After 28 years of defending lawsuits and doing my best to win,it is hard to write how to purposefully lose lawsuits. But with penin hand and tongue in cheek I decided to write a parody of PaulSimon's “50 Ways to Leave Your Lover,” which appears at the end ofthis column. Few insurance professionals would admit that theywanted to lose a trial or arbitration, yet some civil defendantsexhibit behaviors that seem to express a judicial death wish.(Perhaps “death wish” is a bit too strong–civil juries can't imposethe death penalty.) Maybe it is a strongly held belief that nothingwill go wrong, yet some of the same people carefully fasten theirseat belts, stop and look both ways at train track crossings, andleave affixed to the new couch the tag that reads it is against thelaw to remove it. All of the faux pas in the following song parodyare from real-life examples, sung in a chorus of courtrooms acrossthis great land on a daily basis. For example, the mostoft-repeated piece of advice to help avoid E&O exposures is,“Carefully document important communications in your file.” If Ihad a nickel for every time I've given that advice during aninsurance industry continuing education session, I'd have a verylarge sack of nickels. Another file-related faux pas is themisguided thought that one's own attorney does not need to seeevery document, e-mail, or other writing that has anything to dowith the client or the case, no matter how remotely. A defendantcan be certain that the plaintiff will show his or her attorneyevery iota of paper and every byte of e-storage that evidencesinteraction between the parties. Yet, when the defendant's ownlawyer asks for “the complete file,” counsel may see only the“working file,” the “project file,” or some other subset of thewhole story. I had the honor of representing an insurance brokersome years ago who had the most beautifully documented file that Ihave ever seen. He was a commercial broker in Seattle, and hadplaced liability coverage for public agencies that were involved inthe Washington Public Power Supply System, (WPSSS), a joint effortto build four nuclear power plants. The WPPSS ran into someproblems that we need not elaborate on, and the litigation thatensued absorbed nearly every law firm in the Northwest. When myclient received the subpoena to produce his file and testify as anon-party at deposition, he put his E&O carrier on notice andasked them to appoint counsel, even though no one had, as yet,accused him of anything. The WPPSS case (there was a court orderforbidding any attorney from referring to it as the “Whoops” case)generated so much heat that the law firms' laser printers probablycould have made more electricity than all four of the nuke plantscombined. the legal feeding frenzy, my client never paid anythingin settlement, and never received so much as an angry letter. Why?Because his file was like an encyclopedia. Every communication hehad about the insurance placements was noted in incredible detail,and in neatly legible Palmer-method script. Although he truthfullycould not remember any particular conversation, his file told theentire story. He became the Rosetta Stone that put the entire casetogether, and no party dared to assail him because each party hadsomething to gain and something to lose by having the completestory told by an unimpeachable business record, one that no oneelse could duplicate. I've told the story about my Seattle clientmany times because he did nothing to put himself in harm's way. Itwasn't through my firm's efforts that he and the brokerage escapedexposure, though I wish that I could say it was. He didn't needsomeone with a juris doctor degree leaning over his shoulder tosay, “Document your file.” He also didn't need a reminder aboutsome other points illustrated in the song, such as “tell thetruth,” and, to put it in the vernacular, “Don't cop a 'tude.” Someprofessionals think we're so damn smart that we can talk our wayout of anything. If you get away with it long enough, it starts tobecome a given: I will never get caught. Thank you, Mr. Madoff, forproving that even the cleverest liars get caught when the tablesturn. But it isn't only liars who get their comeuppance–it's alsothe egotists. A little genuine humility goes a long way in front ofa jury. It's the subtle difference between “I did nothing wrong”and “I can do no wrong.” Jurors and judges tend to like people whotell their stories plainly, without an air of moral or intellectualsuperiority. So, if you want to lose your lawsuit, just try to beslick, Rick. Another observation I always share with clients:Except in court, whatever you do for a living is more importantthan what I do for a living. You are part of the productive forcethat drives the American economy and creates jobs. What I do is ablack hole sucking up your time and resources into a venture thatwill not produce a single erg of new business for you. I don't mindthat you resent the time it takes to collect documents forproduction, to prepare for depositions, and to attendcourt-mandated conferences. I would resent that loss of productivetime, too, if I were in your shoes, as I have been. But I do insistthat you devote that time and those resources. Don't ignoresummonses, subpoenas, document requests, interrogatories and otherjudicial deadlines. They are like April 15, but you can't alwaysfile for an extension. In the end it won't be me chewing you outfor paying too little attention to the judicial process; it will besomeone in a black robe, or 12 good citizens, sworn and true. Andnow, here's my advice in verse, with apologies to Paul Simon andgratitude to my rhyming dictionary. If it helps get the messageacross that changing some simple habits can make visits with meunnecessary in your professional life, then it's a usefulreminder.

“The problem is all inside your head,” I said. “To be
Defended is easy if you just act legally.
I'd like to help contest your culpability,
But there must be 50 ways to lose your lawsuit.”

I said, “It's easy for a jury to conclude
That you're liable if your message will be lost ormisconstrued.
But I'll repeat myself, at the risk of being sued,
There must be 50 ways to lose your lawsuit.”

Just fib on the App, Hap.
Lie on the stand, Stan.
You just try to be coy, Roy,
Won't set yourself free.

Hide all the files, Giles,
If you want to lose tort trials!
Just mess up your plea, Lee.
Won't set yourself free.

Just stab in the back, Jack,
Don't document, Brent.
Don't return calls, Paul.
Just listen to me.

Don't stay in touch, Dutch.
You don't need to discuss much.
Don't disclose your fee, Bea.
Won't set yourself free

I said, “It pains me so to see you in a claim,
And there are some things that I can do to help you avoidblame.”
She said, “I appreciate that, but is this some sort of game
About the 50 ways?”

I said, “Why don't we both review them, just a few?”
And later on that day we covered one or two,
And then I billed her, and she realized that what I said wastrue.
There must be 50 ways to lose your lawsuit.

Step outta your niche, Mitch.
Don't follow the law, Pa.
Don't be very wary, Mary.
Won't set yourself free

Just offer one quote, Sloat.
Don't take any notes, Coates.
Don't get your C. E., Ali.
Won't set yourself free

Don't read your e-mail, Dale,
Or cover the cars, Lars.
Ignore the subpoena, Gina.
Hey, listen to me!

Don't tender the claim, Mame.
You've got yourself to blame!
Just fail to renew, Drew.
Won't set yourself free.

Create a SNAFU, Stew.
Ignore the summons, Cummins.
Staff the office too lean, Jean.
Won't set yourself free.

Just try to be slick, Rick,
You'll upset the judge quick!
Don't prep for your depo, Zeppo.
Won't set yourself free.

Just screw up the math, Kath.
Don't get it rebuilt, Milt.
Don't heed your lawyer, Sawyer.
Won't set yourself free.

Act like you don't care, Bear.
That plan goes nowhere!
But listen to me, see?
You may set yourself free!