aEURoeThe problem is all inside your head,aEUR? I said. aEURoeTo be Defended is easy if you just act legally. IaEUR(TM)d like to help contest your culpability, But there must be fifty ways to lose your lawsuit.aEUR? I said, aEURoeItaEUR(TM)s easy for a jury to conclude That youaEUR(TM)re liable if your message will be lost or misconstrued. But IaEUR(TM)ll repeat myself, at the risk of being sued, there must be fifty ways to lose your lawsuit. Fifty ways to lose your lawsuit.aEUR? Just fib on the App, Hap. Lie on the stand, Stan. You just try to be coy, Roy, WonaEUR(TM)t set yourself free. Hide all the files, Giles, If you want to lose tort trials! Just mess up your plea, Lee. WonaEUR(TM)t set yourself free.
Just stab in the back, Jack,
DonaEUR(TM)t document, Brent.
DonaEUR(TM)t return calls, Paul.
Just listen to me.
DonaEUR(TM)t stay in touch, Dutch.
You donaEUR(TM)t need to discuss much.
DonaEUR(TM)t disclose your fee, Bea.
WonaEUR(TM)t set yourself free
I said, aEURoeIt pains me so to see you in a claim,
And there are some things that I can do to help you avoid blame.aEUR?
She said, aEURoeI appreciate that, but is this some sort of game
About the fifty ways?aEUR?
I said, aEURoeWhy donaEUR(TM)t we both review them, just a few?aEUR?
And later on that day we covered one or two,
And then I billed her, and she realized that what I said was true.
There must be fifty ways to lose your lawsuit.
Fifty ways to lose your lawsuit.
Step outta your niche, Mitch.
DonaEUR(TM)t follow the law, Pa.
DonaEUR(TM)t be very wary, Mary.
WonaEUR(TM)t set yourself free
Just offer one quote, Sloat.
DonaEUR(TM)t take any notes, Coates.
DonaEUR(TM)t get your C. E., Ali.
WonaEUR(TM)t set yourself free
DonaEUR(TM)t read your e-mail, Dale,
Or cover the cars, Lars.
Ignore the subpoena, Gina.
Hey, listen to me!
DonaEUR(TM)t tender the claim, Mame.
YouaEUR(TM)ve got yourself to blame!
Just fail to renew, Drew.
WonaEUR(TM)t set yourself free.
Create a SNAFU, Stew.
Ignore the summons, Cummins.
Staff the office too lean, Jean.
WonaEUR(TM)t set yourself free.
Just try to be slick, Rick,
YouaEUR(TM)ll upset the Judge quick!
DonaEUR(TM)t prep for your depo, Zeppo.
WonaEUR(TM)t set yourself free.
Just screw up the math, Kath.
DonaEUR(TM)t get it rebuilt, Milt.
DonaEUR(TM)t heed your lawyer, Sawyer.
WonaEUR(TM)t set yourself free.
Act like you donaEUR(TM)t care, Bear.
That plan goes nowhere!
But listen to me, see?
You may set yourself free!
(With apologies to Paul Simon and gratitude to my rhyming dictionary.)
All of the lyricized faux pas in the song are from real-life examples, and they are sung in a chorus of courtrooms across this great land on a daily basis. For example, the most oft-repeated piece of advice to professional to help them avoid E&O exposures is, aEURoeCarefully document important communications in your file.aEUR? If I had a nickel for every time IaEUR(TM)ve given that advice during an insurance industry continuing education session IaEUR(TM)d have . . . well, IaEUR(TM)d have a very large sack of nickels.
No matter how frequently the same advice is given, some professionals (and in all professions, I might add) are absolutely immunized against it. They could walk out of the seminar room, return to their desks, receive lengthy calls from a client asking a series of detailed questions, and giving perfectly correct responses to all questions, and at the end of the day have nothing on paper or in their electronic files to prove that anything was said, save for a scrap from a notepad showing some carefully sketched geometric shapes surrounding a freehand drawing of a Ferrari.
(HereaEUR(TM)s a helpful hint: if you are going to decorate your professional file with a drawing of a car, donaEUR(TM)t make it a Ferrari. IaEUR(TM)m sure that Ferraris must be very fine automobiles, but, candidly, daydreaming about them at work sends the wrong message to most jurors, some of whom took a public bus to get to the courthouse. If you have an irresistible urge to draw a car, donaEUR(TM)t make it a Ferrari. Try a VW Beetle, or, better yet, a 1968 Ford panel truck that is missing one hub cap.)
Another file-related faux pas is the misguided thought that oneaEUR(TM)s own attorney does not need to see every document, e-mail, or other writing that has anything that has to do with the client or the case, no matter how remotely. A defendant can be certain that the plaintiff will show his/her attorney every iota of paper and every byte of e-storage that evidences interaction between the parties. Yet, when the defendantaEUR(TM)s own lawyer asks for aEURoethe complete file,aEUR? counsel may see only the aEURoeworking file,aEUR? the aEURoeproject file,aEUR? or some other subset of the whole story.
I had the honor of representing an insurance broker some years ago had 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, a joint effort to build four nuclear power plants. The WPPSS ran into some problems that we need not elaborate on, and litigation ensued that absorbed nearly every law firm in the Northwest. When my client received the subpoena to produce his file (which was gigantic) and to 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 aEURoeWhoopsaEUR? case) generated so much heat that the law firmsaEUR(TM) laser printers probably could have made more electricity than all four of the nuke plants combined. Despite 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 that he had about the insurance placements was noted in incredible detail, and in neatly legible Palmer-method script. Although he could truthfully not remember any particular conversation, his file told the entire story. He became, in effect, 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.
IaEUR(TM)ve told the story about my Seattle client many times because he did nothing to put himself in harmaEUR(TM)s way. It wasnaEUR(TM)t through my firmaEUR(TM)s efforts that he and the brokerage escaped exposure, though I wish that I could say it was. He didnaEUR(TM)t need someone with a Juris Doctor degree leaning over his shoulder to say, aEURoeDocument your file.aEUR?
He also didnaEUR(TM)t need a reminder about some other points that are illustrated in the aEURoe50 Ways,aEUR? such as aEURoeTell The Truth,aEUR? and, to put it in the vernacular, aEURoeDonaEUR(TM)t cop a aEUR~tude.aEUR? Some professionals, including lawyers, think that weaEUR(TM)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 isnaEUR(TM)t only liars who get their come-uppance, itaEUR(TM)s also the egotists. A little genuine humility goes a long way in front of a jury. ItaEUR(TM)s the subtle difference between aEURoeI did nothing wrongaEUR? and aEURoeI can do no wrong.aEUR? 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, and one that 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 for others. What I do is a drain on that energy, 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 donaEUR(TM)t mind that you resent the time that 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. DonaEUR(TM)t ignore summonses, subpoenas, document requests, interrogatories, and other judicial deadlines. They are like April 15, but you canaEUR(TM)t always file for an extension. In the end it wonaEUR(TM)t be me chewing you out for paying too little attention to the judicial process, it will be someone in a black robe, or twelve good citizens, sworn and true.
If aEURoe50 WaysaEUR? helps get the message across that changing some simple habits can make visits with me unnecessary in your professional life, then itaEUR(TM)s a useful reminder. Think of avoiding the conduct parodied in the song as flossing, and me as root canal.
I wonaEUR(TM)t take it personally. And when you do need me, or someone like me, weaEUR(TM)ll be there.
Louis Castoria is a member of Wilson Elser's nationwide Insurance Coverage, D&O Insurance, and Insurance Agents and Brokers Defense teams, and is the Assistant Managing Partner of the San Francisco Office, where he heads all professional liability defense and insurance coverage work. He also co-chairs the firms Securities Broker/Dealer and Financial Planners Practice Team.
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(C) Entire contents copyright 2009 by American Agent & Broker (linked to www.agentandbroker.com), a publication of The National Underwriter Company. All rights reserved
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