This and That by Dennis Wade

In 1L, a wise, legal writing adjunct professor gave me some excellent advice: “Don’t Let The Perfect Get In The Way Of The Good.” What he meant, of course, is writer’s block is most often a fear, an internal struggle to create the “perfect” argument, the telling analogy.  That mindset, he preached, inhibits the flow of what ought to be said. “Write, write–and then revise, revise, refine and refine again.”  The result, often, may not be perfect, but it will get the job done. I took that advice to heart.  And so, when my children complained about the difficulty of school essays, I would tell them: “Just do a ‘brain dump’ and see what comes out.  Then set it aside for a piece and return to the essay to revise and refine–and you’ll be surprised by what appears on the page.”

In Claims and Litigation all too often the Perfect does indeed get in the way of the Good. In fact, sports and what we do are closely analogous. Why do you think top performing athletes supplement coaches with sports psychologists? Golfer Jordan Spieth now works with Michael Phelps, who has enough Olympic gold around his neck to stoop with its weight (23 gold).  I could go on, with sport analogies, ranging from swinging a club to competitive swimming. A while ago, I read a book by Bob Rotella, a renowned sports psychologist, styled Golf Is Not a Game of Perfect. True, Rotella said, you could try to hit the “perfect” shot, say, a hook around a tree from the high rough.  But, he said, “What are the probabilities of success?”  Isn’t it smarter to play a safer shot into the fairway, he suggested, and hope for a good wedge into the green and a one putt par. Playing for Perfect might well take you out of tournament contention.

Outcomes in Claims and Law often turn on percentage plays. So, why get hung-up on the Perfect when the Good, most often, is what makes the difference between failure and acceptable loss ratios and happy clients?

A defense verdict, summary judgment awards and favorable DJ rulings are Perfect outcomes. But, like Rotella, our clients invariably ask us to “handicap” or assess the percentage of that Perfect outcome. I’ve never liked giving percentages. But discipline in the arena of litigation, just as discipline on the playing field, requires an honest assessment; it’s a matter of balancing risk versus potential reward.

Strive for the Perfect but don’t let it lead you to foolish decisions about managing risks in claims and litigated matters. And that’s it for this This and That. If you have thoughts on how best to balance the Perfect versus the Good, please email or call Dennis.

This and That by Dennis Wade

In the check-out line at Whole Foods (now one of the tentacles of Amazon), I heard a Mom say to her middle-schooler: “Why is everything with you a negotiation?”  I can’t say whether the dinner menu was in dispute or something else.  But it got me thinking – – in the career of defense lawyers and claim professionals, everything is truly based around negotiations.  And maybe, just maybe, that argumentative youngster is headed for such a career.

In litigated matters, everything is about the outcome: What you want and what the counterparty wants.  And so, I decided to put down some of the common traps to negotiating a successful outcome.

First, you must achieve absolute clarity about the desired outcome, typically expressed in a dollar range.  Too many negotiations go south because discussions begin before you really know where you want to end-up.  Soliciting a demand before you have decided on your goals is almost always a mistake.  Without knowing your optimum range, you will be powerless to anchor the counterparty’s expectations.  If you simply reject a demand, without a signal about your thinking, future discussions will inevitably be linked to the initial demand.  Negotiation is a process and must be treated as such.

Second, you and all relevant decision makers must be on the same page before any discussions take place.  In other words, you must first achieve a firm consensus about the range of an acceptable commercial resolution.  Many negotiations fail for want of that consensus.  Here are some questions to consider: Will the resolution under consideration impact the insured’s financial position?  Does the resolution require the assent of more than one insurer (an especially relevant question in London market practice)?  Has the excess insurer been brought on board if there is any chance that layer will be reached in negotiation or otherwise?

Finally, and perhaps most important, I find candor is a key in successful negotiations.  To be sure, you will deploy all the leverage at your command.  But a failure to acknowledge to a counterparty a potential vulnerability in your case lessens your credibility and diminishes the chances of getting to your ideal outcome.  And often candor about a potential vulnerability can be turned into a strength because it shows you have considered it and likely have developed a strategy to overcome it at trial if necessary.  So, next time, try the 3C’s – – Clarity, Consensus and Candor.

And that’s it for this This and That. If you have any thoughts about other negotiation strategies, please email or call Dennis.

This and That by Dennis Wade

My general theory of jury selection is quite simple: I opt for potential jurors who seem to like me and reject those with whom I seem to have little rapport.  To a large degree, despite careful jury instructions, a trial often devolves into a personality contest.  And the winner is the lawyer who the jury likes best.

But in recent years, I have worked with jury consultants who purport to use “science” and social media research to discover the optimum jury for a defense case. And sometimes the results are helpful. Unrestricted Facebook and Twitter accounts often yield insights about juror attitudes that would never be revealed, even under close questioning.

Recently, at an insurance conference sponsored by The Federation of Defense and Corporate Counsel, I encountered a jury consultant who seemed to talk eminent good sense. The trick, the consultant said, was not to select the right jury but to “de-select” potential jurors who have an animus against insurance and corporate interests.  The way to get there, the consultant offered, was to get rid of the “Fair and Impartial” rubric (that is, “I represent an insurer and the plaintiff is a homeowner.  While you know little about the controversy, would you agree with me that we both begin in the same place – – at the starting line?” “Do I have your assurance that you will be fair and impartial and judge this case only on the evidence before you?”).  The consultant’s point was that virtually everyone, unless they want to duck jury service, will say “Yes” to questions couched in terms of fairness and impartiality.  It’s human nature.

The tell, according to the consultant, is to ask questions about life experiences. “Did anything ever happen to you, a family member, or a friend that made you angry with [an insurer] or [a corporation]?  “What angered you?”

Of course, such broad questions, pose a risk of tainting the jury pool. But often, especially in Federal Practice, such questions may be embedded in a jury questionnaire that is prepared and circulated beforehand.  But even in “free form” selection, often with the court’s cooperation, such questions may be answered in chambers or at the bench.

While fairness and impartiality are tried and trusted themes, they rarely uncover true juror bias. Think of ways, depending on the particulars of the case, to explore the life experience of potential jurors.

And that’s it for this This and That. If you have any suggestions about your theories of jury selection, please call or email Dennis.

This and That by Dennis Wade

We recalled the IBM Selectric typewriter and the pleasure of watching and listening to the golf ball head tap dance across the page. We recalled, too, when IBM enhanced the Selectric with a ribbon to correct mistakes. Imagine that! The Selectric came-up at a bar association focus group discussion on the Practice of Law in the 21st Century. And some of the lawyers, me included, remembered practicing before the PC, email and smartphones took hold.

Technology has made us more efficient and more cost effective. But the focus group, which ranged from recent graduates to wily veterans, agreed on one thing: Technology comes with a price. Perhaps the most profound (and worrying) change is that the boundaries of what was work and what was personal time have disappeared. Who in the legal or insurance world really gets “unplugged” on the weekends or on holidays? Maybe you don’t fire-up the P.C., but the iPhone pushes work emails in front of your “leisure.” Yet, I suppose, with discipline, and perhaps therapy, some of us can really get away for a while.

Nostalgia for the good old days aside, for the most part, the group felt email and texting inhibited, rather than fostered, real communication between lawyer and client – – a key to success in any endeavor. Why is it many lawyers and claim professionals open the mail app, instead of hitting the phone app next to it? True, it saves time and perhaps the frustration of voicemail. But does it really advance what needs to be advanced? In fact, from my perspective, email chains often create more work and less clarity. Often, the best solution is to meet or to confer over the phone – – and then summarize the decision taken in an email.

Meeting or talking over the telephone also fosters professionalism and a heightened sense of respect for the other. For example, a spoken “thank you” is much better than an emoji (a term unknown in the days of the Selectric).  Personal contact and personal relationships are still important in law and insurance. Now, I’m beginning to sound like a Dinosaur. And that’s it for This and That. If you’d like to tell me what you think, please call (or send me an email with the emoji of your choice).

This and That by Dennis Wade

In February, I wrote: “When President Trump put forward 10th Circuit Judge Neil Gorsuch for the top court, the media, understandably, took sides, for and against the nomination. The only point of agreement was that Judge Gorsuch is a graceful writer”.

After a contentious confirmation hearing, a filibuster, and a rules change, Justice Gorsuch ascended to the high court bench to take Justice Scalia’s vacant seat. So, what is the early line on what type of Jurist Gorsuch will make? It’s really too early to tell. But some very interesting signs exist.

During his first day on the bench, Justice Gorsuch asked 22, yes, 22 questions of the advocates. In contrast, Justice Clarence Thomas waited 10 years before putting a single question to an advocate before him. But SCOTUS watchers eagerly awaited the first opinion to be penned by the newly anointed jurist. And that came with Henson et al. v. Santander Consumer USA Inc., a controversy that called for the Court to determine the reach of the Fair Debt Collection Practices Act – – and the penalties it imposed for unfair debt collection practices. It presented a pure question of statutory interpretation, asking whether a company (Santander) who purchased debts after a default qualified as a “debt collector” under the statute and thus subject to the penalties imposed by the legislature.

The court reached a unanimous decision: Santander, as a “secondary market” purchaser of a defaulted loan, did not fall within the embrace of a “debt collector” as defined by the legislation enacted in 1977 (before the “secondary market” even existed). By tradition the first opinion assigned to the newest member of the Court is a unanimous decision. And so, Justice Gorsuch got Henson. The decision seems to confirm two points: Justice Gorsuch is indeed a graceful writer and a “textualist” as was Scalia.

Unlike many opinions, the Henson decision reads more like a fine piece of journalism than a turgid legal exegesis. Just take Justice Gorsuch’s introduction to the controversy:

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors.

As a textualist, Justice Gorsuch recognized while it may have been the intent of Congress to curb the evils of some debt collection practices, the text of the actual legislation simply did not reach a secondary market collector. And so, Justice Gorsuch ended this way:

Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.

Although few insurance matters reach the high court, to be sure, Justice Gorsuch will parse whatever policy wording is in issue.

And that’s it or this This and That. If you have any questions or comments about Justice Gorsuch’s prose style or his textual analysis, please call or email Dennis.

This and That by Dennis Wade

“It’s like a scar on a woman’s face.”

A fine art appraiser used this vivid image to get across her view of how badly the rip in the canvas affected its value. The opposing expert, retained by the fine art insurers, used abstract words, while conceding that the “damage” was “visible” from an “oblique” view. When the loss in value controversy arrived in mediation, my real challenge was to overcome the power of plaintiff’s imagery and get the mediator to focus on the actual and quite successful repair to the canvas.

Whether it’s Fine Art or Physical Injury, words, similes and metaphors shape our view of reality. Let’s take some simple examples. Is it a “bruise” or a “hematoma”? Both may be perfectly accurate words under the circumstances. But consider how the choice in description shapes our reaction. Hematoma sounds really bad. A bruise is an everyday occurrence. Same thing with “cut” versus “laceration,” and so on.

Claim professionals and their attorneys, then, must choose their words carefully. Words and image choice have a powerful influence on how a controversy is seen — and, perhaps more important, on how it is resolved. The use of technical, medical or legal jargon often betrays the real message and confuses the fact finder.

For example, I dealt with a multi-million dollar robbery of a gold chain manufacturer that was, in fact, a genuine stick-up. My defense to the ensuing insurance claim was not “set-up,” rather it was fraudulent exaggeration of the amount of loss. I could have opened with highly technical concepts taken from my forensic accountant’s reports — inventory manipulation, roll-forward analysis calculations and the like. Instead, my trial theme was a simple mantra: “All That Glitters Is Not Gold.”

With that old saying as my theme, the jury intuitively grasped my message: The claim was mostly glitter and not gold. That theme made it much easier for the jury to process the later technical analysis put forward by my accountants. But even then, I worked with forensic specialists to translate the vocabulary of finance into a language the jury could understand.

And that’s it for this This and That. If you have any questions or comments on the importance of word or image choice, please call or email Dennis.

This and That by Dennis Wade

CAPTAIN

You gonna get used to wearing them chains after a while, Luke. Don’t you never stop listening to them clinking, ’cause they gonna remind you what I been saying for your own good.

LUKE

(sarcastically)

I wish you’d stop being so good to me, Cap’n.

CAPTAIN

Don’t you ever talk that way to me.

Pause, then hitting him.

CAPTAIN (contd.)

NEVER! NEVER!

Luke rolls down hill; to other prisoners.

CAPTAIN (contd.)

What we’ve got here is failure to communicate. Some men you just can’t reach. So you get what we had here last week, which is the way he wants it. Well, he gets it. I don’t like it any more than you men.

* * *

Towards the end of the movie, Luke takes a final stab at freedom – stealing a dump truck and taking flight. After his dramatic escape from the Florida chain gang prison, Luke abandons the truck and enters a church, only to be surrounded by police moments later. Feeling that his life is no longer worth living, walks to a window facing the police and mocks the Captain by repeating the first part of his speech (“What we’ve got here is a failure to communicate.”). [2] He is immediately shot in the neck by Boss Godfrey.

The phrase ranks at No. 11 on the American Film Institute list, AFI’s 100 Years… 100 Movie Quotes.

* * *

On Friday, today, I am lecturing on First and Third Party Bad Faith as part of a New York State Bar Association Continuing Legal Education Coverage Seminar. In preparing my remarks, the iconic bit of dialogue from Cool Hand Luke (quoted in context above)surfaced from somewhere deep in the recesses of my psyche:  “What we’ve got here is a failure to communicate.”  New York is a pretty friendly “bad faith” jurisdiction (and if you want my written submission, give me a shout). But I’ve studied cases across the country in both first and third party contexts. And what most often gets insurers and their lawyers in trouble is a failure to communicate; a failure to address the concerns of the insured head-on.

Savvy insureds, public adjusters, claim advisors and counsel often barrage Claim Professionals with complaints–about delay, the consequences of delay, the clarity of liability, and the resulting hardships of a failure to address a liability or property damage claim promptly. All too often, these pleas are met with silence, delay and, more important, a failure to require support for the claims being asserted.  A failure to communicate, a failure to address these missives, often results in an ugly paper trail when bad faith is later claimed for extra-contractual damages. Worse, often, within the claim team, a failure to communicate “bad facts’ up the chain results in later and ugly surprises. Perhaps, the best example is the failure of State Farm in State Farm v. Campbell to take on board (within the upper echelons of management) that their own accident investigator had judged the accident to rest completely and unequivocally with their insured. Ultimately, the US Supreme Court decided that bad faith damages could not exceed a single digit multiplier of actual or compensatory damages (absent “reprehensible” conduct). But still, we’re talking mega-millions.

The moral, my friends, is to address every query, politely, with questions and demands for support. The paper trail, the prettier it looks, is the best defense to bad faith claims in New York–and elsewhere.

And that’s it for this This and That. If you have better solutions, please let me know.

 

This and That by Dennis Wade

It doesn’t just tell time. It tells History. Rolex

You never really own a Patek Philippe. You merely look after it for the next generation.

So, why begin with two iconic advertising slogans for timepieces? Good question, which I hope to answer. This week I attended a client summit in which preferred lawyers and vendors such as field adjusters and experts attended question and answer sessions presented by Underwriting, Loss Prevention and, of course, Claims. There is little substitute for free exchange of ideas across many states, the camaraderie engendered and, frankly, the esprit d ’corps that emerges from such summits. But then the surprise: The last company presenter was the Senior Marketing and Communications Officer.

His message was that a brand is a promise of who you are — and a promise that is tested every time people come into contact with any facet of your business. Building an attractive and helpful website is important. Developing plain English policy forms and brochures is a must. Getting out clever and eye-catching advertisements is a must; think of the Duck (or is it a Goose?) in Aflac.

But the promise of an insurance brand –and this was the presenter’s real point — is only fulfilled if counsel and others appointed by the insurer live up to that promise with consummate professionalism, courtesy and respect. And so, we have two jobs — to burnish the brand of WCM and to help our partners keep their promise to their insureds.

And that’s it or this This and That. If you have any questions or comments on the importance of legal partners and insurance brand identity, please call or email Dennis.

This and That by Dennis Wade

 

#NoWordsNecessary

On my walk to work, pasted on a bus stop kiosk, I spotted an image of an elegant and frosty bottle of vodka. The poster bore no ad copy, save for this Twitter handle: #NoWordsNecessary. And it struck me how apt that phrase is for much of what we do in the world of insurance defense.

With the ubiquity of cell phone cameras, having the power and precision of the clumsy Nikons of old; and with social media (think Facebook, Instagram) dominating the way we communicate; jurors, judges, and fact-finders of all stripes expect PICTURES to help drive the narrative.  Whether it is a premises case, a construction mishap, a cause and origin fire investigation, a suspected first party fraud, pictures aid understanding and communication. And, if the picture is really telling, sometimes no words are needed.

Yet great care must be taken in evaluating photographs as evidence. Perspective, lighting and, frankly, the bias of the photographer can distort what really is there to be seen. If a matter comes to us, as it often does, without a field investigation, we invariably recommend a site inspection — or we do it ourselves.

It is folly to attempt to construct a defense without a deep understanding of PLACE — and that understanding is aided by photo documentation. And let’s not forget videos. In the post 9/11 world, much of what happens is captured on film — a nearby bank security video, a Duane Reade camera sweeping its parking lot, or a system used by a vigilant shopkeeper. All are potential sources of valuable evidence.

As lawyers, we take pride in being wordsmiths. But equally, we are gratified when we find an image that makes our words unnecessary.

And that’s it for this This and That. If you would like to comment on the power of images, please call or email Dennis.

Dennis Wade Speaks at 2017 NYSBA Annual Insurance Coverage Program

 

On May 19, 2017, Dennis is a speaker at the NYSBA’s Updates and Hot Trending Topics Affecting Insurance Coverage. Dennis’s focus is bad faith and consequential damages. His submission is entitled: Recent Developments in the Law of Bad Faith in New York.

The entire program is designed for coverage mavens and touches upon the latest trends and best practices.

If you are interested in attending the program, please open attached PDF, or if you are interested in discussing bad faith and consequential damages in New York, please call or email Dennis at dwade@wcmlaw.com.