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.

Attorney Sidebar: Advocacy

John T. (Jack) Ballantine

If you think that your being aggressive in an attack dog mode is going to help your client, you’re dead wrong. Another change is a tendency to over-lawyer a case. I can remember [Squire] Ogden saying our clients don’t want the luxury of having too many lawyers involved.

~ John T. (Jack) Ballantine
Kentucky Lawyers Speak, page 39.


Attorney Sidebar: Professionalism

John T. (Jack) Ballantine

I don’t think there’s any question that professionalism is down from what it was in my younger days. Some of this hostility exists because of the pressure of more lawyers trying to get more business. I never address the court without either standing or getting the court’s approval to remain seated for my answer. Now that’s the exception, not the rule. It is not because I like that judge or I don’t like that judge, it’s because I think the judge’s position deserves that respect. Jurors don’t like that kind of behavior, and it shows in the verdict that they come back with.

* * *

The most destructive, horrible change is the free tendency for people to lash out at courts without knowing what or why the court did what he or she did. We’re a government of laws not of men. We’ve got a Constitution. Judges have to follow the law and if it’s unpopular they get castigated by people who don’t have any basis of understanding the nature of the ruling.

~John T. (Jack) Ballantine
Kentucky Lawyers Speak, page 40.

Attorney Sidebar: Case Value and Experience

Norma Foster Adams

Being the defense lawyer, I’m still very sympathetic with plaintiff’s lawyers, not try very hard to see the value of the case and try very hard to be sure that the insurance company recognizes that value. The more experienced the plaintiff’s lawyer, the more you settle, because an experienced plaintiff’s lawyer also knows the value of the case. Inexperienced, young plaintiff’s lawyers are likely to greatly overvalue their case, and sometimes plaintiff’s lawyers cannot control their client. They would settle, but the client wants a greater sum.

~ Norma Foster Adams
Kentucky Lawyers Speak, page 20.

The likely jury verdict affects the value of a case which affects the settlement value of a case.  Thus, the lawyer’s reputation for trying a case, their experience, and reputation are just one of the factors that affect an opponent’s number.  T’is true as much as we do not wish or like to admit it.

Attorney Sidebar: “Sidebar”

"discovering truth by building on previous discoveries"

‘Sidebar’ — a conference between the judge, the lawyers, and sometimes the parties to a case that the jury does not hear.

Merriam-Webster Dictionary

I hope to share the wit, wisdom, sayings, advice of and from other lawyers, judges, fellow travelers and even a few really, really deep thinkers which may have some applicability to the legal profession.  For it has been said, so many times, and in so many variations that —

We [the Moderns] are like dwarves perched on the shoulders of giants [the Ancients], and thus we are able to see more and farther than the latter. And this is not at all because of the acuteness of our sight or the stature of our body, but because we are carried aloft and elevated by the magnitude of the giants.
~Attributed to Bernard of Chartresby John of Salisbury

If I have seen further it is by standing on ye sholders of Giants.  Or  nanos gigantum humeris insidentes.
~ Sir Isaac Newton

As for me, thus my phrasing of this timely maxim on the growth of knowledge and human kind is  that

One man’s  heritage is another man’s  legacy.
~Mike Stevens

BTW.  I know not where I heard this, be it from my father or through my own ponderings, but I am sure if I have unknowingly borrowed it from another, I will be corrected.  And if such, I apologize in advance.

Attorney Sidebar: Jury Selection

Norma Foster Adams

I’d rather have a younger jury, and that’s something that most people who defend don’t want. But I feel that they are willing to sit and think through the complicated issues more than older people who have become set in their ways and set in their ideas. On the other hand, if they’re going to give a verdict, probably the older people will hold back the size of it, because they don’t think in the same terms of dollar amounts. So it’s a mixed bag.

~Norma Foster Adams
Kentucky Lawyers Speak, p. 21.

Attorney Sidebar: Mentoring

Philip P. Ardery

“I think the best thing for a young lawyer to do today would be be associate himself with some person he highly respects as a member of the Bar and learn from that person. I think that’s the best way to get adjusted to the challenge of law practice after you get through law school. To be a lawyer is to have a real privilege and with that privilege goes responsibility.”

~Philip P. Ardery

Taken from “Kentucky Lawyers Speak”, page 29.

Attorney Side Bar: Being Prepared

Norma Foster Adams

We had a lawyer named H.K. Spear who was sort of a character, and one day the judge said ‘General’ (they called him General because he’d been with the Kentucky Attorney General’s Office). ‘Will you give me some law on that?’ [And] He said, ‘Judge, if I had it, believe me, you would have already had it!’

~ Norma Foster Adams
Kentucky Lawyers Speak”, page 19. 

When the judge ask you if you have any law on a position, will you have an answer in the ready.

Are you prepared to provide precedent on point or which can reasonably be extended to support your position.  If the precedent looks bad for you, can you distinguish it on facts or law or both?  And if the law is silent on your exact point, is there law from another jurisdiction that is probative that would help?  And never, ever forget the equitable reasons that your cause is just. Something more than, “no can do.”

Be prepared, be ready, be responsive.

Walter Gretzky had some pretty good advice for his superstar hockey player of a son — Wayne, “Skate to where the puck is going, not where it has been.”

You got to see the where the puck is going to be ready to plan your next move.

From “Kentucky Lawyers Speak”, Norma Foster Adams, page 19.