As a workers’ compensation defense attorney, one of the things that fascinates me the most is how things can get done with the help of the proverbial enemy of defendants: the applicants' attorney.

Arc N. Tolentino

Though we are legal rivals by nature of the case, we eventually bring each of our clients to that common fence of settlement, whether it’s a simple agreement to go off-calendar or a culminating settlement of a case.

At the end of the day, most applicants' and defense attorneys share the common interest of getting things done and moving cases forward. Even most judges feel the same way. All of us can relate to the never-ending list of other issues awaiting us in our inboxes, tasks, etc.

It’s important for defense attorneys to understand that applicants' attorneys (AAs) are always looking for quick dispositions and settlements because their business models are not based on the billable hour. Instead, they rely on moving cases to compromise and release so they can get the almighty order approving compromise and release and get paid.

If AAs don’t settle, they don’t get paid. So how are they going to afford their legal assistants, associates, salaries, operating costs and everyday rising prices in our local grocery stores?

They need that settlement! So let’s use this knowledge to our advantage. Here are a few tips and reminders that defendants can use to get quick and sometimes even unexpected settlements.

Always bring up settlement

In a letter to the AA, I always write at the end that AA should let me know if there’s any interest to settle or if there is a settlement demand for our consideration. I do this even if there are pending issues to be resolved, because you never know if the applicant or AA is looking to settle.

So don’t hesitate to ask. Sometimes you will be surprised to receive that out-of-the-blue settlement demand that appears reasonable and is worth discussing with the adjuster.

If you don’t get any response, it also becomes a good indication that AA is disinterested, and perhaps a small offer on our part can get AA interested and get the ball rolling.

If our letters contain the magic word “settlement,” it serves as a constant reminder to the AA that settlement is a possibility.

End-of-year settlements

I have noticed that I’ve had more settlements in the months of November, December and January. I think the reason for that is that AA firms would like to settle their cases before the year ends, and they are also trying to rake in as many attorney fees as possible to hit their performance and financial targets for the year. Because at the end of the day, AA firms are businesses, and a business needs to make some monetary sense. Furthermore, the applicants themselves could also use that settlement money as a holiday gift.

So this is the best time to reach out and call up the AA if you have a case that’s on the brink of settlement. This is also great information to know so that you can prepare for next year’s holiday settlements.

Settlement before depos and QMEs

It is always good to bring up settlement prior to a deposition or QME evaluation. In my experience, I like bringing up settlement two to three weeks before the depo or evaluation, so that it gives the AA time to consult with the applicant on settlement, and it also gives me time to discuss with the client for settlement authority. In addition, having that lead time allows you to cancel the QME evaluation without any cancellation penalties, which is usually a week before the evaluation, if ever you get into a settlement.

In my experience, clients are very happy with settlements prior to depos or evaluations because they’ve closed the case and avoided discovery costs.

Conclusion

On that note, go forth, communicate with your applicants' attorneys, and settle. Because, as we all know, the best type of file is a closed file.

Arc N. Tolentino is an associate attorney at Bradford and Barthel’s Fresno office. This entry from Bradford & Barthel's blog appears with permission.