James W. Ford is a founding partner at Ford & Britton P.C., a firm that handles appellate law. Over the years, I’ve faced Jim in court as an opponent and heard his cases brought before me as a judge. We even mediated cases for our respective clients together.
I met with Jim to talk through some of our more memorable experiences — in particular, cases where an attorney, judge or mediator took steps that made it harder for sides to reach a resolution. The interview has been edited for clarity.
His client had fallen on some stairs when he was a city inspector. He made a big show in the group presentation in front of everybody, including his client, that this was the “best” slip-and-fall case that he had ever seen. When we separated, the judge said, “Well, doesn’t that make it a little hard to try to settle your case when you’ve just told your client in front of everybody that this is the best slip-and-fall case you’ve ever had?”
He had overstated his case that it was the best ever, because it wasn’t so great. He had a client who was hard to control, inconsistent and claiming he was virtually a cripple. When we got down to the money the plaintiff’s attorney was recommending, his client walked out and left the mediation.
So be careful what you say in the opening statement. If your client is in the audience and hears things that make him not want to settle the case because it’s so good, that could be a danger.
Panter: Good point.
Ford: Another case involved multiple parties, a construction case. Peoples Gas was one of the parties. Liability was hotly contested among the defendants. It involved a big fire that erupted after a gas leak. Some of the defense parties were harder to deal with than others, so we had group sessions and then separate sessions.
Unfortunately, there was a communication problem where the judge didn’t accurately convey the nature of the discussion. In other words, there was a discussion along the lines of “OK, we would offer $100,000 if it settles the case.”
The judge came back and said that he had conveyed an offer of $100,000. This really caused all the parties to get upset because it was not what was intended to be conveyed.
The mediator has to be very careful — especially when you have multiple parties, you have to keep track of who’s saying what and exactly how it’s conveyed. The lesson I learned was to go over it twice to make sure that it’s going to be conveyed the way the parties want it to be conveyed.
Panter: Mediators have to be super careful.
Ford: Years ago, a judge who had been successful in pretrials went to do mediations. He talked the whole time and didn’t get input from the parties, he just talked too much. I don’t remember if it was war stories, but it was not helpful to move the ball and ended up being, pretty much, a waste of time.
Panter: It did not get the case settled.
Ford: I had someone, the other side, walk out of an all-day mediation where the mediator, again, talked too long about the facts of the case, going “your version, your version,” went back and forth through an entire morning and into the afternoon without ever getting to demand and offer. It was very much a disputed case and the plaintiffs’ lawyers were hotheads — highly contested issues and their guy was, in my opinion, lying about some really significant things.
They just packed up and left in the afternoon, just walked out, because not enough was happening in their opinion.
Panter: Don’t wait too long to start.
Ford: I like to pick mediators who’ve been plaintiffs’ lawyers, because you figure they have a perspective and they also have credibility with the other side. They’ll have credibility with me, too, about evaluating a case if they put in their 2 cents. It can be really helpful. Sometimes the same kind of guy could be … how do I put it? Maybe forceful with the other side. I’ve found after some success and some failure that forceful has helped me settle a few cases where either the plaintiff’s case is not that good and/or the plaintiff’s lawyer maybe is not as experienced, confident or doesn’t have control of his client. In those instances, having a hammer, saying, “This is what you gotta settle for,” can be helpful. Sometimes that firm hand helps settle cases. I’ve settled a number that way with that type of mediator.
Two cases that I’m thinking of settled later on. One was after experts. The plaintiff’s lawyer said, “Let’s see what the experts are gonna say,” then he got the lay of the land and then he agreed to go back to mediation.
Panter: OK, give me another example.
Ford: In another case, the plaintiff’s lawyer was playing it very close to the vest, was a good negotiator. We got to an impasse because of insurance money. The case ultimately settled because I floated an innovative way that was different from what ordinarily might work in a case.
Panter: What did you do?
Ford: Timed payments. Payments over time from an entity as opposed to an insurance carrier, unstructured.
Panter: That is something to keep in mind.
Ford: Another mediation was long and disorganized and the mediator came to talk to us after being with the plaintiff for a really long session. At the end of the conversation, we said, “Well, what’s the demand?” He said, “Oh. I didn’t ask him.” We said, “Well, do you think you could ask him?” He said, “Yeah, OK, I’ll go ask him.” He did go ask and came back, and there were a couple more exchanges where the mediator didn’t have a clue of what the next step should be.
Panter: Mediator not being helpful.
Ford: Another problem in mediation is a mediator who thinks he’s still a judge and can yell at you. He just spent the time yelling at me in front of my client about how we had to settle the case, and how terrible this was, and how terrible it was going to be and you’re going to lose at trial. He wasn’t a judge anymore. It was very counterproductive. We never settled the case.
Panter: Mediator thinks he is still a judge.
Ford: In an even worse case, we had a mediator who took that kind of really hard line approach saying that, “You’re paying me to evaluate this case, and you better pay $X to settle this case, ’cause that’s what it’s worth in my opinion.” We said, “No, we’re not gonna pay that. I’m not gonna offer that,” and he kept on, in different sessions, coming back and yelling about trying to settle the case. He was out in the hall on the telephone around the corner and we heard the mediator tell the other side that the adjuster was a chicken … Pat, the adjuster, came around the corner and said, “Well, if you think that, you should say it to my face.” At the end of the day, the mediator told Pat how unprofessional he was!
Panter: In some cases, the mediator’s attempts delay settlement, and in some, it sounds like they just killed the settlement opportunity.
How about where a plaintiff lawyer makes it hard to get a deal?
Ford: I have had mediations where the settlement demand, once we get to mediation, is higher than what it was before we got there. Which is a good way to scuttle the whole thing and it has scuttled some.
Panter: How did you handle that?
Ford: My usual approach would be to ignore the new demand and go with the old demand and say to the mediator, “Hey, that’s the demand. That’s what we’re working with. We’re not working with some last-minute increase.”
Panter: Have you ever had somebody renege?
Ford: I’ve had a plaintiff say the case will settle for $X today if it’s offered, otherwise we’re going back to our demand. That’s an honorable way to do it. I can’t think of a time when I’ve had somebody just take away a demand and increase it for no reason.
Panter: What about liens?
Ford: I’ve had cases that don’t settle because someone with the lien is unreasonable. It was a big problem in a recent case. Ultimately, I reached a deal with the plaintiff’s lawyer and he kept working on that part of it.
Panter: He made the deal with you even though he hadn’t finished other aspects?
Ford: Yeah, we had a gentleman’s agreement that we would pay $X and that would settle the case, and then he wanted to continue to work on other aspects of the deal, which was OK with us. Ultimately, he did get them to change their point of view.
Panter: Have you ever had a last-minute item like confidentiality, date of payment, waiver of prompt pay statute — anything like that scuttle a deal?
Ford: Yeah. Confidentiality has sometimes been an issue. Most of the time it’s the plaintiff’s lawyer wanting to show his recovery for marketing purposes which is understandable. If there are overriding confidentiality reasons we’ve been able to work out the wording of the disclosure where it would be on the plaintiff’s website or in the Jury Verdict Reporter not identifying any of the parties, but maybe identifying the nature of the case and the amount it settled for.
Panter: Other issues preventing a deal?
Ford: We had a case where the claim manager took a really, really hard line on a very serious case. It was a guy who ended up in a wheelchair and we found this hard approach just wasn’t going to fly once we got to the mediation, and that the plaintiff’s expectations were way, way, way more than his authority. Ultimately the case was settled the second go around after a re-evaluation.
Panter: Do you always know what your client’s going to settle for?
Ford: No, not always. Sometimes they tell me. Sometimes they don’t.
Panter: Jim Ford, tell me something about you that people don’t know? Other than people think you’re actually Clint Eastwood.
Ford: I wish I had his money. I like the litigation business. I find that you can deal straightforwardly with most lawyers. There are very few people you can’t and you find that out eventually. I like dealing with adversaries who are good, are competent at what they do and will give good opposition but within the rules and the bounds.