What Exactly is “Can-Do” Evidence? An Example From the Defendant’s Side

In my last post, I provided a simple example of how a plaintiff’s attorney can engage in positive negotiations by making a “can do” presentation at a mediation.  The rationale behind this “can do” approach is it helps the opposing party to identify, appreciate, and manage the risks they will face should the case go to trial.  The example I gave was of a plaintiff’s attorney taking a few minutes to summarize what they can do - that is, what evidence they can present - to show the defendant faces a substantial risk of a liability verdict.  The key to this approach is to focus on summarizing credible, coherent, and relevant evidence that you can present at a trial to prove a particular claim or defense.  It is, after all, that evidence that creates risk, and risk management - not compromise - is a core objective in positive negotiations.  By contrast, an attorney who begins a mediation by summarizing what they believe happened to cause the dispute, or what they think a jury will do at a trial, is simply giving an opinion or making an argument.  These expressions of opinion and argument tend to trigger conflicting opinions and counterarguments, resulting in exchanges that provide little in the way of substance that can help the parties negotiate their differences.  By contrast, a clear and polite evidence-based presentation of risk invites the parties to engage in substantive risk appreciation and risk management - especially if the mediator is actively promoting the mediation as a risk management exercise.  The parties can take positive steps to manage their respective risks instead of feeling pressured merely to compromise because that is what someone is asking them to do.  In this post, I give a simple example of how a defense attorney can also use this “can do” approach - instead of argument - to draw attention to an opposing party’s risks, this time with a focus on the issue of damages. 

As before, my hypothetical event involves a car collision.  The plaintiff, Mr. Peterson, had stopped his car at an intersection governed by a stop sign.  The defendant, Mr. Davidson, had been driving behind the plaintiff.  Although he braked when he saw the Peterson car had stopped, Mr. Davidson failed to stop his car in time and it struck the rear of the Peterson car.  The speed of Mr. Davidson's car at the moment of impact was modest, however, resulting in the plaintiff’s car being pushed forward a few inches at most.  The damage to both cars was also modest.  Mr. Peterson complained of pain in his neck and upper back, but diagnostic imaging studies did not reveal any bone or joint injury or any visible tissue damage.  A physician diagnosed a soft tissue injury and prescribed eight weeks of physical therapy.  That was the extent of Mr. Peterson’s treatment.  He had medical bills for his visits to his doctor, the imaging studies, and the physical therapy.  During discovery, Mr. Peterson testified he had experienced pain in his neck and upper back on occasion in the past, and his medical records documented he had told his doctor about such pain.  His prior treatment for that pain had consisted of over the counter pain medications only.   

Based on this scenario, defense counsel could begin a mediation by arguing a jury is going to question whether the plaintiff had any injury, or whether this collision caused any such injury.  They could point to prior verdicts to support that argument.  They could also point to cases such as Provencher v. Faucher, 2006 ME 59, in which the Maine Supreme Judicial Court upheld a jury verdict for less than the plaintiff’s stipulated medical bills incurred after a similar collision.  Nonetheless, verdicts and appellate rulings have gone the other way.  In Gilmore v. Cent. Me. Power Co., 665 A.2d 666 (Me. 1995), the same court upheld jury verdicts based on neck, back, and shoulder "sprains" that were many times higher than the plaintiffs’ medical bills. As with any trial, there were various factors that may have impacted those verdicts, some of which are distinct from the hypothetical I provided above.  But some of those distinctions underscore the unpredictability of trials and the limits on what any attorney can do to manage what happens in court.  

At the mediation stage, however, the parties do have an opportunity to manage how their case will be resolved - but the process calls for a different and more subtle kind of advocacy.  No one “wins” at a mediation, so is there really anything to be gained by presenting a potentially “winning” argument?  Perhaps more to the point, is there anything that could be lost by making such an argument?  If so, is there another way to approach the mediation that actually enhances the defense’s ability to negotiate an acceptable resolution?

Roger Fisher and William Urey, authors of Getting to Yes; Negotiating Agreement Without Giving In, argue that you optimize your negotiating power by developing your “best alternative to a negotiated agreement” (or, “BATNA”).  For disputes that are in litigation, and therefore heading to trial absent a negotiated settlement or summary judgment, each party’s BATNA is very much centered on the evidence they can present at that trial.  In a mediation, the more clearly you articulate the evidence you can present at trial, the more clearly you articulate your BATNA.  Said otherwise, the more clearly you present what you “can do” at a trial, the more clearly you spell out the risk the other side faces should they opt for a trial instead of negotiated resolution; you are giving the other side something that is both substantive and significant to think about.  In negotiations, that is much more persuasive than any opinion or argument regarding what might happen at a trial.  It is also less confrontational, which invariably facilitates meaningful negotiations. 

With this in mind, the defense in our example above could focus their mediation presentation around their BATNA - that is, what they can do at trial.  That might go something like this.

We appreciate the evidence you have summarized today, and we recognize you have put together a strong case for proving liability.  Just as your attorney, Mr. Peterson, has demonstrated they are 100% committed to doing what they can for you, we are 100% committed to doing what we can for Mr. Davidson.  This is no reflection on you.  It is simply how this process works, and it only works if each attorney gets to do what they can for their client.  

Our focus in this case is on the evidence we can present regarding your claim for damages, which I will explain.  

First, I can present evidence that this accident happened at a very low rate of speed and with very little force.  I can show this first through Mr. Davidson.  He will testify he was indeed aware there was a car in front of him, and that he knew that car was approaching an intersection governed by a stop sign.  He will explain that both you, Mr. Peterson, and he were slowing down as they approached that intersection.  He admits, as your attorney noted, that he then momentarily looked to his right, at a van that was going in the opposite direction, but he will testify he had his foot off the accelerator and his car continued to slow down.  He will explain that as soon as he saw your car had in fact stopped, he hit his brakes, slowing further, but not enough to avoid the accident.  Nonetheless, his air bag did not deploy, he never felt any pain from the impact, and he did not at any time seek or need any medical care.  I can also show, with this photograph that Mr. Davidson took soon after the accident, that there was barely any visible damage to his car as a result of this accident.  

I can also show there was very little damage to your car, Mr. Peterson, both through your testimony but also through the testimony of Mr. Appleton, who appraised and photographed that car the following day.  Mr. Appleton will testify that damage was limited to a crack and some paint scuffing on your car’s rear bumper, as seen in this photograph Mr. Appleton took the next day.  Mr. Appleton saw no damage to the frame of your car. 

Second, I can show through both your testimony, and through your medical records, that you had in fact complained of neck and upper back pain before this accident.  I can show through your medical records, and through the testimony of your physician, that these are the same areas where your reported pain after the accident.  

I have deposed Dr. Smith, the orthopedist who saw you after the accident.  I can, through his testimony, present evidence he had x-rays and an MRI taken of your cervical and thoracic spine soon after the accident but he saw no discernible injury from those studies.  Dr. Smith testified you were in no acute distress at any time when you saw him, and that he could not discern any abnormalities when he examined and palpated your neck and upper back other than some mild muscle tightness.  I can show, through Dr. Smith, that you had no symptoms of numbness or tingling, and that Dr. Smith did not see any indications of any neurological injury.  Dr. Smith has testified he ended up diagnosing a soft tissue injury, but through his testimony I can show he reached that diagnosis almost exclusively based on your reporting of pain.  Dr. Smith has also testified that reporting of pain falls under the subjective portion of his medical records, and it is not part of the objective observations he recorded in those records.   

I can also show, through Dr. Smith’s testimony, that he saw no need for any neurological consultation or surgical intervention, and his only suggested treatment, again based on your reporting of pain, was a period of physical therapy.  Although, as your damages expert in this case, Dr. Smith intends to testify this accident caused you a soft tissue injury that required physical therapy, I can show through his testimony that your prior reporting of pain in your neck and upper back indicates you had some level of neck and upper back injury before this accident.  

Finally, I can show through your medical records that you completed the physical therapy Dr. Smith prescribed, missing two appointments but attending all the others, after which you reported only occasional and mild neck pain and upper back pain.

The primary audience for this presentation is, of course, the plaintiff, as it is he who will decide whether and how to reach a negotiated resolution of this case.  With this presentation, the defense counsel has communicated several things to the plaintiff - as well as to his counsel and the mediator.  First and foremost, just like the plaintiff’s counsel in my earlier example, the defense attorney has demonstrated they have carefully examined the documentary evidence, and they have carefully developed the testimonial evidence.  That is, the defense attorney has communicated a high degree of professionalism - which is itself a risk for the plaintiff.  Second, defense counsel has highlighted just how sparse the damages evidence is.  Third, without actually expressing any personal opinion or argument, defense counsel has implied that limited evidence may not be enough to persuade a jury the plaintiff suffered any injury that requires any significant compensatory damages.  They have even suggested, without actually saying it, that a jury could go so far as to conclude all the plaintiff’s complaints of pain predated what was evidently a minor collision.  That is, the defense attorney has articulated what they can do at a trial that poses a risk for the plaintiff - that risk being a jury determination of little or no injury.  

The defense counsel has also laid out an evidentiary foundation the mediator can use in discussing risk and risk management with the plaintiff and his counsel in a separate caucus - just as the plaintiff’s counsel had done in my earlier example.  In the initial caucus, the mediator will first ask the plaintiff and his counsel if they agree the defense can indeed present this evidence.  An additional question will be whether the plaintiff can present any evidence that contradicts or otherwise undermines the evidence the defendant just summarized.  If there is no real dispute the defense counsel can present this evidence at trial, and the plaintiff cannot present any significant evidence to the contrary, the mediator will then discuss the potential impact of this evidence. That is, the mediator will coax the plaintiff through an appreciation of the risk this evidence presents.  He will then move on to suggest a next step in the negotiations that can help the plaintiff manage that risk.  

It is not unusual - or even unreasonable, given how the media reports on trial verdicts - for plaintiffs to have high damages expectations.  It can be a shock for them when they learn the defense assessment of those damages is much lower.  With this kind of “can do” presentation, however, the defense counsel has at least laid out the substantive basis for their damages assessment.  They have provided substantive reasons why their offers may not be as high as the plaintiff might have hoped.  In so doing, they have provided an opportunity for the plaintiff to examine - with the help of the mediator - what the defense can do at a trial and how that may impact a verdict.  That is, they have in fact taken steps to help the plaintiff make his own appreciation of the risks he faces with a trial, doing so in a forum - a mediation - where the plaintiff can take his own steps to manage those risks.

As before, this is a very simple example using a very simple hypothetical.  No dispute is the same, and many are much more complex than this - making the risk appreciation process much more challenging.  Nevertheless, by embracing a positive negotiation approach, and by focusing negotiations around what each side can do should their case go to a trial, lawyers provide the parties with the information they need to identify, appreciate, and manage their respective risks.  They are advocating for their clients, but they are doing it in a subtle, evidence-based, and nonjudgmental way that nudges each side toward a reasoned appreciation of their respective risks.  They can then manage those risks, with the added help of a mediator, without feeling they are compromising or giving in.