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After 28 years of defending lawsuits and doing my best to win, it is hard to write how to purposefully lose lawsuits. But with pen in hand and tongue in cheek I decided to write a parody of Paul Simon’s “50 Ways to Leave Your Lover,” which appears at the end of this column. Few insurance professionals would admit that they wanted to lose a trial or arbitration, yet some civil defendants exhibit behaviors that seem to express a judicial death wish. (Perhaps “death wish” is a bit too strong–civil juries can’t impose the death penalty.) Maybe it is a strongly held belief that nothing will go wrong, yet some of the same people carefully fasten their seat belts, stop and look both ways at train track crossings, and leave affixed to the new couch the tag that reads it is against the law to remove it. All of the faux pas in the following song parody are from real-life examples, sung in a chorus of courtrooms across this great land on a daily basis. For example, the most oft-repeated piece of advice to help avoid E&O exposures is, “Carefully document important communications in your file.” If I had a nickel for every time I’ve given that advice during an insurance industry continuing education session, I’d have a very large sack of nickels. Another file-related faux pas is the misguided thought that one’s own attorney does not need to see every document, e-mail, or other writing that has anything to do with the client or the case, no matter how remotely. A defendant can be certain that the plaintiff will show his or her attorney every iota of paper and every byte of e-storage that evidences interaction between the parties. Yet, when the defendant’s own lawyer asks for “the complete file,” counsel may see only the “working file,” the “project file,” or some other subset of the whole story. I had the honor of representing an insurance broker some years ago who had the most beautifully documented file that I have ever seen. He was a commercial broker in Seattle, and had placed liability coverage for public agencies that were involved in the Washington Public Power Supply System, (WPSSS), a joint effort to build four nuclear power plants. The WPPSS ran into some problems that we need not elaborate on, and the litigation that ensued absorbed nearly every law firm in the Northwest. When my client received the subpoena to produce his file and testify as a non-party at deposition, he put his E&O carrier on notice and asked them to appoint counsel, even though no one had, as yet, accused him of anything. The WPPSS case (there was a court order forbidding any attorney from referring to it as the “Whoops” case) generated so much heat that the law firms’ laser printers probably could have made more electricity than all four of the nuke plants combined. the legal feeding frenzy, my client never paid anything in settlement, and never received so much as an angry letter. Why? Because his file was like an encyclopedia. Every communication he had about the insurance placements was noted in incredible detail, and in neatly legible Palmer-method script. Although he truthfully could not remember any particular conversation, his file told the entire story. He became the Rosetta Stone that put the entire case together, and no party dared to assail him because each party had something to gain and something to lose by having the complete story told by an unimpeachable business record, one that no one else could duplicate. I’ve told the story about my Seattle client many times because he did nothing to put himself in harm’s way. It wasn’t through my firm’s efforts that he and the brokerage escaped exposure, though I wish that I could say it was. He didn’t need someone with a juris doctor degree leaning over his shoulder to say, “Document your file.” He also didn’t need a reminder about some other points illustrated in the song, such as “tell the truth,” and, to put it in the vernacular, “Don’t cop a ‘tude.” Some professionals think we’re so damn smart that we can talk our way out of anything. If you get away with it long enough, it starts to become a given: I will never get caught. Thank you, Mr. Madoff, for proving that even the cleverest liars get caught when the tables turn. But it isn’t only liars who get their comeuppance–it’s also the egotists. A little genuine humility goes a long way in front of a jury. It’s the subtle difference between “I did nothing wrong” and “I can do no wrong.” Jurors and judges tend to like people who tell their stories plainly, without an air of moral or intellectual superiority. So, if you want to lose your lawsuit, just try to be slick, Rick. Another observation I always share with clients: Except in court, whatever you do for a living is more important than what I do for a living. You are part of the productive force that drives the American economy and creates jobs. What I do is a black hole sucking up your time and resources into a venture that will not produce a single erg of new business for you. I don’t mind that you resent the time it takes to collect documents for production, to prepare for depositions, and to attend court-mandated conferences. I would resent that loss of productive time, too, if I were in your shoes, as I have been. But I do insist that you devote that time and those resources. Don’t ignore summonses, subpoenas, document requests, interrogatories and other judicial deadlines. They are like April 15, but you can’t always file for an extension. In the end it won’t be me chewing you out for paying too little attention to the judicial process; it will be someone in a black robe, or 12 good citizens, sworn and true. And now, here’s my advice in verse, with apologies to Paul Simon and gratitude to my rhyming dictionary. If it helps get the message across that changing some simple habits can make visits with me unnecessary in your professional life, then it’s a useful reminder.
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