Hon. Thomas Drechsler and Hon. Robert D. Foiles | JAMS
In this episode of the JAMS podcast, JAMS neutrals Hon. Robert D. Foiles (Ret.) and Hon. Thomas Drechsler (Ret.) explore how personal injury cases are evaluated, what makes a claim ready for meaningful settlement discussion, and how digital evidence, credibility, and settlement strategy can shape the path to resolution. Drawing from their experience on the California and Massachusetts trial benches and as trial lawyers, they outline why early fact gathering, full disclosure, and a candid assessment of downside risk are often critical to resolving claims efficiently.
The neutrals explain that personal injury outcomes are shaped not only by medical records and damages figures, but also by how thoroughly counsel gather the facts, the open disclosure of said facts, and how these facts from the client and witnesses are likely to be presented. They provide practical insights into when a case is ready to mediate, how vehicle data and video can confirm or upend a theory of liability, and how parties can think strategically about what to put on the table and when. Throughout the conversation, they examine:
- The signals that a personal injury case is ready for productive settlement discussion, including complete medical and wage loss documentation and a carrier prepared to evaluate the claim
- How digital evidence, like event data recorders, surveillance footage, and incident video can strengthen or undercut a case, and why it should be exchanged and analyzed well before the mediation
- Why credibility, preparation, and a clear-eyed view of the downside risk often determine whether a case resolves and at what number
This episode provides practical guidance for plaintiff and defense counsel, claims professionals, and carriers navigating personal injury claims, emphasizing the importance of preparation, candor, and honest evaluation in resolving disputes efficiently and fairly.
Transcript
Moderator (00:00:00): Welcome to a special podcast series from JAMS: The Mediation Table, Conversations in Conflict Resolution. This series focuses exclusively on mediation, exploring key issues, strategies, and best practices with leading JAMS neutrals and industry professionals. In this episode, we’re talking about personal injury mediation and how digital evidence, credibility, and settlement strategy can shape the path to resolution.
Moderator (00:00:27): With us are two distinguished JAMS neutrals who bring deep experience from the bench and the mediation table: Judge Robert Foiles, who spent nearly three decades on the San Mateo County Superior Court, and Judge Thomas Drechsler, with decades of experience as a trial lawyer and a judge on Massachusetts’ Superior Court.
Moderator (00:00:54): So, Judge Drechsler and Judge Foiles, welcome to the podcast.
Judge Thomas Drechsler (00:00:57): It’s great to be here.
Judge Robert D. Foiles (00:00:58): Thank you so much.
Moderator (00:01:01): Judge Drechsler, I’ll start with you. Just tell us, first of all, from your experience: how do you decide when a personal injury case is ready? How can you tell when it’s ready for meaningful settlement discussion?
Judge Thomas Drechsler (00:01:14): Of course, I rely initially, when the parties schedule a mediation, I look forward and make sure that I get their written submissions in advance. And if for some reason I feel that there’s something missing from the written submissions, in the pre-mediation call, I’m going to ask about that and ask for the further information that I think that I need to help everyone evaluate the case.
Judge Thomas Drechsler (00:01:41): I think it’s really important for everyone to understand coming into a mediation that the observations and input and evaluations of the mediator are only as good, you know, as the information and data that the lawyers provide. So the more informed I am as a mediator, or any mediator is, the more valuable and productive the session.
Judge Thomas Drechsler (00:02:03): So if I think there’s something glaringly missing in the pre-mediation call with one side or the other, I’ll ask about it.
Moderator (00:02:11): And Judge Foiles, what about you? In terms of a dispute ready for mediation, does it have to go through sort of that discovery process before it’s ready?
Judge Robert D. Foiles (00:02:21): I tell lawyers all the time, they don’t need to spend a lot of money.
Judge Robert D. Foiles (00:02:25): I think initially they really have to be the fact gatherers: a good conversation with your client, probing questions that any good detective might make in terms of understanding the pros and cons of the client’s story. Maybe visiting the scene, if you can do that, if it’s somewhat more complicated.
Judge Robert D. Foiles (00:02:43): And then collecting as much as you can before you send that packet off to the insurance carrier, namely all of the medicals that can be gathered up to this point and all of the wage loss claims if there are some, and try to put a packet together to the carrier. And you send that off to the defense attorney if you think you’re ready and you know the facts and you feel comfortable.
Judge Robert D. Foiles (00:03:05): You don’t necessarily have to even have a deposition. And then, once you’ve sent that off to the attorney, hopefully they’ll ship that off immediately to the carrier, and follow up in a few weeks and see if the carrier needs anything more, because you want the carrier to be ready to talk and be ready to put some money on the claim.
Judge Robert D. Foiles (00:03:23): Sometimes I reach back out to the defense attorney, find out what’s needed, and if there’s more needed, provide it, and hopefully you can do it early and not have to spend a lot of money to get there. And now your case is ready for an early mediation.
Moderator (00:03:37): And do you have to have a number in mind if you’re a claimant?
Moderator (00:03:40): Is it something where you need to have something going in, or can you start a mediation and sort of feel your way toward a number?
Judge Robert D. Foiles (00:03:47): I think plaintiffs’ lawyers usually have an idea of what something is worth; they’re looking for reassurance and evaluation. And early on they haven’t put the money into it, so there might be some money left on the table in that sense, but that, that money’s often eaten up in litigation costs. You have to be flexible, but you’ll have some idea of what it’s worth, maybe, going in. Hopefully you know the downside risks.
Judge Robert D. Foiles (00:04:11): That’s one of the things I think the vigilant plaintiff’s attorney has to be ready for, and be his own or her own sleuth in terms of ferreting out the facts.
Moderator (00:04:20): Judge Drechsler, we now have video, we have vehicle data, and other forms of hard evidence that have changed the way personal injury cases are evaluated.
Moderator (00:04:31): How has that happened? What impact have those developments had?
Judge Thomas Drechsler (00:04:36): It sure introduces another dimension to the litigation, valuation, mediation, and trial of personal injury cases. Or the technology now allows them to, first of all, go into the vehicle data, the so-called black boxes, to do a forensic exam, which gives you speed, braking, things like that, that just didn’t exist years ago.
Judge Thomas Drechsler (00:05:03): Video has become so important. They’re able to even analyze video, and we often see videos of the actual accident, or the speed of the vehicle prior to the accident, or an industrial accident, or an incident in a bar room, a fight or whatever. There’s so much video out there now that it’s become a really important component.
Judge Thomas Drechsler (00:05:27): And I insist, if there’s a mediation involving a case that there’s an important video component, on seeing it beforehand and making sure that the parties have exchanged it, because it can really change the dynamic. The video doesn’t lie, but it may be hard to see; it may have limitations. And, of course, the speed of the video versus the speed of the vehicle is a subject of scientific analysis.
Judge Thomas Drechsler (00:05:52): So it really, it’s really an area that, that’s growing every day, that’s changing every day.
Judge Robert D. Foiles (00:05:58): Tom makes a great point. I had a case recently where, you know, we had an eyewitness say the driver was going 100 miles an hour, and we had not yet gotten the black box, the electronic data recorder, and we got that.
Judge Robert D. Foiles (00:06:11): Turned out the plaintiff was driving, I think, 68 miles an hour. So, you know, what a contradiction. It helped us settle the case.
Moderator (00:06:20): What kind of risks are there with this kind of digital evidence?
Judge Robert D. Foiles (00:06:25): I warn lawyers always that smoking guns often turn into Led Zeppelins.
Judge Robert D. Foiles (00:06:31): They blow up in your face. They just don’t always go as you hope; there’s always a value to trying to air it all out before trial.
Moderator (00:06:39): Absolutely. So let’s assume that the parties understand that the evidence would be admissible. The counsel understands that the evidence is strong.
Moderator (00:06:51): What should they do to make the mediation more productive?
Judge Robert D. Foiles (00:06:55): I think you just write an excellent mediation brief. You put that all in there. You explain yourself away so that people understand that this evidence is definitely going to come in; the probabilities are extremely high that they’re going to come in.
Judge Robert D. Foiles (00:07:09): And show that, share your brief with the other side so that they can then talk to their side and their clients to talk about that information. And then, obviously, it’s not always absolutely certain, so I think leave it to the mediator also to determine the probability that it’s coming in, if it’s 100% or if there’s some likelihood it might be kept out.
Judge Robert D. Foiles (00:07:28): But that’s something we can talk about in the mediation as well, and that’ll add value.
Moderator (00:07:34): And Judge Drechsler, is there a certain way that you like for counsel to assemble and organize their mediation brief, to sort of explain the damages, to show you the actual expert analysis?
Judge Thomas Drechsler (00:07:49): I leave it to them to organize it, but then, after I read it, as I said earlier, I, in the pre-mediation call, I’ll often ask or inquire about things that I think are absent. Sometimes they may not have thought it was important. I would hope that they would emphasize the strongest part of their damages case: for example, the extent of the physical disability and the length of the disability, the permanence of it or lack thereof, the length of time that the person was unable to pursue employment or their profession.
Judge Thomas Drechsler (00:08:20): Those are the things that we want to hear about. And also the pain and suffering and emotional distress are such, they vary so much from case to case, so it’s up to the lawyers to say, “This person suffered a real loss, and here’s why.” And maybe have a statement from the plaintiff’s spouse or children or whatever, explaining how this accident or incident has affected them.
Judge Thomas Drechsler (00:08:43): And that’s true of a personal injury case, even an employment case. So I think the lawyers really need to educate us, and I look for them to tell me something, and if I think it’s missing, I’m going to make that clear in the pre-mediation call and during the pre-mediation.
Moderator (00:09:01): I’ve heard both of you talk about the importance of just putting all the facts on the table, the earlier the better.
Moderator (00:09:08): Judge Foiles, have you seen a lawyer or a claimant try to be a little clever and hold back favorable evidence, and how did that turn out?
Judge Robert D. Foiles (00:09:18): Those lawyers that do not want to reveal everything usually wind up having to do so later. Obviously, in a mediation, if the other side doesn’t ask and they haven’t done their homework, it’s not your obligation to give them everything.
Judge Robert D. Foiles (00:09:35): But, on the same token, you have to finely walk that line so it doesn’t look like you’re holding, you’re not going to commit any untruths, but if they don’t ask, you don’t always have to tell them. I think that as much information as you can get out so that the carrier, and I’m thinking on the plaintiff’s side, how much you’ve got to give them, everything they need so the carrier who wants to turn his or her case over has what he or she needs to make a reasoned offer. And that’s what I see often, is that people aren’t, because they’re overworked or because they’re just disorganized, they’re not turning over everything they need.
Moderator (00:10:13): And Judge Drechsler, obviously trust, credibility, those are such huge issues in a mediation. Can withholding some strong piece of evidence until a later point in the mediation, can that hurt a side’s credibility?
Judge Thomas Drechsler (00:10:27): It certainly can hurt the ability to settle the case appropriately. They’re going to get the information eventually anyway. So, yeah, you want everything on the table if you can. The other thing is that I watch the litigants during a mediation. It’s great if they’re in person, but even on Zoom, you get a sense of someone, how they’re going to handle themselves in a courtroom.
Judge Thomas Drechsler (00:10:48): And the lawyers sometimes are interested in your view as to the credibility of the witness statements that you’ve seen, recorded statements, the deposition excerpts that you’ve seen from witnesses. I’m sure, again, as Bob alluded to earlier, you might think you have a great point to make. And just a few weeks ago, I had one where the lawyer gave me some text messages that had just been revealed that he felt were really favorable to him.
Judge Thomas Drechsler (00:11:17): And I hated to deflate his enthusiasm, but what he was giving me was important; it was positive for his side, but it wasn’t as earth-shattering as I, in my opinion, as he felt it was. And he welcomed that, because he said, “I wanted to hear what you thought of that. I had studied everything else, and it was a late submission.”
Judge Thomas Drechsler (00:11:40): And I said, “Look, I think it’s helpful to you. Do I think it’s a game changer or earth-shattering? No. I think it’s really helpful.” But I think it helped him and his client, because they were hearing from a completely objective source who’s tried and presided over a lot of cases: this is what I thought of it.
Judge Thomas Drechsler (00:12:00): You don’t have to agree with me, but that’s my honest opinion of what it is and how significant it is. And I hope that when you give an honest appraisal like that, you’re helping the parties inform both sides, whether it’s an adjuster, a carrier, or the person making the money decisions, how strong the case is and what are the dangers.
Moderator (00:12:21): And Judge Foiles, are there any practical presentation tips that you would offer attorneys in presenting their information and presenting their case?
Judge Robert D. Foiles (00:12:32): If there are video reenactments or anything that they have, that’s always extremely helpful. It’s more them providing me as much as they can, and then what I like to do is handicap their probabilities of success. And they’ll do like what Tom said: what’s the impression of the client? What is their veracity? What about the theory of the case, or the eliminate motions, or the issues of comparative fault?
Judge Thomas Drechsler (00:12:58): And I find a chart, when they prepare a chart, whether it’s about the chronology of the injuries, a chronology of the medical treatment or, and a chronology of losses, financial losses, for example: weeks of work that were lost, weeks in which the work was limited, maybe there were no overtime opportunities because of a physical disability.
Judge Thomas Drechsler (00:13:19): Anytime you can chart things out, I think it helps educate the mediator, and it helps educate the other side.
Moderator (00:13:25): Yeah, absolutely. And Judge Drechsler, beyond documents, how do you think about or assess a claimant’s credibility and personal story? How do those two elements affect the evolution, or the evaluation rather, of a PI case?
Judge Thomas Drechsler (00:13:39): If I have the advantage of seeing the person, in person or on video, of course that helps. But sometimes the facts and the evidence and the circumstances also affect your view of the particular credibility of the plaintiff or defendant or important witnesses. If someone says to me they were sober but the blood alcohol level, let me just give you an example, was 0.25, well, the credibility of the assertion that I was sober is not quite as convincing, is it?
Judge Thomas Drechsler (00:14:05): And the same is true of other things.
Moderator (00:14:07): Judge Foiles, Judge Drechsler talked about discrepancies between what they say and maybe the evidence. Any other kind of things that you’re looking for when you’re judging credibility?
Judge Robert D. Foiles (00:14:17): I want to hear the story of the client, or whoever the witnesses are I can talk with when I’m there.
Judge Robert D. Foiles (00:14:24): And then often the attorney will want an assessment of how I view them, because their credibility and veracity is going to be so important. So I’m looking at their story, I’m looking at their temperament, I’m looking at whether they can tell the story. Are they a good protagonist of the events, or are they poor?
Judge Robert D. Foiles (00:14:41): Do they get sidetracked? Do they have a hot temper? Those are all the factors you put together, and then you can, when the attorney asks, you can give them a fair assessment of the probability of the client in trial. And often, if there hasn’t been a deposition, the other side’s asking you those questions because they want to give them sort of an assessment of how the client’s going to be viewed, or at least they want some reassurances as to what their thoughts are.
Moderator (00:15:08): I really appreciate both of your, both of your answers, and I want to end on one final question. Maybe it can be a practical question that an attorney listening to this can take away. But if you were to give counsel on either side, or each side, one thing they can do to improve their chances of resolving a personal injury case at mediation, what would it be?
Moderator (00:15:34): Judge Drechsler, maybe I’ll start with you.
Judge Thomas Drechsler (00:15:36): Preparation, and reflecting that preparation in the presentation at the mediation and the submissions. Because I’ll tell you, not only does it help you as a lawyer prepare your case to prepare for mediation with a submission, and it helps you explain to the mediator what’s important in terms of evaluating the case, but it’s really important that the other side knows that you’re ready, that you’re prepared, that you’re thorough.
Judge Thomas Drechsler (00:16:04): I often wonder, although lawyers sometimes give me pre-mediation memos and they don’t want me to share it with the other side, but I sometimes invite them to, because I’m so impressed with the submission that I think it’s important for the other side, both sides, to see that the lawyers are well prepared, that they’ve thought about this, they’ve made a really informed and comprehensive submission to the mediator.
Judge Thomas Drechsler (00:16:29): It’s likely that when they go to trial, they’re going to exhibit those same legal talents, and I think that’s really important. If the submissions at the mediation are not well thought out and well prepared, then the success at the mediation, the likelihood of success at the mediation, is not as good, and the likelihood of success at trial isn’t as high.
Judge Thomas Drechsler (00:16:49): So preparation, and showing the other side you’re ready to try, helps resolve cases.
Judge Robert D. Foiles (00:16:55): On the other side of that, as well as they are prepared and as well as that lawyer can argue his or her case, I always tell them it’s the lawyer who understands how the client could lose; it’s also hugely important, because we always, when we finish a trial, as an old trial lawyer, you always think you killed it. But the reality is, the jury usually comes back where you assessed it at the beginning, when you looked at all the facts from a bird’s-eye view. So always be acknowledging the fact that your client could lose, and those mediators, or those, those lawyers, that come into mediation understanding the downside risks as well as the upside usually get their cases settled at a pretty good assessment.
Moderator (00:17:45): Judge Drechsler and Judge Foiles, we really appreciate your time. It’s been a wonderful conversation.
Judge Robert D. Foiles (00:17:51): Thank you so much for having us. Appreciate it.
Judge Thomas Drechsler (00:17:53): Yeah, thank you very much.
Moderator (00:17:56): You’ve been listening to a podcast from JAMS, the premier provider of alternative dispute resolution. Our guests have been Judge Robert Foiles and Judge Thomas Drechsler.
Moderator (00:18:04): For more information about JAMS, please visit http://www.jamsadr.com. Thank you for listening to this podcast from JAMS.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.