This and That by Dennis Wade

What do Amazon and Insurance have in common? The answer, I suggest, is this: Everything and Nothing.

But first I digress.  For many years, the desk staff at my Manhattan apartment building really had but one job: To be pleasant and sometimes helpful to tenants coming and going.  Now the desk staff has become servants of Amazon as each day UPS drivers dump hundreds of packages at the front desk:  Shoes, toys, diapers, clothing, furniture…everything “brick and mortar” retail once sold. And now that Amazon has moved into fresh produce and groceries with the purchase of Whole Foods, the anxiety of the desk staff has increased measurably.

With that digression in mind, recently, I attended an international insurance conference in Rome, Italy. There, one panel of insurance brokers and underwriters discussed how the marked preference of millennials for internet shopping has changed and is changing the way insurance is sold.

With the advent of online insurance applications, the brokers are worried about becoming irrelevant; and, the underwriters are worried that fraud, already a $40 billion dollar industry problem, will rise to even greater levels. But some panelists argued that Watson-like cyber brains and sophisticated algorithms would eventually solve short-term blips in online insurance applications and claim service.

Needless to say, save for the inevitability of change in the way insurance is sold and claims resolved, no clear answers emerged. The only consensus seemed to be this: Routine  risks such as auto and basic homeowners would increasingly be written and resolved over the internet; while sophisticated commercial and high net worth risks require and will always require human judgment to assess whether the risk ought to be accepted and if so at what premium. And, of course, boots on the ground and perhaps lawyers would be required for complicated matters.

The theme that ultimately emerged from the discussion is that human expertise in risk assessment and claim service still matter and add value no cyber network, however sophisticated, can match. But even with that positive realization, the clear message to insurance professionals and lawyers alike was to embrace technology to achieve greater efficiency and profitability. In sum, the promise of the mantra– “There’s an App for that”–may soon become more than Silicon Valley hype in the insurance world. And we have to be ready to meet it.

And that’s it for this This and That. If you have any thoughts (or gripes) about how the internet has changed the way insurance is produced, claims are managed, or lawyers employed in our digital world, please call or email Dennis.

This and That by Dennis Wade

In coverage and defense fights, the contest sometimes becomes personal and the warring advocates, insurers and lawyers alike, trade verbal barbs, often later regretted. Trading snarky remarks rarely advances the cause of either side and often brings down the wrath of the judiciary.  This unfortunate practice has spawned countless articles and continuing education courses, typically styled “Civility in the Practice of Law.”

Perhaps the best example of civility under stress comes from Ulysses S. Grant who, at the courthouse in Appomattox, treated Robert E. Lee with respect. In fact, before discussing the terms of surrender, Grant and Lee chatted about old times at West Point.  Not only was Grant a model of civility, his Personal Memoirs, published posthumously, is one of America’s great non-fiction literary works.  Grant’s prose, honed by the countless orders he wrote to men in the field, is simple, direct and moving.  And it is a book I recommend to all aspiring writers.  Grant’s account of meeting Lee at Appomattox touches me each time I read it:

“I was without a sword, as I usually was when on horseback in the field, and wore a soldier’s blouse for a coat, with the shoulder straps of my rank to indicate to the army who I was. When I went into the house I found General Lee. I had my staff with me, a good portion of whom were in the room during the whole of the interview…

“What General Lee’s feelings were I do not know. As he was a man of much dignity, with an impassible face, it was impossible to say whether he felt inwardly glad that the end had finally come, or felt sad over the result, and was too manly to show it… General Lee was dressed in full uniform which was entirely new, and was wearing a sword of considerable value. In my rough travelling suit, the uniform of a private, I must have contrasted very strangely with a man so handsomely dressed, six feet high and of faultless form. But this was not a matter that I thought of until afterwards.”

And that’s it for this This and That. If you have any thoughts on civility in coverage and defense litigation, please call or email Dennis.

This and That by Dennis Wade

In the darkest days of World War II, England’s very survival depended on getting vital supplies and armaments across the Atlantic to home ports. The Navy knew they could not do it alone.  They needed to enlist the cooperation of the citizenry.  So, the War Ministry papered London and other port cities with posters sounding a simple but profound warning: Loose Lips Sink Ships.

In litigation, like war, loose lips can indeed sink the best efforts of counsel. Perhaps the best example of “loose lips” is the breaking story of two high-powered Washington lawyers, who were chatting in a toney Washington steakhouse about their efforts to coordinate the White House response to Special Counsel Robert Mueller’s document demands in the “Russian Investigation.” The problem was that the lunchtime discussion took place in earshot of New York Times reporter Kenneth Vogel.

The next day, September 17, 2017, Vogel and his colleague Peter Baker published an account of what was overheard while the lawyers dined al fresco at the BLT Steakhouse which is situated near the White House (and as it happens the Washington Bureau of the Times).

I invite you to Google the story for the salacious details. But for my purpose here, the story confirmed the rumors swirling in the Blogsphere that there was internecine warfare within the White House as to the proper scope of disclosure, and an intimation that certain documents were being withheld from Mueller.

While most defense and coverage cases do not involve matters of national import, great care must be taken to keep close counsel. The temptation to reveal key strategy to co-counsel, to the Court, to Mediators, or frankly, to just discuss the contest with others is often hard to resist. But vigilance and the Cannon of Ethics require that all client confidences and strategy must be closely guarded and revealed only when the time has come to use what has been lawfully withheld to advantage.

For example, if an expert, medical or otherwise, uncovers a telling fact or a winning theory, you might be tempted to discuss it. But an untimely disclosure or inadvertent “loose lips” slip may result in the other side massaging the facts to counter the potential defense. As Edgar said in Shakespeare’s King Lear, “Ripeness is all.”  All of us, then, must guard against inadvertent disclosure and decide, after consultation, when the telling fact or theory is “ripe” for disclosure.

At WCM, our lips are sealed and we have multiple layers of security to keep our network safe from prying eyes and cyber thieves.

And that’s it for this This and That. If you have any tales to tell about “loose lips” sinking your case, please call or email Dennis.

This and That by Dennis Wade

On November 19, 1863, at the battlefield in Gettysburg, Edward Everett, former President of Harvard, a distinguished public servant, and certainly one of the most renowned orators of the day, spoke for two hours before Lincoln took the dais. Lincoln spoke for two minutes, uttering but 272 words.  Nothing is remembered of Everett’s dedication, but Lincoln’s few words beginning with “Four score and seven years ago…” became immortal.  The next day, Everett wrote to Lincoln, “I should be glad, if I could flatter myself that I came as near to the central idea of the occasion in two hours, as you did in two minutes.”

Recalling Lincoln’s two minute address is my segue to stressing the importance of the “Elevator Version” of your case in litigation. Most elevator trips in Manhattan office buildings take about two minutes.  And in those two minutes, you should be able to explain why you should win your case or achieve the outcome your client wants.

Most busy judges and harried mediators want an Elevator Version of your case. So, the best preparation for an argument or indeed any client discussion is to distill your case to two minutes – – a story and a conclusion that can be told during an elevator ride.

With the essence of your case distilled to an elevator ride, all that follows, the details, the nitty gritty, the legal precedent, will unfold nicely because you have done the hard work of making something that seems complex, quite simple.

As an aside, I do not advocate discussing cases or anything else on public elevators. But you get the idea.

And that’s it for this This and That. And if you have any thoughts on brevity in argument, please call or email Dennis.

This and That by Dennis Wade

Dazzled by the tennis, but equally dazzled by the color and design of the players’ clothing at the ongoing U.S. Open at Flushing Meadow, Queens, I wondered why the All England Club at Wimbledon strictly enforces the rule of “white” tennis apparel. Apparently, it dates back to the 1800s when the sight of sweat through clothing was deemed unseemly to the Victorian sensibility, thus bringing life to the rule of white and a tradition that has held fast over the years.

This may seem like a strange beginning to discussing a recent and notable United States Supreme Court copyright decision. At issue in Star Athletica, LLC v. Varsity Brands, Inc. was whether designs on cheerleading uniforms were subject to copyright protection when the uniforms themselves were purely functional.  Varsity obtained over 200 copyright registrations for two dimensional designs on cheerleading uniforms – – stripes, chevrons, zigzag patterns, and the like.  Star Athletica made uniforms with very similar designs, prompting Varsity to sue Star for copyright infringement.

Much confusion existed in the Circuits as to the scope of IP protection for design elements in fashion apparel. And so, the case made its way to the top court.  Writing for the majority, Judge Clarence Thomas announced:

[A] feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.

The majority found that, while the design elements were integral to a purely functional item of apparel, the designs enjoyed “pictorial graphic or sculptural qualities” which, in effect, if imagined in a medium other than clothing could qualify as works of art capable of copyright protection.

Insurers writing broad form advertising injury coverage have been plagued with claims across many industries. But now it seems that the fashion industry is a fair target for infringement and advertising injury claims. And that’s it for this This and That. But if you care to predict the Open champs or share your views on appropriate tennis apparel, please call or email Dennis.

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.

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.