Most evenings for veteran insurance defense litigator Mark Pennow are spent preparing for the next day’s mediation.
Pennow, of Denissen, Kranzush, Mahoney & Ewald SC, Green Bay, said he finds great satisfaction in settling cases because there aren’t too many that really need to be tried.
A few years ago, he and other members of the State Bar’s litigation section board conducted an informal study of the civil cases on CCAP, concluding that only about 5 percent don’t settle pre-trial.
“The cases that go to trial fall into two categories,” Pennow said. “One is the type that presents an irreconcilable issue that has to see the light of a courtroom or possibly an appellate courtroom.
“The second is the cases that are tried because of an error in judgment — somebody’s not getting it. They’re not understanding the true potential of the plaintiff’s claim or the plaintiff has his or her head in the clouds in terms of what the case is worth.”
Pennow’s job as a mediator, he said, is to keep clients in the second type of case “focused on business decisions rather than how they feel about the case.”
“If I can do that,” he said, “there are few cases that shouldn’t settle.”
Wisconsin Law Journal: What’s your style of mediation?
Mark Pennow: It generally doesn’t involve telling the parties what they should do. I tell them openly right at the beginning that ‘I’m not here to make a decision; I’m here to help you make a decision.’ I am willing, if I’m asked, to tell people what I think about a case’s value and potential. But I encourage people in the strongest possible terms to not ask me that question unless they want to hear my answer, because I’ll give them a straight perspective.
WLJ: What changes have you seen in mediation lately?
Pennow: The insurance industry has changed dramatically in recent times. I’ve seen a general reduction in the autonomy and authority of claims people. More and more often these days, they’re sent to mediations with authority that’s been set and it cannot be the subject of modification. So, to an unfortunate extent, mediations aren’t as valuable to insurers as they once were, because their representatives are not free to adjust to the case in real time and make decisions that might profitably be made in mediation — only to be lost in the weeks following because the opportunity has disappeared.
Now, I will say, in defense of the people who come here on behalf of insurance companies, that they’re increasingly between a rock and a hard place. The insurance business is getting tougher all the time. It’s harder to make ends meet and now that their investments are not doing as well, they are increasingly seeking to keep indemnity payments down — to their peril sometimes.
WLJ: What’s the No. 1 mistake attorneys make in preparing either themselves or their clients for mediation?
Pennow: Failing to nail down the special damages and making sure that number is communicated to the defense well in advance of the mediation. There’s nothing more destructive to the process of settling a personal-injury claim than showing up with a chart of medical expenses that’s about $15,000 higher than the amount mentioned in the interrogatories, and that sum was never updated.
From the perspective of preparing clients, too many plaintiffs’ lawyers don’t talk to their clients about the other side of the case. Sometimes I talk about the obvious defense arguments that will be made and I can see in their faces that I’m telling them news.
WLJ: What’s your definition of success?
Pennow: Now I’m at a point in my life — and it took decades — where I’ve realized that not everything should be fought about, but not everything should be settled and put to bed. Being a mediator has helped me get to that point — although admittedly, it did take a while.