Do The Right Thing
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Occasionally, when attending settlement negotiations on behalf of one of my clients, I am casually told that I need “not worry”; the other party has a structured settlement person who will handle the case. Now, I like to avoid worry as much as the next person; this is a very considerate gesture. But, if we set aside for the moment that I make my living crafting structured settlements, there also is a fundamental law of the universe at risk here: in an adversarial proceeding, if the other guy has retained an expert to protect their interests, then you had better retain one to protect yours.
I do not say this for the self-serving reasons you may think. Actually, given my long-standing excellent client relationships, I am in a position to handle the whole transaction – and gain financially from doing so – far more often than you might think. But when the other party wishes to retain their own expert, I understand why they’re doing it..
Now you may ask: just how many settlement planners does it take to craft a structured settlement and how is adding one more to the mix adding value?
The technical answer to the first question is that it only takes one highly trained, skilled professional to properly put together a fully qualified Section 104(a)(2) structured settlement. On the other hand, it can also take just one not-so-highly-trained “broker” to turn your carefully orchestrated settlement into a nightmare.
Not long ago I was asked to attend a pretrial conference to help resolve a case involving a catastrophically injured young man. It was generally accepted that, as a result of his injuries, he would never return to work and that his future medical expenses would be daunting. I had reviewed the case file prior to the pretrial and had secured the requisite substandard life expectancy estimates. I had also documented his future damages (as set forth by the economist’s report and the life care plan) on a spreadsheet and calculated the actual present value cost to meet his future lifetime care and maintenance expenses.
With my client’s approval, we presented our data, shared the math, and offered our conclusions to all in attendance at the pretrial. Long after we had made our presentation, a structure “expert” for one of the other parties arrived on the scene. As they were over two hours late, the parties took a break so this person could confer with their client. When they returned, they announced that we had misstated the costs to fund the claimant’s future needs by over $4 million dollars. This expert then produced his own data to back up his assertion. As you may imagine, this cannonball off the high dive caused quite a commotion (and more than a moment’s anxiety on my part). However, after reviewing our tables and checking our math, we could find no calculation that supported this new expert’s assertion. Thus challenged, the new “expert” had to then go reconfirm his data for the group. Unfortunately for him, his assertions did not survive a second trip through the math. He claimed innocent calculation error by a staff member in his office and was forced to admit that our original math was the correct number. Disaster averted, we calmed the waters and continued on to settle the case. In this instance, the value of having their own expert present was made obvious to my client (although we can’t help but wonder if this other guy’s client left feeling the same way).
In another case the value of having your own expert was revealed in a completely different way. This case involved a gentleman who was so severely injured in the course of his employment that he would never recover. The case was highly complex as it included multiple codefendants with many layers of coverage plus a workers' compensation carrier. The idea of using a structured settlement was naturally brought to the table early on in the case, but was overshadowed by the contribution warring between these various factions. Ultimately, the case settled with each of the codefendants obligated to pay a considerable sum along with a lien waiver and fresh money from the workers compensation carrier. Now, with the parties finally in agreement about who was going to pay what, you’d think the hard work was over. Hardly..
One structure “expert” brought by one of parties took it upon himself to try to attempt to unilaterally arrange the structured settlement. The only problem was that only one of troupe had ever heard of this guy. In fact, the first contact they had with him was a letter out of the blue directing them to write checks and send them to him. Since two of the parties happened to be clients of mine, they asked me to contact this person and straighten things out.
After exchanging pleasantries, we “exchanged pleasantries” some more and ultimately sorted out the limited role he would be playing. Still, from there, it took every bit of three weeks to untangle this guy’s mess. In the end, the injured employee received a valuable stream of benefits, and all the parties felt comfortable that the settlement documentation we prepared was proper and correct. My clients appreciated my heading off a brewing storm.
The increasingly widespread use of structured settlements pleases me for two reasons: first, obviously it’s good for business, but secondly it affirms my initial impression that structured settlements are a genuine good thing for everybody: for injured persons, defendants, defendant’s insurers – and society in general. But the more widespread they become, the more opportunity for part-timers and incompetents to slide into negotiations.
Protect yourself and every other party in the room. Do the right thing by retaining a truly qualified expert to represent your interests. Call Frank C. Kilcoyne CSSC at 800-544-5533. I am here to help.
