On October 31, 2017, Halloween, at about 3:15 p.m., I left our Maiden Lane office to walk to the World Financial Center where I was scheduled to meet with a client. About ten minutes into my walk, my paralegal Suzi called me, “Dennis, be careful, I saw on the news scroll something about a “mass shooting near Chambers Street.”  “Thanks, I’m fine,” and I kept walking west.  When I reached West Street (the Westside Highway to New Yorkers), I saw a white delivery van splayed across the Southbound lane with its front end crushed to the windshield.  Helicopters, sirens, EMTs, all traffic in every direction, stopped.

I crossed the highway and continued to my appointment perhaps 400 yards from where, I later learned, a terrorist had ended his murderous rampage down the Westside Esplanade, a delightful path along the Hudson for all to enjoy. But those 400 yards seemed a world away from the carnage I would later see on the evening news.

I think New Yorkers have found the best way to fight terror. It is RESILIENCE; a will to keep going in the face of adversity.  Although by 5:00 p.m. most of New York knew what had happened, life went on, undaunted.  In my neighborhood, literally blocks from where the attack took place, parents took their costumed children trick-or-treating; the fabled Halloween parade took place as scheduled; and all seemed strangely normal.

In the ancient world, the proudest boast was “civis Romanus sum” (I am a Citizen of Rome). In essence, the phrase was a declaration that the individual was entitled to the full protection of the Empire if their liberty was challenged. After the events of this Halloween, I proudly boast “I am a Citizen of New York.”

And that’s it for this This and That.

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.

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.

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.

 

“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.

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.