'd take a look at it and I'd do some investigating and see if I could sort it out. The training was great. They actually recounted a case to me one time where there was a whole unit that fell apart because there were kind of these two colonels at the top of the ladder and two different capacities, but they had to work together, and they used to be good buddies, and all of a sudden they they couldn't stand each other. They couldn't stand to be in the same room. There was all this animosity. And so they actually get someone to do ADR and find out what's going on in here, what's going on? There's a colonel's. If you're not familiar with the military, it's pretty high up the food chain, right? This is just below a one star general. It turns out that one guy is mad. The other guy because he. Because he said, well, you always bring in. Donuts on Friday, and you would always bring in an apple donut for me. And you stop bringing the apple donuts. And I thought you were mad at something I said to you. And the other guy says, no, they just don't make the apple donuts at the baker anymore. And then they cried and hugged and made up. And it's sitting there and you're thinking, that's out. That's insane. How can that be? These are colonels in the military. But. Anyway, guess these kinds of things can happen. So in my capacity in the service, I did do a fair amount of ADR. And the other thing too about that was and it's not on my slide, but at another assignment, I was a I was the chief of military justice, which is basically like the district attorney. And I actually did that when I deployed to the Middle East. I was a district attorney for Qatar and Bahrain and Saudi Arabia, and after that I became a defense counsel. That's all I did for 18 months to travel around the Pacific. And I had clients and trials all over the place, and it forced me to see both sides of the issue, which is a significant advantage I find in the work I do now, that I can see both sides to each issue. In many cases, while I don't claim to be entirely objective because I do care about my clients a lot and what happened to them, but I can see other sides where they certainly can accept the fact that that might exist. Now, as I said, I do nursing home neglect and abuse cases in new Jersey, where I primarily practice, although I do practice in Pennsylvania and sometimes other jurisdictions as pro hac vice, the nursing home neglect and abuse cases in new Jersey are filed as professional malpractice cases, and professional malpractice cases in this state require mandatory mediation. You can get out of it if you really want to. I'd never do that. Sometimes defendants do. But for most of my cases. Mediation is going to be the culmination of it and usually the triggering event for resolution. Now, suffice to say, many of my cases are referred to me. And because these cases are complicated in several ways. First of all, you have medicine, right? But don't do medical malpractice unless it's incidental to my nursing home case or if I have one that's more, you know, med mal ish. My partner takes the lead on those. He's done some, some very complicated medical malpractice cases. Um, but there is medicine involved. Primarily, what I prosecute are corporate malfeasance cases. That is. Uh, that the nursing home is being operated in a way where it's diverting its Medicare and Medicaid money out of the facility, and they are under staffing the facility. And my client died an ugly death as a result of it. And I can tell you, if they're doing this for quite some time now, some of these facilities are as bad as you think they are. And that is exactly what does happen. So my focus is on corporate stuff, spreadsheets, data, numbers, which freaks lawyers out, which I understand I'm I'm about as ungifted in mathematics as any other attorney. So when I see Excel, my first impulse is to look away, almost like Medusa. But nevertheless, in this area I do not have that fear and I carry on. It's also, like I said, data heavy. There's a lot of data that gets sent to both state Department of Health and as well as CMS, Medicare and Medicaid Services. And looking at this data as explained to a client this morning, is oftentimes like the matrix that is, you look at it and you think, What in God's name is this? But I know how to interpret it, I know how to read it. And so there is a lot of data involved. There are also a lot of regulations involved. You have state and federal regulations that. That are going to intersect in nursing homes. And it's document heavy. So there's going to be a at least usually two hospital. Charts. There's going to be a nursing home chart. There's going to be a state findings, complaints. It's very document. Heavy and so. In the intersection of standard of care, regulatory violations, corporate malfeasance. And here's all the documents that show that that's where nursing home neglect and abuse cases lie. At least the way I do it. It's not my job to tell anyone out of practice, but that's the way we do it now because we have mandatory mediation in new Jersey. I have mediated many, many, many, many, many, many, many, many cases. I don't want to say an incalculable number, but whatever incalculable number minus ten is, and I've also worked with a lot of mediators, and I have worked with some amazing mediators. I have worked with some absolutely horrible mediators. I have act with worked with mediators that are somewhere in the middle. And so I've learned a lot about this process. I've learned a lot, and I like to believe that I don't have a gigantic ego. I take feedback from mediators, especially when I started doing this about what they found to be effective or what they found to be compelling, what worked in the other room, more importantly, what they found to be compelling. I remember one time I had some. It was new at the time, this data I was getting from CMS and the mediator told me, yes, that defense lawyer tells you he Pooh poohs that. But I can tell you right now it freaks out the adjuster. So. And he said, you're the only one that brings it to me. So understanding what is effective and what is not effective. And I've been taking that kind of direction and I've been doing this only and only this since came out in 2009. And so as a consequence, I've learned quite a few things in this department. Okay. So when I talk about mediation, what am I talking about? Uh, I'm generally not interested in reinventing the wheel. This is a excellent and candidly, the best definition I've found for mediation from the internet. Intervention in a dispute in order to resolve it. That's really what we're looking to do. We're looking to cut short what can be a very expensive and time consuming process. Uh, candidly speaking of definitions, I have to say, for a lawyer, uh, the best definition I ever heard was from a Richard Scarry book or ever saw. And it's along these same lines as this definition. Uh. It was a Richard Scarry. If you don't know, he writes children's books and his style is basically the same. He has all these animals dressed up like humans, and they're all cute, of course. And it'll be a big scene like the airport, right? So he'll have all the the general accoutrements to an airport like the plane, and then you'll have the tower and all these other issues or all these other things like the luggage carrier. And he would put underneath whatever it happens to be or what you're looking at. Right. So it'll say the pilot, the stewardess luggage underneath and typed letters. And I remember he had one with a town. And I still remember seeing this when I was a kid. It was like a cutaway of the building. And it had a dentist's office, a doctor's office, and there was a lawyer and it said a lawyer, a person who helps people resolve disputes. And that's the way I look at my job as a and my job is to resolve my clients dispute with a nursing home. And mediation is an intervention in that dispute, and it's a way to resolve it. That's the way I look at it now. Generally, and I can speak for sure in my state. And as far as I know, most other states a mediation is confidential, and it's confidential for good reason, because it is. Allows people to be free with settlement, offers settlement demands, things of that nature. And so generally speaking, it's confidential. And certainly this mediation is off the grid. You can make whatever agreement you want. And if. If you've never done it before, it's not a part of your practice and you want to give it a shot. I would certainly say suggest to you that that would be something you'd want to include in that agreement. The other good thing about mediation is you can control the information now. If now I've tried quite a few cases, nursing home and otherwise, and I used to joke around when I was in the service and with my staff that when you were going to trial, it was like a three ring circus. And I used to do the little circus song. Doot doot doot. Doot doot doot doot doot doot. Right. You go in there. God only knows what's going to happen, right? You can prepare for everything you can prepare for. But at the end of the day, I can guarantee you there's going to be at least 15 things that happen that you didn't prepare for, you weren't ready for. And we're completely out of left field. And that's just the way trials are. Right. But with mediation, you can control the information. To almost a complete extent, right? You can take out almost all the variables. You can take out almost all the risk factors. You can convey exactly what you want to convey. It's not like there's going to be motions in limine coming up to the mediation, right? You go to trial, you're gonna have motions eliminate. You know you're not in new Jersey. They handle these five days before trial, and they're going to be usually resolved, or their rulings are going to come while you're picking a jury. So there's the case I want to put on, but God only knows how the rulings are going to come out. So I can't even tell my client 100%. Listen, this is the case I'm going to put on. I don't know, I don't know, I can't, I can't I don't have control over the information. But in a mediation, I have 100% control over the mediation. I'm going to tell my client's story in a way I want to tell it. I'm going to put forward the data and information that I think is important, and there are no restrictions on that whatsoever. The other thing I don't have on this slide, which I really should have, is you can control the outcome. And I've had outcomes that went both ways. Some were way bigger results than I expected, and some were much smaller than I expected. And candidly, I've won cases I should have lost, and lost cases I should have won. I remember sitting there one time, I was trying a case with a buddy of mine and the jury. The jury came back six zero negligence, zero six causation. And I just thought to myself what? And I was just more shocked than anything else. Like I wasn't upset. I was just like, really? You got to be kidding me. Do they not understand the instructions? Which I don't think they did, but whatever. With mediation, I get to control the outcome. At the end of the day, when I'm talking to my client about what's coming, I say. You are going to have between 6 and 8 people who you don't even know, deciding your deciding your case. And in new Jersey, I got to tell you, voir dire is a very limited process. Now when I was in the service, it's a wide open process, so I had a lot more room to navigate that and to expose potential issues. But in new Jersey, very little chance to do that. In fact, I actually pulled jurors after one of my cases that resolved. And candidly, two of them should have never been on that jury. In fact, a judge even looked at us when we were discussing the case with them afterwards because they were very happy to talk to us. He looked at us uncomfortably like, wow, this person didn't say any of this in voir dire. Um, candidly, I was glad we settled that case on the fourth day, but nevertheless, um. I tell clients, listen, if you you can go down to the to the mall and Quaker Bridge Mall not far from here and go pick out 6 to 8 random people. And that's going to be about the same process. So don't even know who your decision makers are sitting here today, but you will have them, I promise you, and you will not know anything about them. Really. So mediation. I can control not only the information, but I can control the outcome to a great extent. Now, like I said, my cases are professional malpractice cases or personal injury I have worked with other attorneys on. Other types of mediation. These are the two that have most of my experience with even the personal injury ones are. Some are horrendous outcomes, but at any rate, that's my experience. And but I'm going to review some topics today that will be useful, at least to my knowledge of any mediation. And now listen, if you do these and you're just listening to this for credit, it's not my job to tell anyone not to practice law. Everybody's got their own style. Everybody's got their own way of doing business. And it's not my job to tell anyone else how to do it. But hopefully, maybe I can give you some ideas or some some tips. And I got to tell you a lot of these things that I'm going to cover today. I have learned from my mistakes, and I am certainly candid enough to tell people that have screwed up. And I have learned lessons. Um, the hard way generally. And I'm not above telling people that that I have. But as a consequence, here's my presentation. So let's talk about the pros and cons to mediation. Now, in terms of the pros, there are a lot of pros. I'm going to go through a bunch of them in a minute on the next slide. I always find there is very little downside from a plaintiff's attorney. That's my side. Guess I should have said that I'm a I represent families of people who generally have, you know, died in nursing homes. But to both sides, I see very little downside to the process and the points I'm going to go over. Go for the defense as well as the plaintiff's side. I always agree to a mediation. I suggest mediation, usually before expert discovery. I find that's a good time to do it, because the way I explain the costs in a case to my client, it's kind of like when my wife was pregnant with my kids. She got the biggest in the third trimester. Well, I also find that my cases expenses are going to go up a lot at the very end, both through expert discovery and trial preparation. So if you can resolve your case at that point in time, it's a good time to do it. Because really, oftentimes all the information is out there and everyone understands the case, and the carrier can spend the money that normally would go to expert discovery to hopefully more leeway to resolution. So I always agree to mediation. Like I said, a lot of times I'll suggest it if we're at that point before we start deposing experts, because that is going to get very expensive at that point in time. Explain to my clients that doctors well, don't think you ever got a doctor bill from a service and said, oh, that's it. That's all he's charging me. It's kind of the same with our cases. It's going to be very expensive to go through that process. So here are the pros. First of all, first and foremost, it forces me to synthesize my case. And like I said, my cases are going to be a intersection of a lot of different things medical standard of care, regulatory violations, corporate. Shenanigans, and it really forces me to sit down and put it together in a similar way. I've often often pointed out that when defense attorneys file motions for summary judgment in a case. I think sometimes they would have been better served not to serve it, because what it forces me to do the same thing right, in a very meticulous manner. And listen, I have attention problems to begin with. It forces me to sit down and dot all my I's, and cross all my t's to lay it out step by step. What is the negligence? How did it matter? How did it cause it and go through it meticulously? And mediation forces me to do the exact same thing, because when I put together a mediation package, I am telling the mediator and through the mediator defense that I am trial ready, that this is what's coming right. And it forces me to go ahead and do that, which is a huge it's a huge benefit to me. And as a consequence, I will say these statements take quite a bit of time for me to put together. I usually put aside a weekend or a day or two to go ahead and do this because it's going to, it's going to it's going to take a lot of time and sustained attention. Now, in the same vein, the next step is it's going to force me to see if there's any gaps in my evidence. What are my issues? What are, um, you know, where are the holes? Where do I what do I need to fill in order to do this? When I was a prosecutor and to a certain extent, defense lawyer, of course, criminal statutes are written with elements we all remember from law school. And so I used to just we just we were trained as prosecutors to just make a grid list out the elements and then write out, well, what piece of evidence is going to prove this element right, so you don't miss anything? Um, because, well, just because is not a legal argument. Right? So when I'm putting this mediation statement together, it will force me to see, well, am I missing anything or something too weak or something to be stronger? The other big, huge pro is look, lawyers and adjusters are busy people, and for one day, all those people are going to be looking at your case and that's it. So all the decision makers are focused on the same thing at the same time. Okay. I tell this to my clients, if your case doesn't settle today, it doesn't mean your case won't settle. In fact, your case may settle in a few days or a few weeks, or even a month or so from now. Mediation is because they're going to get a lot of information. Oftentimes, in my experience, sets the course of settlement, even if it doesn't settle that day. So, um. I find that it's a very useful process because even if it doesn't resolve, then it is going to resolve shortly thereafter. Okay, so even with zoom mediations, I find that it gives me an ability to bond with my client. And now, listen, if you're a defense lawyer, you know, I don't know if this is as important, but I find with my client it's a big deal because we're going to sit in there together. I'm also going to be able to lay out what's going to happen in advance. And when those things happen, that gives me credibility with my client. It's kind of like if you have your closing argument and you say, listen, the judge is going to instruct you on A, B, and C, and then the jury is sitting there when the judge instruct them and they're like, oh man, that guy is smart. How do you know that? Right? It's the same thing when my client and it's a good event. And listen, I am a complete soft. It's true, but it is a good bonding event with my client. And then if we're in a conference room all day together. All better, right? Mediation can also help with my client control. Because now sometimes your client. You may have some experience with this. Perhaps you have an unrealistic expectations from your client. Hearing it from me is one thing. Hearing it from my partner, another attorney in my office is another thing. But hearing it from a retired judge who says, I've tried like 500 cases, that's a different scenario. And so it can be useful in reining in a client that has expectations that are perhaps unreasonable. And this is the next. The next point is important because, like I said, I really try to take my ego out of all everything I do to the extent I can, but it gets my facts in front of a respected neutral and I want to know. So I am not a Johnnie Cochran or Abe Lincoln or Clarence Darrow. So I want to know what is this respectful, neutral? Think of these facts. And I listen to them. I listen to them. I don't disregard them because they may have a good point. And so I want to know, well, what do you think of that? And I can test drive all my theories and have someone with a pretty big brain take a look at it and give me their opinion. Importantly too. And in my experience on the defense side, they generally don't leave out. They don't leave any. They're not hiding any cards as I am not hiding any cards. So I'm going to get their defenses. Now, look, I've been doing the same type of work for a long time, so I'm pretty familiar with the defenses. I could probably write defense expert reports, but if there's something unusual or weird that will come out because, listen, people participate in mediation. They want to leave with a resolved case. So when I go in there, I'm going to listen very intently and see what the mediator thinks of their defenses and what's what do they think of their defenses, and is there anything unusual or out of the ordinary I wasn't prepared for? Importantly, too, I'm going to find out how how what is the reserve on this case? How what how much money do they have on this file? Because even if it's not what I expect the case to be, at least I'll know. And it'll also kind of tell me, well, where was this written up? What are they thinking? Are we in the same ballpark? Should I consider those numbers right. And I can do all that confidentially and get all this information out. Right. It's very, very helpful. Of course. And in the same vein. It's also a chance to adjust what a reserve is. So I explained to my clients like, listen, there's an amount of money they have to pay on this case. I want to find out how much that is. And at the end of the day, hopefully give you a decision to make. Now, if it's not enough that I would recommend making that decision, it is an opportunity for the adjuster to get my side of the case through a respected neutral. And so I find that perhaps that's a way to adjust how much they have to offer and can be helpful to both sides in this respect. So in this way, there are a lot of pros. To mediation. Now, there are some cons, right? I'd be lying if I said there weren't. Some of the cons are the cost. Now, I generally use retired judges, both federal and state. And look, these guys and gals, they got a lot of experience. And so they, you know, charge some money just off a big bill for mediation. But it's worth the cost. But there is a cost. And that's one part. They generally don't work for free client expectations now. I. I have found, as if you're on a plaintiff side or even on the defense side. Sometimes you tell somebody something and you tell them many times, but that's not what they hear. Now, even though I've told my client, listen, your case may not settle a mediation. Um. They expect your case to settle sometimes. And I find this happens once I have a. Conversation about making a demand when I have that conversation about demands and. You know, settlement ranges and things of that nature. There is an expectation if you're a defense lawyer and you're listening to this, I should tell you, I know it might be helpful for you in your write up to ask a plaintiff's attorney. Well, give me a demand. You should also know that that is a long conversation with a client. I'll touch on it briefly here today, but it can set expectations in the client's mind one way or the other, and it can cause a lot of problems later on down the road if the case doesn't resolve. So that can happen at mediation. And this one, I have had this happen in different scenarios with different mediators who don't use for these reasons. But you can have missteps in the mediation that can cause later problems. Like number one, if you come in and just, you know, tell them, I want the policy for every kind of case, you're setting yourself up for problems. I think sometimes when it comes to making demands, I tell my client, well, if you're looking at a two bedroom, two bathroom house here in Ewing where my office is, and you list the price out $2.5 million, and nobody's going to call you because they're like, well, you know, we're not even in the same boat. You know, if you if you want $2.5 million for that property, you know, there's no point in having the conversation. You can do the same thing with your demand mediator errors. Yes. I've had this. You know, mediator error is really significant. This is why it's important to have someone who either knows your field or has done a lot of these mediations, because a mediator misstep can be a real problem. It doesn't, you know, it doesn't happen with the mediators I use, and that's primarily why I use them. But whether your mediator can, you know, set a hard line or something like that can really make it difficult to resolve your case later. You can get locked into certain numbers, like for example, your, you know, your mediator starts telling things to your client like, oh, well, you know, in your case his X value. And you're sitting there like, okay, now my client heard that and you know, it's a problem or, you know, conveys something to the defense like, oh, you know, well, I can't even get to X. And now the defense adjuster here is like, oh well that's X okay. And then sitting here like I wouldn't accept that number. So you know those kind of errors and getting locked into numbers can be an issue. Of course posturing can be a problem. I call these people chess thumpers. They go in, I'm never going to settle. I'm never going to pay you X. It's just like, okay, okay, I steer clear of that. I avoid that. But going into mediation that way not only can damage your own credibility, but you know, it can hurt your credibility of your client. So, you know, I'm always cautious of that and steer clear of it. But like I said, a lot of these problems can be fixed. If you got the right mediator, you got the right guy or gal. So let's talk about picking that guy now or girl now. This is a critical process right? To me. Your mediator has got to be respected by both sides. And if you're like me and you have a lot of experience in a very narrow area, it's going to be a little trickier to find these folks, right? Because their opinion has to have weight. Now, like I said, we have a court mandated mediation for my particular type of field, and they will assign a mediator to your case. Now under the rules, you can you can elect to pick your own. And that's typically what I do when I get the notice from the court. Sometimes I will call that person and find out. Have you ever done a nursing home case? Do you understand nursing home cases? Because they're not like personal injury. They are not like medical malpractice. They are very different than both of those and see if their opinion will have weight not only in the other room, but to me. So for example, now this is going to shock you. So sit down. The people who are in nursing homes are old, sick and at the end of their life. And I would tell you that as a general rule, our society doesn't care much for the elderly, certainly the ones that have cognitive impairment. And if the mediator comes to me and says, wow, listen, like your person was 94 years old and got this horrendous bedsore, but look, they weren't making any money and blah, blah, blah, I don't care about those things. Right. They don't have those tools. Those tools that this meteor is trying to use on me are meaningless because I say to them, well, why don't you go look at an average verdict for a nursing home case? And guess what? All those people were old, sick and dying, right? So the opinion has got to have weight, not only with me, because I do want what I do want to hear what they have to say about my facts. And I am interested in this. Um, so they have to be have some experience in the field or, you know, have to be interested in their opinion. Um. And so in this way, they, you know, I'm interested in people who are able to are open minded and also they're able to convey the risks because ultimately they're the only person that's going to go into the other room and they're going to tell my story. Right. So I need them to be able to go in there and find out what works. And they're doing the same thing in my room, right? They're going to come in to me and see what works and change ideas and also convey risks, because that's really their job, right? Because at the end of the day, a settlement is simply a risk analysis. And that is it. That's all it is. It's a risk analysis and a risk value. So this person has to be able to go into that room and do it. Now when I give closing argument, I say something along these lines. Listen, I can't be in there with you when you're. Deliberating. But and this is the part I'm going to give my jurors the ammunition they need to advocate for me. I'm going to say, listen, if somebody tells you X, you can remind them that this evidence directly undercuts X, or if somebody says Y, you can remind that person that y is undercut by A, B and C. And so I really want to get the mediator to do the same thing, to go in there and to go and give them the tools to go be able to do that right now, oftentimes, because my bar on both plaintiff and defense side is small, if they do propose mediation and there's a number of mediators that are kind of known players, I will usually let them choose because at the end of the day. Uh, if I, I probably know the mediator. I probably worked with the mediator. Mediator probably respects my office already. They know we know what we're doing. And ultimately, my goal is to let them choose who's going to go in there and convey risks, because the adjuster will clearly listen to them if they choose. If the adjuster chooses, you know, this retired judges mediator, um, they're prepared to listen to them and they're telling me who they're prepared to listen to. And so I usually will go with that. Okay. So let's talk about the statement. Now in my work when I do these, I will prepare a preliminary statement that's kind of the lead of my entire package. I have never mediated without a package that I can think of, even a small one or a minor one with expert reports. But at the end of the day, we're going to talk about my standard kind of mediation package and whether it's a long one or a small one or whatever it happens to be, it's going to have a preliminary statement. Now, and I would say the same thing goes with motion practice. This is probably the most important. Thing that I'm going to write with my mediation statement. What I look to do is the preliminary statement is going to be. A roadmap for the entire case. Kind of like the roadmap did prior to this, to this briefing, but written in a paragraph format. I want to make the overall package as easy as I possibly can, and what I'm going to do is I'm going to lay out what I think are the important facts of this case in a short sentence or a short, maybe a half a page. And it forces me to boil this case down to the most simple. Statement I can for the intersection of standard of care, regulatory violations, specialty statutes, special damages which have in all my cases. But what it's going to do is it's going to orient the mediator to exactly what they're going to read in the next 15 to 30 pages exactly where I'm taking them. And they're going to be very clued in. I think if and I've read this remediation statements or dear sir, madam, as you know, my office represents X and on X date they were, you know, admitted to the nursing home and then started telling the facts to me. Think that's a major mistake because you haven't you haven't oriented this person. What kind of case is this? What are the damages? What should I be paying attention for in your mediation statement? So to me this preliminary statement is very important because now and I've had this happen, they will pull out facts they think are important. Sometimes they're not the ones I thought were important. And I've had some mediators make excellent points and I've written down notes. Sometimes they'll say, oh, well, you know, I thought this was very compelling in the records it said X. And I think to myself, oh yeah, I didn't even, I didn't, I didn't understand how important that was. And now I do. So at the end of the day, this preliminary statement is very, very important. Now, to be clear, this is a simple question that may be hard to answer. And I do the same thing with motions in my file motions. Our preliminary statement I'm going to take standard of care. Complex regulations have a document heavy corporate shenanigans on. I'll boil it down into a statement that's like three sentences, you know, and I think that whoever reads that should be able to understand exactly what this case is about, exactly what the problems are and exactly what the defenses are and why they don't work. Right. I spent a lot of time on this preliminary statement. I this is. I will literally take a walk in my office complex thinking about this particular statement. I will sketch it out in an outline format and try to get it down and take out any unnecessary information that I can. Like I said, it is going to be a guide for the rest of the mediation package, both for writing it for me, because what it does is it keeps me on track candidly, when I prepare for these types of briefings like you're listening to now, I do that roadmap and I print that out and put it on my desk, and then I build my slides from that like an outline. I do the same thing with my mediation statement. I will draft my preliminary statement, I get it right, and then I actually create all the sub or the areas that I want to discuss in there. And my goal is to finish what I started with. Because when you have complex cases like these are it's easy to go off on some sideways direction. Um, I mean, I'm sure you kidding you. I'm sure you've had some brief one time where you start looking at a case, and then you look at another case and another case and you're sitting there like, what guy's name? I'm looking at this case where it's got nothing to do with my original point. The same thing can happen with mediation. Right now. When I do these preliminary statements, I'm going to touch on all the important main points, like I'm going to orient the. A mediator to time period, right? Like it goes from this date till this date, right? I'm going to orient them to the liability. Right. What did they do and what were the damages that it caused? I think sometimes, um. My brain can jump to conclusions, and I don't think I'm alone in that. So, for example, I may have terrible staffing data. That is, the facility was terribly understaffed per the data. And I got this call case and I'm sitting there going like, well, obviously the person is there for supervision and they don't have enough people to supervise. And so these kinds of things happen. But you know, that that, that jump that my just brain just made needs to be spelled out for the mediator. Right? Because I don't want them to look at this and say, well, yeah, I get this, but what's that got to do with this? Right. And, and so that kind of needs to be laid out. Right. And any kind of aggravators or enhancements. Right. Because what I suspect may happen is sometimes a mediator kind of reads my preliminary statement. And they kind of see, well, where is this case going? You know, where should I place this case? And they're oriented to that process. So like, for example, at a deposition I had last week, I had a director of nursing that actually went and changed a medical record to make it seem like my resident came in with a very bad wound, which they actually developed in the facility. That's bad. Okay. That's fraud. That's a crime in new Jersey, and that's a major aggravator. So I will put that in the mediation statement, not get into the weeds with it, but explain that there is chart alterations. Right. If I've had some good admissions, you know, they've admitted that they deviated from the standard of care which does happen. You know, I'll put that in my preliminary statement if there's been helpful rulings already and if and my if I have a great family. Now, I screened for families that I represent because I never want a jury to blame a family that was a no show for someone in a nursing home and say, well, listen, that would never happen to me because I would have been there every day, even though it might have been very difficult. But at any day I will discuss the family briefly in terms of they were there, they were very involved in the person's care and treatment because that's good to know, right? Because candidly, in my types of cases, that can be a major landmine, even though no judge is going to instruct the jury on that, I can guarantee you they're going to. Consider that. Okay. And of course defenses because already know what they are. Either I have the expert reports or I know what they're going to say. I'm going to say, oh, the person's old sick and dying or it's unavoidable. Or they were non-compliant with care. They're really the three big ones. And if these defenses are sometimes like Legos, they kind of snap little noncompliance, little old, sick and dying. Call that a little a little unavoidability. And voila, here's an expert report. I want to undermine those. So, for example, if I have a pressure injury case that documents granulation tissue, granulation tissue, if you don't know, is healing tissue. So I tell people, obviously this is a healing wound. So even though their defense experts are going to say, oh, this is terminal, they're falling apart, blah, blah blah, I'm like, so this is a healing terminal wound, which is a very difficult position, I would suspect, for defense to take in front of a jury. So I'm going to touch on those main important points in my preliminary statement and immediately after. Right. A lot of times with the timeline, I will actually write it out, like from state to state. They're in this hospital from state to state during this nursing home. You know, the fall happened on y date or the fall happened here or whatever it happens to be. So it's very clear. So, you know, and sometimes I've actually used literal timelines like I've drawn out the timeline. This is actually if you're trying a case I've found is a great exhibit. In fact, I had a case where the jury actually asked for my timeline, which was only demonstrative and defense didn't object. So they gave it to him, which. Hey, whatever didn't go well for them, so maybe they shouldn't have agreed, but whatever. Because, you know, people think generally linearly. So I will tell them what is my demand. Right. And he leans Medicare and Medicaid because they are generally damages. Right. So if I have a $40,000 Medicare lien, they need to know that right now. Listen, my office practice is we send that over to the defendant right away. But this is for the mediator. I want them to understand when they're thinking values and damage ranges like that, this is out there and also fee shifting. Or if I file an offer of judgment, which in new Jersey plaintiffs can do, we can file off our judgment saying, hey, we'll take X, but after 90 days it expires, after which point in time you're going to pay costs and fees. So I do file offers of judgment. And I do have a statute in new Jersey, a resident rights statute, which also includes costs and fee shifting. So if I have a mediator, it doesn't really know nursing home very well. I will point this out in the preliminary statement, because I suspect that at the end of my preliminary statement, they're going to have a very good idea what my case is about, a very good idea of where I see it going. And they're probably already trying to see if there's overlaps between them with the defense is saying, and of course, I'm going to name my experts. Some of the experts are, you know, general, they are do a lot of nursing home work. And a lot of times will also. Uh, attach the reports, and I've done my job. My media is gonna have a clear understanding about the cases, about they're going to have a clear understanding of liability and damages. They're going to have a clear understanding of my expectations, and they are going to have all the tools and ammunition to resolve the case. Even if they chose a disregard the rest of it, they're going to have enough to go ahead and go in there and advocate. Now, in terms of the facts, this is the longest part of my package. I'm going to tell my client story in a linear fashion. I do this because it's a natural way of thinking. People generally don't think like a Quentin Tarantino movie where you bounce back and forth or mean, my mediation packages are not artistic statements, okay? I want the person to clearly understand what's going on. So I go with a linear style, um, and the mediator, it will follow my preliminary statement and the mediator will know what to expect. Like I said, I work off an outline and if I'm not sure, I literally start out by this. Do this for opening statements to like once upon a time X happened. You know, it's like a madlib from hell. Once upon a time, blank and then blank happened because the defendant did blank. And then there were real problems, right? Okay. I always I don't want to say generally I avoid overselling it. Uh, I've heard that phrase before. Nice way of putting it was don't just tell it. Don't sell it. Right. We're talking to a mediator. They don't. That's. I avoid that stuff. I avoid that stuff in motion practice. And of course, you know, I was in the service. It was taught to me. There was a practice in federal court of special assistant US attorney, and it it goes there too. I just generally avoid that stuff. And just like copying expert opinions, I've seen people do that. I don't do that. I mean, what am I here for? So it's like, you know, get the boil it down to the substance and tell the mediator, what does the expert say? Right? I mean, he can read the expert or she can read the expert report themselves. So I avoid that stuff. But here's what I do. I want this to make this as easy to read and to understand. So these are people, right? I use what I call military writing. This is writing that I was taught in the service and it was very effective tools. I generally advocate for it. I use short sentences. Okay, I'm not looking to get a Pulitzer Prize. I use short paragraphs, right? I use the active voice, and I have a lot of white space I actually write to. In times where I'm in 14 point font, it's easier to read. Listen, I'm 49 now, so, you know, I'm at an age where I take my glasses off to read now, and so I can appreciate when people may have a difficult time with that. So I use a larger font. Right. Um, and I'm going to synthesize all the relevant facts from the depths that I've taken. The expert reports. Right. Actually cut and paste out of deposition transcripts in there. And I look to avoid what I call the flipping factor. So I don't like doing a mediation statement. It's all words. And then in the back it's like exhibit A, exhibit B, exhibit C, exhibit D, because what happens is it's a break if a person's reading through my statement and now it says, okay, and the person developed a terrible wound, see exhibit A, and then, you know, they got to flip to the back to exhibit A and they're like, oh God, that's horrible. And then they flip back and they're like, what were we talking about? Again? What kind of case is this? I want to avoid that. So to the extent I can embed the things I want the mediator to look at, I embed it, I take a screenshot, I put it in there, I crop it down, I put it, I do this with motions to I embed my exhibits a lot of times if I can. Now sometimes you can't do that. But and like I said with deposition transcripts, I will do that as well. And this is where you're mindful of your transcripts. I will ask them. So that is a deviation of standard of care correct. Blah blah blah. Blah blah blah. Ma'am says a deviation standard of care correct, blah blah blah blah blah. Ma'am, for a third time that is a deviation standard of care. Correct? Correct. And then boom, I take that last one out and that goes into the mediation statement. Right. Because sometimes, you know, even when I was in the chief of justice at a military base and the police would tell me, oh, well, he confessed, I'm like, yeah. Did he you know, I'm like, okay, well, why don't you show me what he wrote? And then we'll talk about whether that's an actual confession or not. So actually put the embed the exhibits in the transcripts with photos. Listen, there's a saying if photos are worth 10,000 words and there's a great truth to that. So a lot of times I have a good photo of my client. This is a person the. And by that I mean the mediator is a person. Right. And showing them a picture of the of your client could be important. This is who we're talking about here. This you know I don't. And I've seen this too where people say miz woman all the time. Look, if if my client was married and have children, she has. Mrs. Jones, this is Mrs. Jones, right? Or what did she go by? And with injury photos as well. Listen, just take the most descriptive ones and show them I'm not going to beat someone over the head with horrendous bedsore photos. Like, here's the here's the sacral wound. And you know, like I said, they're people too. So don't look at it before lunchtime with diagrams too. Like I said, a lot of times, you know, we talk about complex medical procedures like, you know, embolization of the brain bleed. It's like, yeah, they're going to drill a hole in the skull and pull the blood out. Okay. So, you know, just saying it may not be helpful because like I said, these are people, right. So explaining to them what it is now use because that stands for open reduction internal fixation. Now when I started doing this work that's how a hip fracture, I see it all the time. And I remember looking it up, I was like, what is this thing? So, you know, I went and looked and oh my lord, they're going to saw the femur bone in half. They're going to hammer in a metal thing and use some shoehorn thing to jam it back in the hip socket. I had a friend that was an O.R. nurse told me that when they when they when they're doing hip week, they actually put a sheet over the tools. If the people are not sedated when they come in because it looks like a Home Depot. So, you know, showing the mediator. Well, what are we talking about here with this type of surgery. Right. And it's going to expand out the preliminary statement. Ultimately, I'm gonna explain it like people are six years old. I'm going to touch all the important points along the way. I'm going to confront the defense's head on. I'm going to undermine them. And my goal is to give the mediator every single fact they need to go into that room and be like, yeah, but yeah, but and yeah, but. Right. And sometimes, like I said, it might not be what you think. Sometimes they will pull out facts which they think are really powerful that I hadn't thought about. Now there's sometimes special sections that may get their own little part of my mediation statement, like. So, for example, we have a new Jersey Nursing home Resident Rights Act. And so ultimately, sometimes I will explain to the mediator, if they're not familiar with nursing home, I'll say, okay, by the way, you should know this statute exists. I can get compensatory and punitive damages under it. Oh, and it gets me costs and fee shifting. Right. And that could be a important point for them to make in the other room. So I will have a special section just on that if they are new to my kind of work. Also, when I have a lot of corporate and financial issues or staffing data, that's particularly bad, I will have a separate section. Say the nursing home was understaffed, it will be titled that way, and then I just run through and explain it like they're six years old. Well, here's what the data says and here's what they're supposed to do and blah, blah, blah, right. And so a lot of times I'm going to have a special section where it makes sense. Right? So if I really and when I say splitting ideas makes sense or is logical, what I mean is where I want to draw special attention to the specific or discrete or singular area of my case. I sometimes will split up between liability and damages. Sometimes it makes sense to kind of put them together. Other times it makes sense to separate the out, right? They are two separate findings on a verdict sheet. So I want my mirror to be able to do that as well. And sometimes these may be things other than pain and suffering. So for example there's some cases I do actually have a life care plan or a financial expert for financial damages. But sometimes the damages are dignity damages and hard to quantify. So for example, I mean, it's hard enough to quantify pain and suffering, if not impossible. But at the end of the day, you know, perhaps, you know, like I can think of one case in particular where a husband and wife in the same facility, husband breaks his hip, gets a terrible bedsore and dies. The wife only knows the husband. And they say to the staff, look, don't tell mom that dad died. Okay? She doesn't know because they would go over there and visit her and she'd say, hey, where's dad today? And she'd. And they would tell her, I'll help you over later. And she had cognitive impairment, so she'd forget. And of course. One of the nurses like, oh, I'm so sorry your husband died. And she said, what do you mean? And he says, oh, well, you know, Jim passed away and we're going to put up a little sign for him. And she died the next day. Now, look, I know why she died, and you know why she died. And I want that maybe out there as a damage for attachments. Like I said, I'm generally these are documents that don't embed well, like expert reports or if there's a the Department of Health investigation and they find serious problems that goes into that because they can be long documents, maybe 25, 30 pages. And if I went the mediator to consider, I'm going to put that off to the side. And I'm going to explain to them it's attached to this exhibit. But here's the key findings on it. If I can't shorten it now, when it comes to damages, I think this is something at least I'm prone to overlooking sometimes because I'm like, look at that pressure injury. That's terrible, right? It's a giant hole in a person's back. And my partner Mark, who is a medical malpractice fellow, he'll be like, what is it? Documents pain and suffering. I'm like, oh God, you mean I got to go look at the hospital chart now? But that can be important, right? Where a document is a document in the medical records. Do they document pain using the operative ports to explain, you know, what happened to this person? Um, you know, if they're on pain medications, you see them on tramadol. You see them on oxycodone, if you see them on morphine. Right. And family testimony from the family depositions, which are usually what start my discovery out, laying those things out. You know, mom was in a soiled diaper for 45 minutes. Multiple times. I go in at 2:00. She's still in her nightclothes. Like, that's a dignity issue, isn't it? And you know, if I was sitting in a in a soiled diaper for 45 minutes, I'd be pretty angry about it. And of course, like I said, if you have photos there, that might work. I also generally can discuss the before and after. Right. Um, you know, one way I've done this before is, you know, how many doctor visits before this happened? How many afterwards? Right? Um, these are if the person survives, I mean, these are life altering injuries, like. Okay, so before they did X, Y and Z and then afterwards. Now this is all they can do because that is not meaningless. That's important stuff. I mean, that's really the damage, right? In my case in particular, the families don't want. Money. It's an awkward thing about my job is I can't give them what they want from the first appointment, right? But trying to not skip over that and not take it for granted, the media is going to get it, like explain out these issues to them. Of course, like I said, if I have liens that are portable or that are damaged, I'm going to include that because that's a damage that I need to consider that. And then if I have costs right at the end of my case, like if I have fee shifting, if I have an offer of judgment that expired, or I have the resident rights statute, then that's going to factor in preparing. My client, as I said, is going to be a long appointment. I try to make them as comfortable as possible with the process. You know, I'm going to explain the process. I start with any questions they have before I start giving off my ridiculous laundry list of issues. But I do tell them it's important to understand that you're going to hear facts that you do not like because a lot of mediators will give a preliminary statement, which is a neutral statement, and they're going to take both sides. And I tell them this in advance. I also tell them like, listen, if you if you take issue with anything, just write a little note down and we'll talk about it later, because there's going to be ample time to discuss this privately as opposed to, you know, doing it in the open like that. You know, if my client's been deposed, the defense knows who they are. I generally don't like them to make statements unless they absolutely want to, but I generally discourage that. And I also tell them in advance, by the way, and this is any settlement negotiation. The first offer is they don't expect you to take. And before I started doing that and there was like 25,000 and I have to unscrew them from the ceiling, I'm like, just hang in there, right? But I always prepare them for the opening offer because that can be, you know, difficult. I tell them, look, every case has defenses. You're going to hear things you don't like. And like I said, early offers are not expected to settle the case. Um, you know, and these appointments are important because you have to be on the same page with your client. Right. What do you want? Do you want a trial? Right. Let's discuss the settlement range. Let's discuss the demand. And I give them reasonable expectations of what a settlement at X really means for you. Because we're going to take out attorney's fees. We're going to take out costs. You got to pay Medicare X amount of dollars. This is what this means to you. Because I can assure you, you do not want to be having that conversation after you get the check. The mediation itself, like one important thing is I avoid opening statements. I think these are a horrendous idea. I don't know where they teach us in mediator school. I can tell you right now, unless it's like a key part of it or you really want to do it. Adjusters are also people too, and you're looking at a mediation to bring people together to kind of see overlapping things and starting out your case by polarizing it, by telling them all the things they did wrong and how you're going to kill them and all these other issues, I think is just a bad idea. So I almost never do it. I usually have listened to the mediator right there, the only person in both rooms. I'm aware of the fact that even they can make mistakes. This is a great book. My mom used to read to me when I was a kid. Sometimes even mothers make mistakes, you know? What's that scratching on the window? Is it a branch or is it a zombie? Who knows? But you know, I listen to what these folks have to say, right? And of course, be patient. It can take a while. I tell my clients, bring a book. You know, in my office I have several conference rooms and they have TVs in them. And sometimes I pull my client. I'm like, go put Netflix on. We're going to be a while. Right? At the end of the day, I try to take my ego out of it. I can't control adjusters. I can't control defense attorneys. Don't take the offers personally. Reasonable minds can differ. But my job as a plaintiff's attorney is to change the opinions in there to the extent I can. And at the end of the day, hopefully my case resolves. Like I said, if not, it's not the end of the world. You are am closer than I was before they were at zero. We were at the demand. Right? We're going to be closer and my client has a better understanding about their case. In fact, I had one who the mediator was so effective, my client was like, oh my God, I was really worried about this. And I was like, I'm not as worried, but I'm glad you're listening. I have the neutrals position and I know where my weaknesses are. And like I said, I'm closer to settlement than I was beforehand. Here's a roadmap of what we talked about. You know, who am I and what am I talking about? The pros and cons of mediation, picking a mediator. The statement both the or the preliminary statement, the facts, the exhibits, damages and special sections. We discussed preparing the client and the mediation itself. Listen, if you have any questions, I'm happy to take them. Um, ultimately, I you know, my email address is on here, but I much prefer a phone call. I hate email, I get tons of it. I'm sure you do too. And it may not get to my inbox. It may get shunted into my. Uh, you know, my junk folder. So if you have questions or comments or concerns you want to discuss with me, please don't hesitate to give me a call. And if you do, send me an email and I'll get back to you in a day or two. Just know that I. I probably didn't get it, so give me a call. Well, thank you for your time and attention today. It doesn't look like we have any comments and so appreciate it. So good luck and going in your mediation. Wish you the greatest success. Thanks.