Creative Litigation or “Making Lemonade From Lemons”

Recently we completed a consensual arbitration in a personal injury case. Settlement discussions had stalled, with the defendant offering $40,000 and us demanding $100,000 (the policy limits). We were stuck because the defendant firmly believed that our client’s serious and permanent medical problems were not caused by the tortfeasor’s negligence, but rather because of pervasive degenerative disc and degenerative joint disease. On the other hand, we believed that the crash caused most of her problems. The out of pocket costs of a trial would be at least $10,000 – $15,000 for the plaintiff.

In order to break the log jam, we proposed an arbitration with a confidential “over and under” agreement by which, no matter what happened, we could not receive less than their $40,000 offer, but likewise, the tortfeasor’s personal assets would be protected from a judgment that exceeded $100,000. It also save our client the trial expenses.

The result of the arbitration? $98,740. A win for us, a win for our client, a win for the tortfeasor, and a lesson to the insurance company about the value of our claim. Making lemonade out of lemons.

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