This and That by Dennis Wade


“You are entitled to your own opinion, but you are not entitled to your own facts.” Daniel Patrick Moynihan (Democrat)

Of late, charges of “Fake News” have dominated political discourse on both sides of the political aisle. And frankly, it seems that many have lost the ability to distinguish opinion from fact.  But as the late Senator Moynihan so eloquently reminded us, opinion stands aloof from facts – – objective and verifiable data.

But aside from political discourse, Moynihan’s mantra should echo in the minds of claim professionals and defense counsel. Most of what we see in the first instance is OPINION.  A claim for coverage under an insurance policy is an opinion – – a theory of coverage.  A negligence complaint is an opinion – – a theory of liability.

But here is the rub. Facts are elusive. While facts are supposed to be things that are indisputably true, they most often are in dispute between and among litigants.  So for a fact to be a fact, it must be verified – – tested against reality.

The merit of a coverage opinion or a defense theory depends on the integrity of the facts on which they are based.  This may seem like an obvious point.  But in the hurly-burly world of insurance, the temptation is to accept the facts alleged without verifying.  And that temptation,  of course, recalls the famous nuclear disarmament dictum: “Trust but Verify,” uttered by President Ronald Reagan (Republican).

Verifying facts costs money and adds to “legal spend.” But often those extra dollars yield rich dividends.  Let’s take a garden variety premises case.  True, a visit by an Independent Adjuster to take statements and photo-document the “offending” element (floor, stair tread, you name it) carries a cost.  But without verifying the facts, taking measurements, and the like, there is virtually no chance of constructing a ­­­­­­­­tenable defense theory.  And the job doesn’t end with the Independent Adjuster.  How can counsel effectively conduct depositions without a visit to the scene?  Often it is hard to make sense of photographs without a live, 3D visualization of the accident site.

So, whatever your take on “Fake News,” remember to focus on the “fake” facts that lurk in coverage and defense matters. And that’s it for this This and That. If you have any ideas on how best to move from opinion to fact, please call or email Dennis.