Attorney Sidebar: Three Weapons of the Insurance Defense

Rick Friedman and Patrick Malone

The defense wields three weapons to defeat plaintiff’s cases that should be won:
*  Complexity
*  Confusion
*  Ambiguity

Complexity, confusion, and ambiguity are insidious enemies. They creep up when you are not looking. They rarely attack head on. They are particularly abundant and pernicious in complex cases such as insurance bad faith or medical malpractice. This is because both the facts and the jury instructions in these cases are often complex, confusing, and ambiguous. But these enemies appear in simple cases too.

Sometimes, complexity, confusion, and ambiguity are inherent in the case; other times, they proliferate due to conscious defense strategy of confounding the jury and judge with endless, and immaterial detail. In either event, you must defeat complexity, confusion, and ambiguity, or they will defeat you.

~ Rick Friedman and Patrick Malone, Rules of the Road, page 1-2.

These three descriptors are not new.  They have been known by other names, other phrases.  “Rabbit trails”, “smoke and mirrors”, “misleading”; and some have described the defense as “whack the weasel” to divert the opponent from the real issue.

The response of some was to “stay focused”, “keep your eye on the ball”, “don’t take the bait”, etc.  And although this appears to be aimed at those defending cases, the cloud of chaos and confusion is a maneuver available in any case to shroud the weakness, downplay the problem, deflect a counterpunch, waste time and divert resources.   When you take the bait, then there may be a critical issue that can get lost in the tall weeds.

To keep your eye on the ball, I suggest the often advised (but rarely implemented) admonition to draft your instructions early on.  No matter how many times you have tried the same type of case.  Back to basics and reexamining those elements, those statutory or regulatory duties, and more are how you prepare your order of battle and plan of attack or defense.

Experienced judges see and know this, and must keep the focus and watch out for endless motions, papering the case, and attempts to divert time and precious resources of the courts, the lawyers, and the litigants from seeking justice.  Some call a trial a chess game.  A trial is not a game, and it is too serious for those who want to play at it.