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The POWER 30: Dan O’Leary

Minnesota Lawyer//June 22, 2023

The POWER 30: Dan O’Leary

Minnesota Lawyer//June 22, 2023

Mansur & O’Leary, PA

Years of education have taught lawyers to revere stare decisis. Practicing has told lawyers to learn from more experienced lawyers.

But there’s also a place for innovative strategy, said Sunfish Lake attorney Dan O’Leary. “Always think outside the box. Lawyers are bad at that.”

For example, a motor vehicle accident may involve multiple defendants, a plaintiff’s underinsured motorist coverage, and an excess damage claim. The lawyer must consider the most advantageous way to settle the case so that the insurance pool is maximized. That may be particularly true in underinsured claims and bad faith claims against the plaintiff’s insurer. “What order of the cases is the most advantageous?” O’Leary explained.

Also consider the various sources of recovery when deciding when and if to depose a defendant or a witness. Taking a deposition may make the witness more comfortable at trial and that may not help the case. Not taking a deposition may disconcert and confuse the opponent. Maybe it’s best not to depose a party who can’t hurt the client anyway. “Ninety-nine percent of lawyers will say take the deposition and discover the bad testimony. Every rule must have an exception. Consider the exception,” O’Leary said.

Strategy may also dictate when a case is sued out. A client’s physical condition may deteriorate, requiring more and more expensive care. Or they may sustain another injury. A plaintiff with a soft tissue injury may turn out to need a spinal fusion or treatment for chronic pain. Most clients will accept that it is necessary to wait, O’Leary said.

In other cases, the lawyer may make an immediate demand because the policy limits are low. In those cases, O’Leary will limit the insurer’s response window to 45 days. Short v. Dairyland says 30 days is enough time to respond to a bad faith demand against an insurer, and 45 days is a 50% increase, he says. Warn that the offer will be revoked, never to be reinstated.

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