A Big Win with “High Low Binding Arbitration”
It was 1995, I was 27 years old, suddenly I had a check for $64,000 in my pocket.
This is the story about my first big win as a new personal injury lawyer. It’s a story of how curiosity and hustle come together to form a big win for our client and my first big attorney fee check. This is a story about experts, alternative dispute resolution and settlement.
It was 1995, back then, I was single, living in an apartment in the Marina district of San Francisco. Our apartment was just off Lombard Street near our restaurant of choice, Jack In the Box. I was living with my good friend Jay Campbell and working round the clock. When I would come home on Friday nights Jay would greet me with his big warm smile and great sense of humor and say, “It’s Friday, only two more work days until Monday!” His joke did not affect my desire to work less on the weekends. I was having fun. Each day flew by in what felt like a series of flashes and before I knew it the day was gone in what felt like moments. I did not realize it at the time, but I was in the state of flow, doing what I wanted to do and loving it.
I had heard the term vocational rehabilitation expert, and was interested in meeting an expert that worked in this area. Someone mentioned Ona Schissel’s name to me. At the time Ona was working as a vocational counselor and rehabilitation expert. Her office was on Montgomery Street in San Francisco. I called her up and asked if she would meet with me and tell me about the kind of work she did and what it meant to be a vocational rehabilitation expert. At the time my office was at 126 Post Street in San Francisco, Ona’s office was a short walk away. When I arrived Ona and I talked about her work, I asked some questions and she shared with me how a vocational counselors can help an injured person who can no longer work effectively in their chosen occupation due to the effects of an injury. Ona looks at a person’s background, work history, aptitude and formal education and makes recommendations about fields of work they can still do post-injury. She helps people determine what types of work they have the aptitude and can actually do, given their post-injury physical ability. The level of post-injury physical ability is referred to as a person’s functional capacity. There are health care providers that provided functional capacity testing for injured people who need to change jobs after an injury.
Eventually Ona asked what I was working on. I shared with her that I had just opened my office and was focusing on trial work. Ona looked at me and said, “I have a case I want you to look at.” She looked across her office to the top book shelf, stood up, walked over, reached up and pulled a case file off of her shelf. She literally dusted off the cover of the file and said you should take a look at this case.
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Ona was showing me the personal injury case file of Sidney Ford. Sidney was a self employed barber from Richmond, who had slipped and fallen on the sidewalk near his shop. The sidewalk had been ripped up by a construction company and a safe route of travel for the pedestrians. One day Sidney fell while navigating the negligently maintained construction site. The fall caused an injury to Sidney’s back. Sidney’s treatment consisted of doctor’s evaluations and physical therapy at Kaiser hospital. Sidney was alleging that his low back had not improved after physical therapy and that he was living with chronic low back pain. The lawyer Sidney was working with initially had substituted out of the case. This left Sidney to act as his own attorney. The legal lingo for this is that Sidney was acting in propria persona or In Pro Per. In Propria Persona is a latin phrase which literally means “in the person of yourself.” Ms. Schissel was a consulting expert in the case and was doing Sidney a favor by helping him to find a lawyer that was willing to take on his case on a contingency fee. As is common for injured people, Sidney did not have enough money to pay an attorney an upfront retainer to work on an hourly basis to prosecute his claims in court.
That night I walked out of Ona’s office with Sidney’s file. Shortly after, I called, we met and Sidney signed my contingency fee agreement. I became his attorney. At the time I took over Sidney’s case, the case had already been filed with the court and all of the discovery was completed. I recognized that the next step was to let the court know of my representation, inform the court that the discovery was complete, and that the case should be set for trial. The court agreed and set the case for trial.
Sidney and I showed up for the first day of trial ready. The case was venued in Contra Costa County in the town of Martinez. Our case was called. Defense counsel and I were invited into the Chambers of trial Judge Maria Elena James. Judge James greeted us with her warm smile, compassionate, yet pragmatic demeanor. She quickly got to work to determine what could be done to help the plaintiff and the defendant reach a settlement that did not involve a two week jury trial in her courtroom.
Judge James determined that the parties’ views of the settlement value of Sidney’s case were far apart. The defendant viewed the case as defensible, meaning the jury would not find any negligence. And even if they did find some negligence on the part of the construction company, the jury would also find significant comparative negligence on Sidney. They would argue that he should have seen and avoided the open and obvious condition that caused him to fall. Further, the defense viewed Sidney’s injuries as nothing more than what the insurance industry refers to as “Soft Tissue” injuries with “no objective findings” to verify his complaints of pain. Essentially, Sidney may say he was hurt, but the jury will have to take his word for it. Because there is no objective test result (x-ray or MRI) to verify what was causing the pain inside of Sidney’s back. The last settlement offer of the defendant was $10,000 dollars.
Sidney’s view of the case was that his life been forever changed for the worse because of the defendant’s negligence. This negligence caused his now lifelong, chronic low back pain. Sidney would not consider any settlement offer that was not well above $100,000 dollars. It looked like the case was headed for a jury trial.
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After about an hour of discussions, the prospects of any settlement looked unlikely, Judge James raised the idea of resolving the case with an agreement for high low binding arbitration. Her specific proposal was a binding high low arbitration with a low of $10,000 and a high of $200,000. What this meant was that instead of the case being heard and decided by a jury of 12 people in Judge James’s courtroom over the next two weeks, the parties would instead agree to hire an arbitrator. A neutral attorney in the community would hear the facts of the case and decide the factual issues of negligence and damages. The decision would be binding, meaning a final outcome on the parties that was not appealable. Such an arbitration could be done in a few hours at the arbitrators office. The parties agreed and the case was settled. We just needed to conduct the arbitration and the case was over.
Defense counsel and I hired Peter Elkind, a mediator and arbitrator from Oakland. A date for the arbitration was agreed to and set for Mr. Elkind’s office in Oakland. The case was presented based on the photographs of the scene and the relevant medical records and reports from Kaiser where Sidney had his medical care post accident. The only witnesses were Sidney and his wife, Maddy. The length of the hearing was about two hours.
Two weeks later an envelope arrived from Peter Elkind with an arbitration award of $160,000. After, attorney fees, case costs and the Kaiser lien were deducted Mr. Ford received a check for $86,000. My attorney fee was $64,000. This was the first real money I made as a plaintiff lawyer.
