Episode 28: Conversation with Richard Kraege (The Mediation Process)

Richard Kraege:

The client is the central focus in a mediation. It’s not just the lawyers, this is about the client. It’s about the person who has been through a horrific experience, and so, that person is empowered typically by the mediation.

David Craig – Host:

I’m attorney Dave Craig, managing partner and one of the founders of the law firm of Craig, Kelley, and Faultless. I’ve represented people who have been seriously injured or who have had a family member killed and a semi or other big truck wreck for over 30 years.

Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash.

Meet Attorney Richard Kraege

Welcome to After the Crash, the podcast. Today, our guest is Richard Kraege. Richard is an attorney. I call him Dick, so if I slip up throughout this podcast, but Dick is a Fellow in American College of Civil Trial Mediators.

He was actually one of the first mediators to start doing that in the state of Indiana. He’s mediated over 8,000 cases. He writes in the area on alternative dispute resolution. He lectures frequently in this area. He’s been an Indiana Super Lawyer for years. He’s also been a Top 50 Indiana Super Lawyer for the last several years. He’s been ranked as Best Lawyer in America by U.S. News and World Report.

I first met Dick when he was in private practice way back, and he ran his private practice, I think from 1973 through about 2002, and then decided to give it up and just become a full-time mediator. He’s partial owner of The Mediation Group, which is probably the, I don’t know if it’s the biggest, but I think it’s the biggest mediation group or one of the biggest mediation groups in the state of Indiana, and it’s an organization that is used by a lot of attorneys that practice in Indiana. I know Dick does mediation outside of Indiana as well. He graduated from DePauw University for his undergrad and Washington University in St. Louis from law school. So Dick, welcome to the podcast.

Richard Kraege:

Well, thanks Dave. It’s good to be here with you in this capacity.

David Craig – Host:

Dick and I have worked together a lot over the years, and have always enjoyed it. And we did this podcast so we could help people try to understand what we do day in and day out. We do it so often that we kind of take it for granted, but I even remember with the very first mediation I ever did, I was nervous as a lawyer, as an advocate, I was nervous. I didn’t really understand what was going on. I can’t imagine how clients feel because it is their first time. Plus, they had to live through it, in my cases, catastrophic or horrible injuries, or deaths and so, to sit through a mediation, it must be intimidating. So, let’s start off with just kind of telling the public, what is a mediation?

What Is Mediation?

Richard Kraege:

Certainly. Well a mediation, it’s simply a settlement agreement. It’s a settlement agreement with a facilitator, or I call myself a helper and that’s my role as a helper.

So, I’m at The Mediation Group, and we’ve got 18 rooms. We put one party in one room, and another party in another room. If there are multiple parties, then they kind of fill out the office.

When you have a mediation, it gets on your calendar, my calendar, and the defense attorney’s calendar, and probably after it’s scheduled, maybe it takes a couple of months for us to actually get together, and then we have a meeting.

Now, things have changed since the pandemic. Before the pandemic, we did everything in person or it was very rare to have any parties remotely, but now we have Zoom. Zoom has changed our methodology in doing mediations.

As I sit here this afternoon, on a Wednesday afternoon at the office, we have eight mediations on Zoom and one in-person, and it’s actually picked up in December of ’22 from where it was in terms of getting together. We think that Zoom is going to be with us forever from this point forward.

This morning, I had a mediation with parties from New Albany or another one from Lake County, Indiana. So, you got way south and way north and they didn’t want to drive to Indianapolis to get together. So, we did it on Zoom.

So, a mediation itself is explained to the client. When we get started, I do an orientation at the beginning just as you say, you were nervous at the beginning doing your first mediation, and it’s my observation that clients are as well. Nervous, anxious. Lots of emotion because everything kind of bubbles up to the top if they’ve been in a horrific accident.

Maybe they lost a loved one or maybe their lives have been turned upside down by what happened. So, we try to make people as comfortable as possible and describe the process, and that’s the first thing that happens.

David Craig – Host:

Again, there’s a lot of young lawyers that have never known there not to be mediations. Right? You and I have practiced long enough that there were no mediations when we first started.

So, I think it’s important for people to understand this mediation process that you’re talking about, that we’re going to go into a lot more detail about, didn’t used to happen.

Back in the old days, all too often, the lawyers would show up at the courthouse ready to try their case because that’s when you worked your case up, you got ready to go to trial. It was at trial that the lawyers kind of knew whether they had a good case or a bad case, or what the pros and cons were. You used to hear about cases settling at the courthouse steps, and that often happened where you would get into trial or get close to trial, and then the case would settle at that point.

The bad thing about that was that the lawyers made more money typically because the defense lawyer got paid by the hour to prepare for trial, and so, they did all the preparation so an insurance company would pay them a lot more money. Then, the plaintiff lawyers, oftentimes their fee goes up closer to trial, so they got more money. Then the doctors, all the experts, and all the people that have to testify, they got paid to go to depositions or paid to testify at trial.

So unfortunately, from my experience back in the old days, weren’t so good old days, in that the insurance companies ended up coming out behind. The plaintiff, the person, and their family who was injured came out behind because all the expenses had been incurred right at the time the case settled.

I think for young lawyer, that’s the way it used to happen back in the old days, and for clients it wasn’t a very good process. Quite frankly, if the case didn’t settle on the courthouse steps then what happened was I got on the phone, talked to the insurance lawyer, and we negotiated. I called my client and said, “Here’s what the offer was,” and then a week later, two weeks later, I called back and say, “Here’s what the new number is.” The clients were just on a telephone conversation, and they weren’t really brought in to be part of the process.

So, I think that it’s important for people to understand that this is really kind of a big deal. When they came through and passed mediations and adopted it. Maybe you can comment a little bit about that. Do you agree that mediation has been a major improvement in what the way things used to be?

Has Mediation Been a Major Improvement?

Richard Kraege:

Yes, absolutely. I was one of the first mediators in the state of Indiana. I was sitting at my desk. I was an attorney and I picked up the phone and there’s a judge on the line and he said, “Dick, we’re trying a new experiment here, and it’s called a mediation. Would you be interested?” And I said, “Well, what is it?” I had no idea what a mediation was, but I volunteered for it.

So, there were probably 10 of us that started this, and we had what was called settlement week in Indiana where all the courts basically shut down for a week. At the beginning of the week, we all went to the courthouse and started working with people to try to get cases resolved. At the end of the week, half of the cases were settled. So, can you imagine how the judges felt about that? Extremely happy that their caseloads had gone down precipitously.

But the most important part of it is what you were talking about, and that is the fact that the client is the central focus in a mediation. It’s not just the lawyers. This is about the client. It’s about the person who has been through a horrific experience, and so that person is empowered typically by the mediation.

David Craig – Host:

That’s the thing I love about it, because a trial is not like that. At trial, client just sits there next to you and is very restricted in what the client gets to do, and for the people who are watching this, if you’re going to get ready to go into a mediation, regardless of who your lawyers are, you should look at this as a really positive thing because you now are in control. You get to be involved. Instead of me calling back and forth, you get to be there, and you get to ask questions, and spend time with your lawyers. I think that’s one of the things I would like to emphasize for people, is that really this whole mediation process is about the clients. It really is for the benefit of the clients.

Richard Kraege:

It is, and it’s efficient in that you don’t have to call somebody. They’re there in the next room, and so you can negotiate while you’re there in a half a day or a day, maybe two days, but your case is settled at the end of that time.

More often than not actually, the settlement rate, it depends upon what kind of case it is, but it’s probably 70% to 90% depending upon the case that’s settled. I guess that shouldn’t surprise anybody if you’re in our business, because you realize that the percentage of cases that actually go to court and get tried is a very small percentage, probably less than 5%.

So, maybe lawyers have 100 files to work on. Maybe 5, 10 would actually go to court. It’s not unusual for some lawyers to never go to court, or some lawyers want to go to court, 10 is probably the highest number they can do in one year. So, it’s an efficient process for the client, and the client understands exactly where they are after the meeting.

You get to sit there as a plaintiff’s lawyer with a client for hours on end, and I always tell people, “Well, I’d like to sit there with Dave Craig and just shoot the breeze for half a day, because he’s really entertaining to talk to.”

David Craig – Host:

I think that’s the greatest thing is the time that I get to spend with clients because as lawyers and clients, if you’re watching, you probably have been in a process and to get to a mediation, a lot of time has gone by, and a lot of work has been done.

You haven’t probably spent a whole bunch of time with your lawyer, face-to-face, in person, for hours. I just got done with a meeting right before I came in here. It was a catastrophic wrongful death case, and my meeting was in one hour. And it’s not the first time I met with these folks, but it was an hour.

But in mediations, I love it. Because I get to spend a half an hour or half a day, or a full day with my clients. And to me, there’s nothing better than for clients and their lawyers to actually be able to spend a half a day or a day together, because you really get to know each other. You really get to spend time, and really get to explain and understand the process.

Richard Kraege:

And for clients, it’s a little bit like going to the doctor. You go to the doctor, and what do you get? How much time do you get with the doctor? Eight minutes or ten minutes? So, at the end of session you leave and you think, “Gosh, I wish I’d asked this question,” or, “I wish I’d asked that question.” If you’re with your lawyer for half a day or a day, you can sit there and pump him for information all day long.

David Craig – Host:

I would encourage people to do that.

Richard Kraege:

Right. Yes.

David Craig – Host:

I mean, if you’re sitting with your lawyer, that’s your opportunity to ask her or him any questions you want, and your lawyer should answer and spend the time with you. They shouldn’t be sitting there reading the newspaper. They shouldn’t be on their phone or dictating letters or responses to their mail. They really should spend the time with you, and if they’re not, then insist on it because that’s what they’re there for. They’re there to help you. They’re there to explain to you.

The whole reason I do this podcast is to empower people and let them know what you should do or what you should know. This is your lawyer, and regardless of which side you’re on, make them answer your questions, and make them talk to you. Most lawyers, the majority of us, all talk to our clients and spend time with our clients, and really enjoy the process. But it’s important. It’s your case. You got one shot, and you should ask the lawyer anything and talk to the lawyer and talk to the mediator. I mean, somebody like yourself has tons of experience. I mean, you’ve handled all kinds of cases in the civil world.

So, you have information you can share. Now you’re not a judge, you’re not going to make a decision, but you can talk to people and explain things to people, and that’s very helpful.

Richard Kraege:

I think that makes people less nervous, less anxious, less emotional, able to be more objective because knowledge is power. So, if you understand where you are in the process, I think it really helps people to make decisions whether to settle their cases or not.

As you know, you don’t and other lawyers don’t force their clients to settle cases, or even tell them to. They give advice. They give advice to the clients as to what would be best for them and then, the decision is left for the client. Well, if the client doesn’t fully understand what’s going on, then it’s hard to make a really valid decision for yourself or your family.

David Craig – Host:

Right, and I think again, that’s your opportunity to be there and to be fully informed. I think as an attorney who represents victims of serious wrecks and personal injury type cases that they should know. Like for example, where does the money go? Does the money go to pay health insurance? Does it go to pay medical bills? I believe my obligation when I walk in there is to be able to show my clients, “At the end of the day, this is what you’re going to get if we settle,” and then explain to them what I think the value of a case is at trial. Then try to explain, “Well, what’s the difference? How much money would you make if we were successful at trial versus what you have in settlement,” so that a client can make an intelligent decision.

Then, I also explain what that risk is. “This is a case where it’s clear liability so there’s less risk. This is a case where it’s really disputed as to liability, so there’s more risk,” and certainly, that’s the great thing about having time to spend, because you get to hear the other side’s version. You get to hear what’s important to the other side and use a mediator that kind of helps explain all that. So, clients are in a position of having the information and having the power to make the right decisions. So, I would hope that’s what happens in a mediation.

Richard Kraege:

Yes. Yeah, and I do too. I see clients during the mediation, so I don’t see them generally unless there’s two mediations again, but I think sometimes, even if you’re spending the whole day with somebody, and it’s a really difficult case, sometimes, we have two mediations. So, I see those people come back, that that’s what I just had this morning.

So, I could tell that the woman that was injured horribly, we mediated it on December 23rd of 2021 and we came back today. She was much calmer, more knowledgeable, and she understood what we were doing, so it really helps. I think probably your clients when they leave mediation after that do they feel better about the whole process. Do they?

David Craig – Host:

Yeah, absolutely. I think that’s the great thing is that because it does involve them. I think for some lawyers it’s a little scary to have your client in control. Some lawyers probably are more comfortable making that phone call saying, “Hey, I settled your case.”

I love the involvement. I mean my business has been built on referrals. I think taking people in, and taking the time with them, getting to know them, making them comfortable, letting them know that, “I’m not going to force you to settle. I’m not going to force you to go to trial. I’m just going to empower you to make the right decision and the right decision is your call, what’s right for you and not everybody.”

I’ve had clients tell me, “I just want to go tell my story to a jury,” and that’s okay. That’s the right decision for that client. I’ve had another client say, “I would rather take less, and get this out of the way, and get this done with,” and that’s okay because that was right for that client.” The key thing is empowering the clients so they can, at least from my perspective, make the right decision.

Richard Kraege:

Yes, that’s absolutely true. Clients are under pressure. They’ve been through a traumatic event, and probably their lives were affected financially, emotionally, physically, and they have to recover from that. Then, we come along and we add a layer of another way that to look at that. We are in an adversary process. So, clients don’t understand the adversary process very well and it’s because if they were injured and they were talking to their friends, their friends would listen and be sympathetic and empathetic. In the legal world, you got somebody on the other side who’s telling you, “You’re not as hurt as badly as you can, and isn’t it great that if you lost a leg, at least you have the other leg? If you can’t use both legs, at least you can use your arms and your head.” That’s not the way that people think and they feel like they’re mistreated because of the adversary process sometimes.

So, I think that in mediation, I know you try and I really try to make them feel as comfortable as possible, and have them understand the adversary process, and have them understand that they are being taken care of by you. I think that just that process is worth going to a mediation, whether the case settles or it doesn’t settle. You put the client into a better place, I think. The person who needs a friend, who needs somebody to be their champion. I think that they rely on you and other plaintiff’s lawyers to put them at ease, more so than they are.

David Craig – Host:

When the case is ready for mediation, then both sides have to agree, usually, on a mediator. So, we can pick as far as retired judges that are mediators or lawyers. They have a lot of experience in mediations. There’s all kinds of different folks who do mediations.

I’m curious from your perspective. I mean you’ve written on this, and you teach on this. I mean you were one of the original pioneers in this area. What characteristics do you think are important to have? What skillset does a mediator need to bring to the table to be successful? What three skills would you rank as the highest in picking a mediator? What skillset would you want them to have?

What Characteristics and Skills Should a Successful Mediator Have?

Richard Kraege:

I think number one, it’s I think far ahead of the other two, is connecting with the client having the client understand. I just love people. I love to meet people who are in a position where at least I can help them. So, that’s number one is you want a mediator who has empathy, sympathy, understands what you’ve been through, wants to listen, makes eye contact with you, doesn’t interrupt you, and explains what’s going on to you.

Sometimes, I get hugs. I never got hugs, you get hugs, but I got hugs when I was a lawyer as much as I do now, because I hope I come across that way. So, that’s number one by far.

Then, the other two thirds of it I guess would be you have to have knowledge of law, some knowledge of what you’re talking about. Although frankly, you tell me what the law is and the defense lawyers tell me what the law is. So, I kind of get a refresher course in every mediation. That’s really important also.

The third part of it is, the third qualification is, you have to understand how to handle the negotiations. I guess sometimes I feel like I’m an auctioneer or I’m in Las Vegas at a craps table, because it’s kind of what we’re doing. In mediations, what happens is that the plaintiffs start at one position really high, and the defense starts really low. So, as you go through that, you think, “How in the world are we ever going to get this done?” I think that everyday, honestly.

So, I think it’s important to understand you got to stay with it. You got to make sure that they have negotiated as well as they could. You try to remove any barriers that they have to get to the real numbers where we can actually close the case down. So, I think that’s the most important things as a mediator to have those skill sets.

David Craig – Host:

Let me ask you to put you on the spot. So, those are the skills that are necessary to be a successful mediator. What skills should you look at as a plaintiff lawyer, the person who represents the victims of an injury, someone else’s negligence or carelessness? What skillset does the plaintiff lawyer need to have to be successful at mediation?

What Characteristics and Skills Should a Plaintiff Lawyer Have to Be Successful at Mediation?

Richard Kraege:

Right. Well, I think that number one is, and I see it at your office. I walked into your office. By the way, I haven’t had my Christmas invitation yet, Dave. No, I’m kidding. Since the pandemic, we don’t get together as much as we used to. Which is kind of regrettable because when I go to your office, I know the receptionist well. They’re asking me about my kids and my grandkids while I’m waiting between rooms. We chat for a long time. I know the paralegals and the lawyers. What I see in your office is that the clients are looked at as friends.

Maybe it sounds unusual because we’re talking about lawyers and some people think, well, lawyers have a bad name, but for heaven’s sakes, what you do, and I think what other plaintiff’s lawyers do is your staff really cares, you really care, and it shows through for the plaintiff. So, if the plaintiff thinks that you’re on their side, that’s the most important thing I think. I know you work hard on doing that and I know that your clients appreciate that.

Sometimes I’m in situations where I can see that the lawyer and the client don’t get along. And that makes it so difficult on the client if you don’t get along. So, that’s certainly number one by far.

Then, number two is I think you have to have enough financial access to be able to pay for a lawsuit because it’s so expensive to try a lawsuit, that you have to have enough money to pay experts to go to the scene and take photos, aerial photos, drones. You have to have a financial base.

A lot of lawyers, unfortunately if they’re on their own or if they’re in general practice, they don’t have that to work with. So, I think that’s really important too. Then, of course is knowledge of the law and knowledge of how to negotiate. Those things are important, but those are down the line I think. I just think that you got to have the relationship with the client, and the financial ability to represent that client.

David Craig – Host:

How important, if at all, is it to have a lawyer who actually goes to trial on occasion?

Is It Important to Have a Lawyer Who Goes to Trial on Occasion?

Richard Kraege:

That’s very important. There are a lot of lawyers who don’t want to go to trial. I mean, trial is expensive. It takes lots and lots of time. The outcome is uncertain. It’s frustrating for the lawyers too because the lawyer was just telling me this morning, “Well, we’ve continued this case three times.” Well, it’s hard on the lawyer, but it’s really hard on the client to have it put off, and put off, and put off. To get the case from A to B, from when you first meet the client to through trial, you want to make it as short as possible. You have to work hard to do that as a lawyer, and some lawyers just put your file on the shelf with the other files, and it’s real hard on the client, and delays justice, and justice delayed is justice denied.

David Craig – Host:

Do you think that the other side knows? So, there’s the insurance companies and the trucking companies. Do they know which plaintiff lawyers go to trial or not?

Richard Kraege:

The lawyers do certainly. We’ve kind of reached the stage with insurance companies that the decision makers are remote. We used to know the adjusters and the claims representatives, the people who represented the insurance companies, pretty well, but they don’t know as much. I think that the lawyers do. So, if the lawyers are talking to the insurance people, I think that they get it.

Certainly, we lawyers do. We’re in the Midwest. So, in the Midwest, we know who the good lawyers are in Indiana. Even Ohio and Michigan and Illinois and Kentucky, we know who those lawyers are, the ones that will go to trial. I put in the definition of a good lawyer, somebody who’s willing to go to court with a client.

David Craig – Host:

So, we now know what it takes to be a good mediator, what it takes to be a good plaintiff lawyer, person who represents the victims. In your opinion, what does it take to be a good defense lawyer to be successful at getting cases mediated and resolved?

What Does It Take to Be a Good Defense Lawyer in Getting Cases Mediated and Resolved?

Richard Kraege:

I did some defense work 30 years ago. It’s a hard job, because you’re always looking at the world, you’re questioning somebody’s veracity. You’re questioning their motives, and you’re trying to find out what the weaknesses of the case are. So, that makes it a negative job. You have to be a person who’s willing to do that job, because it’s hard. There’s a lot of hard jobs out there, and I think that’s one of them.

I think that a defense lawyer first of all needs to get along with the lawyer on the other side. I think they need to respect the client on the other side. I think they need to work as hard as you do.

When I started, the defense lawyers worked harder than the plaintiff’s lawyers because it was a lot easier era then it is now. Now, it’s shifted to where the plaintiff’s lawyers are the ones that have to spend a lot more time at it and have to work a lot harder.

David Craig – Host:

I guess the last piece of the equation is the client. What do you think makes a client have a more successful mediation? What characteristics or what skillset do they need to bring to the table to have a successful mediation? Whether that means, settlement or just getting as much information as possible

What Does a Client Need to Have a More Successful Mediation?

Richard Kraege:

As people, we are not supposed to judge people. Judge, not, yes you be judged. So, unfortunately that’s what we do and that’s what juries have to do. So, they look at a person and try to figure out whether they’re a good person or not.

I think that clients need to be as friendly as possible. They need to be as attentive as possible. They need to understand that you’re just doing your job. A mediation is just doing his or her job, and the defense lawyer is doing his or her job as well because we are. As you and I know as lawyers, we’re good people. We try to be good people, we try to do the right thing. Most clients are the same way. It’s just that, as you know, there’s a few bad apples everywhere, but most people are trying to do the right thing. Including jurors by the way, and jurors get a bad rap. People say, “Well, they’re just doing it for the money and they’re not paying attention.” Well, the juries that I see and have seen, they really pay attention, and try hard to make the right decision.

David Craig – Host:

I know that no insurance company or trucking company would listen to any of my podcasts. That’s the last thing they would want to do, but I assume they’re obviously a key player in this as well, and it’s always shocking to me that some, in my opinion, are more effective than others.

June Sanders was here yesterday, and she gave me a big hug when she walked in the room. I had sausage balls made for her. I respect her, and I think it’s mutual. She’s very effective at handling a mediation, I think.

There are other people like her who’ve been doing this for a long time, and you and I both know some of the folks that have been doing this for a long time oftentimes are more effective at it because they’ve kind of learned through the process. What skillset do you think an adjuster or a trucking company, that’s self-insured, what should they do? Can they do anything to increase the odds of the mediation being successful?

What Characteristics and Skills Should an Adjuster or Trucking Company Have to Increase the Odds of a Successful Mediation?

Richard Kraege:

I think that the adjusters are just like everybody else. They’re just trying to do their job the best way they can do it, but the more experienced you have, the better you are. By the way, an adjuster is somebody who works for an insurance company and comes to a mediation with the defense lawyer. They’re pretty much in the same role as the plaintiff in that they are the decision makers. They get advice from their lawyer just as the person who’s injured gets advice from their lawyer.

So, I think the more experience they have, the better. As the years have gone by, the decisions aren’t made sometimes by those people who are in the room. June Sanders is an exception to that. She can make the decision. She can make the calls, and her company will back her up. Other adjusters get their authority from a committee, or a boss, through a program that the company has to figure out what their risks are, and how much they should pay on this case and that case.

Those people, I think their roles are kind of marginalized from where it used to be. Adjusters obviously do a lot better if they have the same qualities we’ve been talking about. Just treat people like you want to be treated, respect them. Be affable. It gets you a lot longer than you would otherwise.

David Craig – Host:

I would say, I mean I agree with you. I mean it’s amazing the difference between somebody like June who seems to care, who does care about the process. She’s very involved. I mean, she has a job to do. She’s going to do her job great. She’s going to the protect the company, but at the same time, she’s a human being and she treats other people like human being. She usually comes in and tells my clients she’s sorry for their loss. There’s other people like her that you don’t quit being a human being just because of whatever your job is, whether you’re a defense lawyer, or a plaintiff lawyer, or an adjuster, or a trucking company.

The best ones I’ve seen are the ones who understand that. You can have a respectful disagreement on the law. You can have a respectful disagreement on the value or how this case will come out at trial, but there’s ways to do that that people tend to and make things easier to come to an agreement.

I had a semi case was a wrongful death case where a lady’s husband was killed. I had the client, the widow at the mediation with her mother-in-law. I had, who I consider one of the best defense lawyers in the country on the other side. I had you as the mediator who I think is one of the best mediators in the country, and I think I do a fairly good job.

So, we had three ingredients that I think increased the odds of a successful mediation. Opposing counsel and I were going to have disagreements, but they were going to be respectful. We were going disagree on value, but it was going to be respectful.

But then we had somebody fly in from out of state who made my client physically ill during the mediation, and I know you remember it to this day, and she was throwing up.

I will say but for you, but for the defense lawyer and for me, the three of us together were able to continue to work through that process, but she came in and didn’t treat my client as a human being. She just said horrible things that just upset my client.

I would just say that that is counterproductive. I mean, it just doesn’t work to insult people or to attack people. I don’t care which side you’re on. As a plaintiff lawyer, it doesn’t help you to go in and start saying horrible things about the insurance company, or the defense lawyer, or the defendant. I think that unfortunately, some people don’t get that, and they come in and just say really bad things. I honestly believe that that really hurts the chances no matter who you are. If you’re like that, it hurts your chances of success.

Richard Kraege:

It certainly does, and I’ll never forget that case. That was something that is difficult to get out of my mind. You and I and the defense lawyer worked for, I think it was close to, it was over an hour. I know it might have been two hours before we even wanted to go into a room with both sides because we were trying to protect your client. She had lost her husband. She was in one car with one of her children, her husband’s car was in front of her, and so she watches her husband die when the truck comes across the center line and hits them head on.

So, I’m sitting here and I get goosebumps just even talking about that because it was such a difficult situation. That’s why we spent so much time with them. Yet, what happened when we got together was not a pleasant outcome just because of what that person from out of state said. She didn’t treat your client like a human being. So, we had to kind of resurrect that after that and that was really, really difficult.

I know that woman. We’ve talked about her and her family since then quite a bit I think. I know you’re the kind of person who made friends with her at the beginning, that she counted on you through the lawsuit, and she respected your advice. Then, you took really good care of her in getting a good result for her, and then you even keep in touch with her until this day.

That’s unbelievable and it shouldn’t be unbelievable. To care that much, and nobody would ever need it more than that woman because she was so upset. Her life was just changed forever in the blink of an eye. What you did for her and the way she thought of you I think was really unusual and really admirable.

David Craig – Host:

I think that I’m in a fortunate profession. I have clients who come here who visit me, who bring their kids back, who let me know how their lives are going, who come in and still hug me years later. I’m very grateful and very blessed in what I do.

The funny thing is, we had a courier come in this morning at our office, and he used to deliver our payroll, but we switched payroll services. So, he hasn’t been here in the last two years. He said he was in the neighborhood and he just wanted to come in and say hi. He goes, “I used to deliver here.” He goes, “You are my favorite people. Your receptionist, you always treated me with respect. You always treated me so well, and I don’t get treated that way anywhere else.”

So, it’s just human. I think what helps our law firm, we treat everybody, I don’t care who you are, we treat you all the same. I think that same skillset, I mean that’s how you are. You treat everybody well, and the defense lawyer we were just talking about, he treats everybody well.

Because of the three of us, we were able to work through a horrible adjuster and get a case done. I have had other cases where adjusters have been really good human beings. I’ve had defense lawyers who have been really good human beings. I’ve had truck drivers who killed a client, asked to come to the mediation, and with tears in their eyes, apologized to my clients and told them how their life had changed, that they understood that their life was not affected nearly as much as my clients, but yet they wanted them to know that they never drove a truck again, and never would drive a truck again. There wasn’t a day going by that they didn’t think of our client’s family. That goes so much further in making the process easier than the ones who come in and insult you, at least from my perspective.

Richard Kraege:

So, a lot of those people who come in and insult the clients don’t realize what they’re doing. They’re doing what they’ve been trained to do and what they think is the thing that they should say to the other person. Maybe they’ve got their adjuster or their client next to them and they’re trying to look good in front of them, but it doesn’t work very well, I don’t think, for either side. I think it’s terrible to treat somebody less than with full respect.

David Craig – Host:

The last thing I want to talk about with respect to mediations is so assuming we get through the process, let’s assume and we hope we have a good mediator, we have good lawyers on both sides, and a good insurance person. Then, the challenge comes to is what is the value of a case? I think sometimes people think, we look at a crystal ball. We can look in there and see, well yeah, this is the value of this case. So, what do you think? How do we determine value? Is there a magic formula or is there some way we always know what the value of a case is?

How to Determine the Value of a Case

Richard Kraege:

Well, first of all, I think the defense bar or insurance companies think that a lot of people are out to get money. That’s what they think, and I don’t think that’s really the case. I think people who go to lawyers for things like if they weren’t helped at the scene, if an adjuster disrespected them on the phone, and told them their case wasn’t worth anything, and you’ve heard me say, I think when I’m talking to people that plaintiffs, that money doesn’t equate with injury, and so what we do is try to value a case in terms of money, but that isn’t the first thing in the client’s mind. So, I think usually they’ll follow your lead or other plaintiff’s lawyers leads in what to do.

So, just look at any auto collision case, and say there are probably 10 things that go into valuing it or not. You have to look at who the parties are. Does the plaintiff, we say make a good witness? Judgey, yes, but my wife, she couldn’t stand up and give a talk without weeping or her voice shaking. So, some people just can’t do that, who are great people. So, you got to be a good person, and it helps you if you can talk about your case. I think that’s the first thing. I think that how bad was the wreck is the next question. What kind of vehicle was it?

If it’s semi, it’s worth a lot more than if it’s a soccer mom who looked away because the kids were arguing in the back seat? Then, what was the course of treatment? Did the person go to the emergency room? Did they have surgery? What was their course of treatment?

Unfortunately, the worse you hurt, the more you go to a doctor or say go to a hospital, the more your cases is worth sometimes. So, that’s horrible because when we say you have a good case, that’s a bad result for the plaintiff. So, I think we look at all those factors in figuring out what it is. Then, we’ve got years of you and I put together, and we’ve got what, 90 years of experience. So, we know something at this point about valuing cases.

David Craig – Host:

One good point, you started off saying, and I’ll confirm that, is that I don’t think people are out for the money. The majority of people, and I’m sure there are exceptions, but I can tell you that no big case, no significant, no wrongful death semi wreck type case has a client ever come to me in the beginning and asked me, “What’s the case worth?” That’s never been the first question. They always want to know, “Why did this happen? Tell me what happened. Why did this truck cross the center line?” Even in the one we were talking about, she never asked me what the value of the case was. She listened to me down the road, but she was more worried about why it happened.

I’ve had cases where I’ve settled, where we’ve taken less money. I settled on a trucking case down in Kentucky where we took a half a million dollars less if they agreed to make changes in their trucking company. So, it’s not always about money. It’s about respect. It’s about listening to their story, understanding their story, and appreciating the loss because like you said, there’s no way of knowing exactly what the value of a case is.

I mean, you go by experience and we can guess. We can make educated guesses, but until you see what that jury looks like, I’ve had cases where my opinion changed when I saw the jury panel. Because I looked at the jury panel, I thought, sometimes it’s like, “Oh my goodness, that’s really good for us,” and other times I’ve looked at it and said, “Uh oh, that’s a problem,” and so you don’t know until you show up. I tell my clients sometimes that I know my people. My office, as you know, I have very little turnover. I’ve had people with me for 30 years, 30 plus years, and I know my employees very, very well, but I cannot put them in a room and give them the facts of a case and guess what number they’ll come out with. These are people that I know better than my own family, and if I can’t guess the value that they’re going to give me on a piece of paper, then how in the world would I guess six, or seven, or nine, or twelve, whatever it is, strangers are going to give me? So, there is no magic, and there is no way to know for sure.

Richard Kraege:

No, there isn’t. I do think it’s a matter of, unfortunately for the plaintiff, the client, they’re put into a position of being a better. Somebody who bets. It’s analogous to betting on a basketball game. “I’ll pay $10 and hope to get $50, because I think this team’s going to win.”

Well, there’s so many factors that are involved in a basketball game, and there’s so many factors involved in a trial, that you just never know what’s going to happen. You can have a great jury. You can have one person who turns the other five around. If we have six people on the jury as you know it has to be unanimous. Usually, we go by majority. In some states, you don’t have to have all six. You have a majority maybe. What is it in Illinois?

David Craig – Host:

I mean a lot of states, it is completely different. Indiana’s one of the few states I think that requires unanimous, and so that makes it a lot harder.

Richard Kraege:

It does make it a lot harder. Can’t get six people to agree to anything, and so that’s why cases settle. I think that, and the cost, and the risk. The risk is what we’re talking about. We don’t know what the jury’s going to do until they come back into the room. As you know, for us lawyers, that’s the most nervous time that we have is when we’re waiting for the jury to come back in the room. Then, when they walk in, you look at their faces, and you try to think look at them, and see what they’re thinking, or whether they’re looking at you or not. So, it’s an icy game, and that’s why, but it isn’t a game. The jury system and our American legal system is the best in the world. It really is, but it’s tedious. It’s slow. The outcome’s uncertain, and so those factors make things difficult to figure out what the value of a case is.

David Craig – Host:

So, Dick, you were a civil litigator. You did insurance defense work, and you did other types of civil litigation. You did business law, you did real estate, and you did land use stuff. I mean you did all kinds of stuff, and now you’re a full-time mediator. So how does this compare to practicing law, to actually being in the courtrooms or being a lawyer, doing lawyer stuff? Obviously, but as a mediator, how does this compare?

Richard Kraege:

Well, I think it’s just because it’s the way I’m made. Like I said, I love people. To me, I like lawyers. It’s like a club. It’s like a fraternity. It’s like, you walk in the morning and somebody says, “How’d your son do on this?” We know each other, we know our kids, we know the spouses, and so, I think that’s what really helped me to do the job that I have.

If I had been a lawyer, you have a stressful job, a really stressful job. If I’d been a lawyer at my age, I’m in my seventies now, I would’ve retired a long time ago because it takes so much out of the plaintiff’s lawyers and the defense lawyers.

Yeah. I’ve had retirement discussions with a defense lawyer this morning, and what he was going through, he just had a surgery, and he said, “You think my intestine surgery was related to stress,” and that was rhetorical question.

David Craig – Host:

I had one, but mine was from eating hotdogs.

Richard Kraege:

That’s correct!

David Craig – Host:

I think you obviously love what you’re doing, and that’s what makes you good at it. There are other mediators who don’t love what they’re doing, they’re just doing it because that’s an alternative business plan.

Richard Kraege:

Right. I love it.

David Craig – Host:

I think that’s the same way with lawyers. I mean, it’s so easy for me to get up in the morning and so easy for me to work six, seven days a week because I love it. I mean, I literally love doing what I do. I’m like you. I love defense, I love people, I like insurance people. I like defense lawyers, for the most part. I think it is helpful if you like people, and that’s why I like jurors. I respect them. I respect my clients. I respect the other side, and I think that’s important, and you certainly can tell in a mediator the ones who respect of people and who care about people, versus those who don’t.

Richard Kraege:

Right. Agreed.

David Craig – Host:

Well, anything else you want to add, Dick, about mediations that we haven’t talked about?

Richard Kraege:

Well, I don’t think so, Dave. I mean, I’ve really enjoyed this conversation. I feel honored that you’ve asked me to do this, and boy, we ought to sit down and have a beer sometime, have the same conversation.

David Craig – Host:

Absolutely! That’s one of the things is that I really appreciate you taking the time and sharing your insight. You have a lot, and I think it’s helpful to people. I really enjoy when you and I mediate cases and we get to spend time together. That’s one of the things I really miss about not being in-person mediations is that I really enjoy just catching up with people and spending more time. With the Zooms, it’s like you spend less time than what you do in person. So, I’m glad we’re starting to get back into that and do it. So, then I look forward to the next time I have a mediation with you as well.

Richard Kraege:

Thank you. I will also.

David Craig – Host:

This is David Craig, and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website, ckflaw.com. Or if you’d like to talk to me, you can call 1-800-ASK-DAVID. If you would like a guide on what to do after a truck wreck, then pick up my book, Semitruck Wreck: A Guide for Victims and Their Families. It is available on Amazon, or you can download it for free on our website, ckflaw.com.