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The Deadline Looms for New Medicare Billing Codes

September 22, 2015 by Brian Schachter Leave a Comment

We’ve written before on the blog about the looming revisions to the Medicare billing codes, which are about to expand almost ten-fold from the 17,000 current treatment codes to more than 155,000 treatment codes under the new scheme. This issue is in the news again because the new coding scheme, referred to as ICD-10, is set to go into effect in less than 2 weeks on October 1st. (Click here to read our prior blog post.)

Medicare codingThe New York Times recently ran a story about the significant impact the new coding scheme is likely to have on the medical profession, describing it as “a sea change for physicians”. Apparently, the pending changes are triggering extensive anxiety among doctors as a result of the anticipated the difficulties of compliance and the disruption it’s expected to cause in revenue and cash flow. The article highlights some extreme examples of the new coding scheme, such as the requirement for doctors to specify a distinct code depending on whether a patient was bitten by a horse, a shark or a crocodile (newly designated as Code W58.13) or suffered injury as a result of being sucked into a jet engine (new code V97.33). In a somewhat more serious vein, the article also reports how doctors groups are scrambling to line up new lines of credit on the assumption that confusion and non-compliance are going to result in extensive payment delays. (Click here to read the full story in the Times.)

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Filed Under: lien resolution, Medicare, Uncategorized Tagged With: lien resolution, Medicare Liens, medicare set asides

The Best PI Beach Reads of 2015

July 28, 2015 by Randy Levine Leave a Comment

Suzy's CaseIt’s that time of year when many lawyers are cleaning up loose ends on their case files, and recording a new voice mail message as they prepare to head out for summer vacation. So for the next few weeks we plan to deviate from our usual programming on the ESS blog and offer up a few special summertime postings. We start this week with our recommendation for the best beach reads of 2015.

No doubt many of you already have a preference when it comes to best-selling authors – some of you may be drawn to thrillers by James Patterson, others stick with tried and true favorites like John Grisham or Stephen King. But for us there is no better beach read available today than the Tug Wyler mystery series written by Andy Siegel. These books are really ideally suited for those of us who have put their time in the trenches as trial lawyers since the protagonist is a wisecracking New York PI attorney.

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Filed Under: Uncategorized Tagged With: summer vacation

What Types of Cases Should You Mediate?

June 30, 2015 by Brian Schachter Leave a Comment

oliver w. holmesThere’s an old Oliver Wendell Holmes maxim we remember from law school – great cases like hard cases make for bad law. Not to quibble with the venerable Justice Holmes, but in our experience as settlement consultants, we have found that this observation is not so true, at least when it comes to mediation. Great cases and not so great ones both make for good mediations, at least when measured by that all-important yardstick of positive financial outcomes.

Of course, whether your case is a strong one or not will shape your strategy and goals as you head into mediation. With a strong case you will be much less inclined to compromise; your settlement range will be much narrower and you will likely insist on adhering closely to what you think of as full value for the claim. To the extent that you are fully confident about the law and facts of the case, though, there are still significant advantages to be realized from participating in mediation, as we have written in a previous blog post. It’s also important to remember, as we previously discussed here, that whenever you mediate a strong case, you must make sure you’re trial ready before mediation, so the defense fully appreciates how prepared you are to crush them at trial.

But let’s face it – not every case in your office is a sure winner. Every trial lawyer takes on matters where investigation and research turn up potential vulnerabilities in the plaintiff’s case – bad facts turn up in discovery; perhaps the defense has taken a surveillance video that shows your client playing touch football despite a claim of chronic back pain; or maybe you’ve learned that your client will be unfit to take the stand due to his prior history as a child abuser. When any such weakness surfaces in the course of developing your case, mediation becomes more attractive as a means to sidestep jury trial while nonetheless providing a means to secure some settlement value for your client.

From the lawyer’s point of view, mediation provides a means to cull some of the weaker cases from your docket so you can focus your firm’s resources on higher value opportunities. This is why we recommend to our clients that they undertake a periodic review of all pending matters, in order to identify those cases, where a material weakness makes going to trial problematic in some way. From the client’s point of view, mediation may provide a shorter route to recovery, albeit one that is smaller but more certain. Oftentimes, this is a tradeoff that clients are ready to make in the interest of putting a sum certain into their pocket now rather than risking a larger upside in front of a jury.

A recent case we were involved in illustrates how mediation provides a good alternate route to recovery as potential difficulties at trial begin to emerge. The plaintiff in this case was a construction worker who had been injured on the job. The case had to be brought in Westchester County – a jurisdiction not generally favorable to plaintiffs. The plaintiff had filed a motion for summary judgment on liability and the defendant had filed a motion to dismiss. Our client assessed the probabilities as a 30% percent chance for winning the motion for summary judgment as against a 35% probability that defense’s motion to dismiss would be granted. In any event the defense only carried $1 million of insurance coverage. Given the limited upside and the various weaknesses in the case, this was easy to identify as a good candidate for mediation. The plaintiff went into mediation with an initial target of $700,000 to $800,000 but ended up settling at $550,000. This made sense because we were able to provide a structured settlement that enhanced the lifetime value of the plaintiff’s recovery, and brought the financial settlement value into an acceptable range.

When mediation works, everyone walks away happy. In this case, the defense was pleased to cap their expense and exposure at a level well below the full amount of the insurance coverage. At the same time, the plaintiff was happy to achieve finality and closure, avoiding the risk of trial, with a recovery enhanced by a structured settlement. By definition that’s a successful outcome.

Filed Under: Mediations, Uncategorized Tagged With: mediation

The Art of Negotiation

June 23, 2015 by Randy Levine Leave a Comment

The back and forth of mediation is not unlike ping pongLast week we wrote about the art of the demand, discussing the various factors that shape how you make an initial demand as you head into mediation. This week we discuss what happens next and the important dynamics that come into play after you make the demand. This is where the art of negotiation becomes all important, as you have to devise your strategy for playing the back and forth process as you try and get to the best possible settlement for your client.  It’s not unlike a game of ping pong, where you have to take your best shot while always anticipating your opponent’s next move.

There are some people (and even some lawyers) who don’t like the back and forth of negotiation. They get impatient or consider it to be pointless posturing. But that’s not the case with us. To the extent that it’s important to enjoy what you do in order to be good at your job, then I guess that’s one thing that makes us effective as settlement consultants. Although defense counsel can sometimes be pig-headed and unpleasant to deal with, no matter how many negotiations we participate in over the course of a year, there is always a certain thrill we feel when it’s time to roll up our sleeves in pursuit of a new opportunity to hammer out a case settlement.

Negotiation being as much an art as a science, it’s not possible to provide hard and fast rules about how to be successful in the back and forth of every case. Each negotiation calls for finesse and intuition, as you have to be able to assess the mediator and players on the other side of the table in order to devise the optimal approach in any given situation. That being said, over the course of our careers, as we have faced such a wide array of adversaries, we’ve been able to identify a few general principles that often prove helpful in shaping the approach we end up taking.

  1. Never be afraid to walk away from the table. Just because you have paid good money to a mediator and invested additional time and money in preparing for mediation, you should never hesitate to break off negotiations if the defense gives an unambiguous message that they are not serious about engaging. In other words, a good negotiator is always on the look out for the sign that a case really needs to be litigated. It can happen right at the outset if the defense comes in with a ridiculously low starting position and gives no indication of flexibility. Also, if defense fails to bring the proper adjusters with the appropriate authority. Sometimes, walking out speaks louder than any other counter.
  2. Negotiating is like dancing – you want to be in sync with the other party. But sometimes you have to be ready to take the lead. Early on in any settlement negotiation, the parties establish a certain rhythm for the exchange of offer and counter-offer. Either you take baby steps or big strides as you go back and forth on the march to the middle. But it’s also important that you be prepared to take the lead if and when the right moment presents itself. A series of small steps can lead to an impasse and then it may be time to consider a bolder move. Remember, as with dancing, timing is everything. In the words of Don Philbin, a well-regarded mediator – “The right number at the wrong time is the wrong number.”
  3. Tune in to the nuance and role of every party at the table. The back and forth involved in settling a personal injury case is almost always more complicated than a two party negotiation between plaintiff and defendant. Usually, along with defense counsel, there will be multiple insurance adjustors involved, for insurance carriers with different levels of exposure. There’s also the mediator to consider. Everyone plays a different role and has a different stake in the proceedings which will very much shape how the negotiation progresses. This can be true on the plaintiff’s side of the table as well. As settlement consultants many of our attorney clients find it useful to use us for a distinct role in the negotiation. More often than not, we find ourselves putting a target on our back and playing the role of the heavy, which can be useful in order for us to be able to drive a harder bargain while also enabling plaintiff’s counsel to preserve a decent working relationship with opposing counsel.
  4. Don’t be afraid to trust the mediator. A professional mediator is being paid good money to get the job done and wants to see the case settled. So as a general matter we approach a mediation prepared to put our trust in the mediator. Of course, trust comes much easier when we have prior working experience with the mediator, so he or she is a known commodity with a proven track record. And of course, you never step into the same stream twice so, even with a proven track record, you have to reassess each case on its own merits. But assuming trust is established then it can be prove very useful to open your kimono wide with the mediator. The more the mediator understands where you need to be in order to settle a case, the more likely it is that a settlement can be reached. We do agree that sometimes you need to give the mediator a target zone that leaves you room when he or she tries to get you to come in lower so you reach your true winning number.

Filed Under: Mediations, Uncategorized Tagged With: mediations, mediator

How and when to make your demand

June 16, 2015 by Randy Levine Leave a Comment

“Let us never negotiate out of fear. But let us never fear to negotiate.” – John F. Kennedy

ess-chess openJFK was thinking about diplomacy with the Russians when he uttered his famous phrase about fear and negotiation. But I think his words also hold true for the approach we take to most personal injury mediations. We never want our clients to head into a mediation session showing anything but the utmost confidence in the merits of the underlying legal case. But even assuming the law and facts are on your side, there is almost always something to be gained by trying to negotiate a settlement and thereby avoiding the expense and uncertainty that goes along with a courtroom trial.

Negotiation lies at the heart of any mediation. We actually think of negotiation as a process with two distinct stages. It starts with a demand stage in which one or both parties put their positions on the table. The demand stage establishes the framework for the negotiation stage that immediately follows, in which the parties will go back and forth however many times in order to reach a mutually acceptable settlement. As we see it, each of these stages presents a unique set of challenges and issues to be considered for any given litigation. There is an art to making a demand, and there is an art to negotiation, each of which is worth separate discussion. In the remainder of this week’s blog post, we will turn our attention to the art of the demand and then next week we will follow up with a discussion about the art of negotiation.

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Filed Under: Mediations, Uncategorized Tagged With: mediations, mediator, settlements, trial-ready

Why Annuities Really Matter or How you Can Save Money for Your Next Client with A Medicare Set Aside Case

May 19, 2015 by Randy Levine Leave a Comment

balancing-platesThe reality of legal practice is that lawyers are almost always scrambling to keep up with the rush of events. This is particularly true for personal injury lawyers who often find themselves juggling dozens of active cases at any given time, with their attention jumping from the complaint that needs to be drafted on a new matter to the depositions scheduled for tomorrow to witness preparation for a trial that begins next week. We know the story from our own law practice and also see in our consulting practice how most of our lawyer clients contend with similarly hectic schedules in their working lives. Running a successful personal injury practice reminds us of nothing so much as the old vaudeville routine of the guy rushing around trying to keep the spinning plates in the air.

That’s part of the reason we decided to establish our consulting practice. We know many highly skilled trial attorneys who simply don’t have the time to master everything they need to know about structured settlements and financial service products in order to serve their clients well when it comes time to settle the case, particularly if the case involves complications related to Medicare.

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Filed Under: Annuities, Financial Planning, Medicare, Uncategorized Tagged With: annuities, annuity, Medicare, Medicare Secondary Payer Act, Medicare Set Aside, medicare set asides, MSA, tax free annuity

Mediator I Choose You!

May 11, 2015 by Brian Schachter Leave a Comment

ess - picking a mediatorSo, you’re going to mediation. Now how are you going to pick a mediator? This can be one of the most important factors in determining whether your mediation is going to be successful so it’s worth giving some attention to the factors worth considering in making your choice.

Of course, neither plaintiff nor defendant alone can dictate which mediator to choose. The mediator must be a mutual choice. But that being said, the question is what sort of mediator is likely to do the best job in any given case?

It really makes no difference which company a mediator is affiliated with, as far as we’re concerned.  What’s important is the mediator him or herself – what knowledge and background does he or she possess and how well suited will they be to help guide the parties towards a resolution of the case?

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Filed Under: Uncategorized Tagged With: litigation, mediation, mediations, mediator, Mediators, plaintiff, plaintiffs

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