Befriending Your Adversary: Catching Flies With Honey

Catch More Flies With HoneyNegotiations skills are a subrogation adjuster or attorney’s best friend and the most essential skill that can be developed for maximizing the profitability and recovery potential of your claims. Less than 1% of all subrogation claims end up in litigation. The vast majority of claims between 95% and 99% are resolved prior to suit being filed. Of the small number of claims that are actually litigated, somewhere between 2%-5% will actually go to trial. By expanding your skills, and becoming a master negotiator, you will be building on a skillset applicable to most every part of your job. As a skilled negotiator you will maximize the likelihood of early resolution, benefiting from the time value of money, limiting the potential for defense verdicts, and increasing productivity within your company. This article is the first in a series I’ll be writing on the topic of subrogation negotiations.

Subrogation negotiations take many forms based on the merits of the specific case and the personality of the individuals involved. Despite the difficultly of hard and fast rules in negotiations, there is no reason why subrogation negotiation should need to be confrontational or overly contentious from square one. Sometimes you can catch far more flies or dollars by setting out the honey rather than pulling out the fly swatter. Far too often adjusters and attorneys immediately move into transactional bargaining without first attempting to establish a relationship with their counterpart.

This is not to say that you should give in or not zealously advocate for your claim. You should be fighting for every dollar and taking no prisoners, however negotiations become much easier when your adversary is working towards the same goal. The farmer’s life is much easier when the cow voluntarily, with a confident step, walks into the slaughterhouse.

As we all are aware, insurance adjusters have quotas and various incentives which may cause added incentive for them to resolve a certain quantity of claims. Your goal should be to become the quota-buster! When the adverse adjuster is running through files and looking for cases to resolve, I want them to immediately think of your claim. I want them to agree to pay 100% of your claim simply because they appreciate you and would love to close this file.

How Does This Happen?

Let me give you an example of how this approach works in real life. Last year, I was retained by an acquaintance, let’s call him Mike, to pursue a bodily injury claim following a car accident. Mike was rear-ended by a semi-truck when driving home from work. Following the accident, Mike did not seek medical treatment, instead choosing to go home to get some rest. The next day he woke up with extreme neck and back pain and visited the local urgent care. He was diagnosed with neck and back strain and other soft tissue injuries.

Over the next 5 months, he had some additional diagnostic work performed and went to physical therapy. In the end, Mike had approximately $8,500 in medical bills arising from the accident. He was unemployed at the time of the accident and did not suffer any wage loss or other damages. I would note that Mike had significant pre-existing injuries and was previously undergoing treatment and pain management for both back and neck pain. Accordingly, there was a very strong chance that the injuries were all pre-existing and that the exacerbation was very limited.

Mike was done treating and approached me about settling his case. He told me that he would be happy to get $10,000 from the adverse carrier. I had my marching orders and the ball was now in my court to attempt to get as much as possible for Mike. I could easily have demanded the $10,000 and likely got it, but where is the fun in that? Why leave anything on the table? Accordingly, I called the adverse adjuster, whom I had never previously worked with, aside from a few calls on this case, and our conversation went as follows:

Ashton: Hey Barbara, it’s great to have the chance to speak with you again, what’s new?

Barbara: Not much Ashton, how’s it going?

Ashton: I’m great! How are John and Marry (her children)?

Barbara: The kids are great. John is on a traveling baseball team and Marry is playing volleyball. Crazy hours and commitments, but I guess that’s what we sign up for!

Ashton: Agreed. My daughter is still playing on her volleyball team, so I know how it is. I love watching her play and it’s really amazing when they start to get competitive. Now let’s get onto the exciting stuff! I just spoke to my client and he is willing to settle his claim today for the right value.

Barbara: Is that right?

Ashton: Yes! And honestly Barbara, I am ready to enjoy this bright summer day knowing that I got my friend and client an amazing settlement. I also would assume that you have a huge caseload and would love to get this file closed and off your table. I can already envision sitting on my porch, cracking a beer, and thinking about how happy Mike is about the huge settlement offer that he accepted. How about you help me accomplish this?

Barbara: I think that we could make something happen. How much is he looking for?

Ashton: I am really not sure. What are you willing to propose?

Barbara: I could offer him $40,000? [note that this is 400% of what the client wanted, and way more than the case was worth].

Ashton: $40,000… that’s a start, but honestly, I need something more…. What about $60,000?

Barbara: You are a hard bargainer, aren’t you? I could do $50,000.

Ashton: What if I could sell Mike at $55,000, would this be doable?

Barbara: For you I can do it, make the $55,000 happen and I’ll get a release to you this afternoon.

Bam! After a 4-minute telephone call, a $10,000 case is resolved for $55,000. I was then able to call my client and tell him that I got him an extra $45,000 or 450% more than he thought he would be receiving. Did I get this because his case was worth it? Absolutely not, this was a soft tissue injury, with pre-existing issues, and no other damages aside from the $7,500 in medical bills. How did we get the additional 450%? By forming a relationship, causing the adverse adjuster to want to resolve, and asking for it. Also, note that I had taken notes on prior conversations in order to remember her children’s names and I had spent my time forming a relationship rather than simply conveying the strengths of my case (which was previously done through a bomb-throwing demand letter). I had used honey to catch the fly and my client found extreme benefits from this.

It is possible that you are noticing the ethical and business dilemma posed by a liability adjuster paying claims just because they like the subrogation attorney (me). Frankly, you are probably right, as this adjuster should not be making payment based upon personal connections. That being said, there is nothing unethical about you taking full value on your claim and maximizing the recovery for your client or carrier. Whether you like it or not, somebody will be making these moves and collecting these dollars, the question is whether that somebody will be you.

Win/Win

Time To NegotiateSimilarly, your negotiations should be structured and premised in a way to make the settlement a win/win for both parties. I am not saying that you should be giving up value in order to allow them to “win” more, but instead that you should be structuring your argument in a way that allows you to sell their acceptance as a mutual win. Why would your adversary accept an offer that is solely beneficial to you? You need to give your adversary a good reason to give you the win. Give them the ability to justify the 100% payment as a win for them. Ask yourself how they could sell this settlement to their supervisor if the claim is later reviewed?

In order to accomplish this, you will need to take the time to consider what your adversary would consider a victory. How can they consider it a win to pay the full value of your subrogation claim? The strategy here is largely found in semantics, psychology, and your ability to get creative. For example, you could stress the value of early resolution, their ability to move on to focus on more defendable claims or focusing on their cost of defense and how they will be quickly incurring the full value of your claim in legal fees once suit is filed.

Let’s go back to the example of Mike above. During our conversation, I mentioned how Barbara would benefit by being able to take this case off of her plate and close the file. I also phrased it in a way where she would be able to feel good and content in making me and my client happy by her taking this course of action. She can free up her time while also bettering the life of an injured person and his attorney, how could she say no to that!

There are countless ways in which you can manipulate your argument to phrase things in win/win terms. In short, you should put your best foot forward by immediately developing your theory of liability and also formulating your argument in terms of how your adversary will win by accepting your argument. So, take your time to be creative, think strategically, and give your adversary the necessary arguments to justify the results.

The Industry Is Small and Relationships Matter

The insurance and claims industry is relatively small, and it is common to work with the same players. So, by developing these relationships you will be in a great position to not just maximize recoveries today, but to sow seeds that will blossom into the future. This is especially apparent and profitable if you are dealing with claims against known players or self-insured third parties who have a small claims team. As an example, most manufacturers who internally handle their product defect claims have teams with a just a few claim handlers who deal with hundreds of claims. These cases are ripe for relational negotiations and maximizing recoveries through the building of personal connections.

Without naming the specific companies, as I do not want to damage any of my relationships, I can assure you that there are many manufacturers, of the most commonly failed products, who are prime targets for this approach. I am on first name basis with the adjusters who handle claims for the top dishwasher, water-heater, and dehumidifier manufacturers. I have notes on their hobbies, their children’s athletic activities, and anything else noteworthy that they have referenced in other conversations. Accordingly, with these relationships, I am able to settle many cases which would have otherwise been denied or litigated.

Simply by developing relationships with common players and leveraging these connections, you can greatly increase recoveries and the speed by which payment is made.

Tips/Tricks

There are many tips and tricks that can assist you in building these relationships and catching more flies with honey. There are countless books and research studies on the subject of relationship building and personal connection strategy. However, the following are a few of the multitude of tips worth considering and implementing in your negotiations in order to build strong personal relationships.

  1. First Impressions Are Everything – First impressions last whether they involve an in-person meeting, over the phone conversation, or by email. Be sure that you give off a strong first impression to your adversary. You want to appear kind, firm, and knowledgeable of the claim and general legal issues.
  2. Start With Humor – A great way to open somebody up to your way of thinking is to cause them to smile or laugh. Considering substituting some humor for your boring statements about the current weather. By starting off on a light note, you will also disengage any possible barriers that they have developed for you and your position. It is much easier to negotiate when your adversary has lowered their walls and are willing to listen.
  3. Learn About Family and Take Notes – People love to talk about themselves, so take advantage of this. Ask your adversary about their life and their family during initial pleasantries. By taking a few moments to ask questions about them, you will allow them to open up and provide information that will create an immediate connection in future conversations.
  4. 70/30 Rule – Listen and learn – The 70/30 rule states that you should listen 70% of the time and speak 30% of the time. In listening, you will be able to learn significantly more than you would by speaking. Take the time to hear your counterpart and develop an understanding of them and their claim. Who knows, they may let something slip that could greatly increase your leverage.
  5. Use the Phone – Take advantage of verbal communication to develop connections and negotiate your claim. Email communications is hugely important in our current day-and-age, however that does not mean that the telephone should be left on the hook. Consider making initial contact via phone and have all important dialogue through this means. There are numerous tells or strategic information that you can get over the phone that you would not receive via email.
  6. Continue to read these articles in future newsletters for more tips/trick on how to become a master negotiator.

Please note that this approach is not an infallible strategy and should only be considered a starting point. You will encounter adversaries who refuse to play into your narrative and immediately take an aggressive and transactional approach. In those scenarios, you should be prepared to argue the facts and merits from the start and respond to aggression with an equal response. In my next article, I will discuss strategies for dealing with aggressive adversaries and how to use anger, disappointment, and other such emotions to your advantage. Stay tuned and do not hesitate to reach out and provide me with any examples that you may have of occasions where the above relationship-based strategies have worked for you.

For questions regarding this article or subrogation in general, please contact Ashton Kirsch at [email protected].

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Ashton T. Kirsch
Partner

Ashton T. Kirsch is an insurance litigation attorney and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C., concentrating his practice on litigation of subrogation cases involving large loss casualty, commercial auto, transportation and cargo, and workers’ compensation.