The Logic of Expert Opinions and Testimony

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Michael Sean Quinn, Ph.D, J.D., Etc.

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com

EXPERT WITNESS TESTIMONY: 

THE “IFs” AND THE “THENs”–

A CONTESTABLE HYPOTHESIS*

Almost all acceptable expert opinions work the same way. Almost all of them are “If-Then” sets of propositions that embody alleged factual propositions at their foundation.  “If the facts are X, then my opinion is Y.” 

It is important at this point to distinguish between expert testimony about theoretical matters, such as truths of mathematics, physics, engineering, laboratory methods, surgical methods, some parts of medical practice, and so forth.  The are not the sort of testimony I am talking about.  I am talking about principles applied concretely in given cases.

Outside experts do not in general know of their own personal knowledge of what the facts really are in a case in which they are testifying.  They are not expected to know those facts. They are simply providing general knowledge, or what is thought to be knowledge, as applied to the facts in a given case. 
Inside experts sometimes have actual personal empirical knowledge of a set of relevant facts, but almost never all of them. Thus, to some extent, inside experts function just like outside experts. 

Often–indeed, almost always–experts are relying on the reports of others the testimony of others, various documents, stipulations, and requests that they assure that certain factual-looking propositions are true.   Even if they have themselves performed experiments (or something of the sort), they are still tied to the validity of those experiments and its applicability to alleged facts.   And it  is unlikely that the experiments they perform will have the same kind of scientific validity that experiments performed repeatedly by many Ph.D.-types at distinguished universities or institutes. 

Any opinion type testimony that says, “The following concrete and applied opinion is true no matter what empirical propositions are true and no matter what the logic of the relationship among the propositions stating facts” is false on its face.  Often when an opinion falls in that category, the absolutism of the opinion is hidden and not overtly asserted. Often those factual propositions themselves actually depend on what a person asserts about the fact and that introduces a second “If-Then” level.  Often the “If-Then” inferences are obvious and uncontested, so that that opinion and its formulation are all that matter. 

Experts have to make the “If-Then” point virtually every time they can, even if not asked about it, e.g., in depositions.  If they don’t opposing counsel, but usually not opposing experts (for obvious reasons), will suggest that the testifying expert is not really a fact witness and is deriving his knowledge for outside himself–is depending on versions of facts stated by others.  The expert should underline this  attack by teaching the hearers–whether judges, juries, lawyers, parties, and so forth–that all expert opinions are dependent of facts which are to some expense assumed, or derived, or arrived at by a process of knowledgeable reasoning, etc.

This idea applies especially to the opinions and testimony about the performances of service providers–what is to be found in the “Then” basket.  One of the main focuses in such testimony is the performance of the participating individuals, as well as companies, and,to a considerable extent, it is judged by established customary and reasonable patterns of adjusting along with the insurance contracts, applicable law, and facts to be found in the “If”-bucket used by the expert. An expert witness must know and study all of these topics, and the established practices may be the most important area for judging relevant facts.  

Of course, usually experts are not permitted to testify about what the law is or should be, but if the service providers apply law in their activities, an appropriate expert is permitted to testify as to what the standard view of the service providers is. Opinions about lawyer malpractice is the easiest one to see here, insurance adjusters and brokers are another example, and the securities industry is full of such providers. (Insurance agents and brokers make an especially interest category or two. Many brokers, for example, have no idea about for whom the are the legal agents and who they are required to represent.)  

Obviously, it is important for the expert to fill the “fact bucket with “the right facts,” objectively selected and what might be called the “true facts” to the extent possible. Facts to the contrary cannot be ignored or rejected out of hand.  The ideal situation for an adjuster is where the opposing facts each supports his opinions.  This happens more often than one might think.
Another blog will discuss how to classify different sets of facts.  The categories should be kept straight in the mind of the expert, except where the categories overlap, and then she must be clear about the boundaries of the overlap.
______________________________________________________________

*Perhaps it might be remembered that all hypotheses are contestable.  That is what a hypothesis is, and one of the most important ways to think about whether a hypothesis is correct or false is to argue with it and try to falsify it.  This could be called the proper Popper Principle. 
          

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The Concept of “Settlement,” “Settlement Process,” & “Settling” in the Insurance Process.

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Insurance: The Related Concepts of Claims, Claims Adjustment, Claims Adjusting, Claims Settlement, Claims Settlement Process  & Settling Claims

Michael
Sean Quinn, Ph.D, J.D., Etc.

2630
Exposition Blvd  #115

Austin,
Texas 78703

(o)
512-296-2594

(c)
512-656-0503

mquinn@msqlaw.com

As a conceptual matter all adjustment must be viewed as part of a settlement practice. The term “settlement” in the context of litigation pertains to the resolution of a dispute by negotiation and/or agreement, without proceeding to final judgment, unless by agreement. The word can also mean something like this in the context in the context of transaction conflicts.

The meaning of the term “settlement” in the context of insurance adjustment covers virtually the whole process. This is because the entire process is working toward a resolution of a contract and money matter. There is nothing that is part of the process that is not part of the settlement process. The mere fact that a claim is not likely to settle does not make the process any less a process of trying to settle and therefore a settlement process.

These two separate meanings should be distinguished at all times and never confused, except when they are both being satisfied at once, a rarity since there is a good deal more “power v. weakness” characteristics in the litigation settlement process than is permitted in adjustment. Litigation is not as just as a correct adjustment process. 

The theses here in are nicely structured by at least one section in a clause in one of the most highly used models for formulating statutory insurance bad faith.  Portions the model act are to be found in the Texas Insurance Code. Section 541.060, entitled “Unfair Settlement Practices” a bricolage of requirements.  To be sure, what is often taken to be the essence of settlements is to be found there in section (a)(2) but so is a prohibition misrepresentations (a)(1), failure to provide an insured a reasonable investigation (a)(7), and more.  These idea make adjustment settlement broader than simply settlement as understood in litigation. 

Settlement is not part of the essence of litigation; it is simply something that happens more often that not.  Settlement regarding insurance claims is part of the essence of the insurer-insured relationship.

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Adjusting and Settling

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The Nature of Insurance Adjusting

Michael
Sean Quinn, Ph.D, J.D., Etc.

2630
Exposition Blvd  #115

Austin,
Texas 78703

(o)
512-296-2594

(c)
512-656-0503

mquinn@msqlaw.com

A “Child’s” Guide to the Process & Its Elements*

This formulation is in terms of “steps.”  They are often like this chronologically, but not always. Not every step is involved in every claim.  The steps often overlap or arise one time, and then again sometimes they are mechanical–first one and then the other.  The “end steps” are the most important for this discussion.

Fundamentally, insurance adjusters are or are like detectives.  Most of their work is empirical investigation of one sort or another. On the other hand, some of it involves legal investigations. Are they divorced? Who has title? Is that its truck” Who is the parent of that child? (Which may be both empirical and legal.) And so forth.

Usually, if there are issues as to coverage, adjusters become investigators as to applicable meaning of language, usually regarding the applicable contract(s) of insurance, but may be many other documents as well. 

Now for some steps. Remember: these are steps involving reasoning and logic and often of chronology, as well. 

Insurance adjusting is, first, the process of determining whether someone (or something) is an insured.  

A next step is to try and determine whether the insured has sustained a loss of some sort.  

A third step is to try and see if the loss is of a sort that is covered by the policy.  This may involve an investigation of the language of the policy. That may involve reading and/or studying various kinds of guide books insurers usually keep around; it may involve consultation, usually with other adjusters, sometimes with underwriters, and occasionally with professional coverage attorneys, whether from the company’s legal department or from outside counsel. (The truth is that adjusters function a bit like coverage lawyers sometimes, and particularly in large cases, they may be themselves lawyers.)  This step may arise over and over again.

A fourth step is to try and determine what the loss is worth, i.e., what is the insurer obligated to pay.  This often involves a close empirical analysis of the loss itself and an economic/financial investigation and analysis of what might be called the price of the loss.

A fifth step is to ask again questions about coverage, especially not only given the nature of the loss but also the monetary value of the loss.  The whole loss or only a percentage may be covered. In addition, if a loss involves component parts, some of them may be covered and others not.  For example, a Ralph Lauren store may have coverage for water damage caused by a storm, but not have coverage for business interruption the storm caused.

A sixth step is to discuss the size and nature of the loss with the (or an) insured, usually the policyholder but maybe others as well, named insureds or loss payees. This discussion may lead to a discussion of what the adjuster takes the worth of the loss to be, and then the extent of monetary coverage, e.g., policy limits, less than policy limits, and so forth. 

A seventh step is negotiate the price of the resolution.  It should involve price only.  Price should not depend on the nature of the insured, e.g., weaknesses, upon the nature of the insurer, e.g., strengths, or the fact that the insurer can threaten the insured with, for example, penury from denial.

It does not matter whether the insured, say, Ralph Lauren [and his company], is an arrogant, egotistical, self-worshiping, worship-demanding, passionately self- aggrandizing, deeply devoted narcissistic sack-of-shit, or whether some other insured is a gangster.  What matters is whether the insured has sustained a loss.  (At the same time, the moral character of an insured might raise issues as to truthfulness, and that is a fair inquiry. At the same time, the insured’s history is not a dis-positive factor.)

Either before or after the seventh step (so let’s call it, the eighth step), the insurer is to announce its decision as to whether there is coverage or denial or a mixture of both.  Often the adjuster determines this and announces it, often by letter. Notice what is being said here.  

The process of determining coverage and setting coverage decisions forth is part of the adjustment process and not distinct. It is not another, different activity generated by adjusting; it is part of adjusting.

There may again be negotiations. 

Several more important points. 

Each of the steps is regulated by normative principles.  Some may be peculiar to only some of the steps; others may apply to all of them.  Some of them result from the law; some are from internal policies of different insurer; and some result from an assortment of other factors: reason, logic, common moral values, or accepted professional norms, accepted social norms, and so forth.

The process of adjustment may continue into a litigation process.  In other words, adjusters may continue adjusting claims after Complaints have been filed.  In addition, parts of the litigation process may be parts of the adjustment process.

As a conceptual matter all adjustment must be viewed as part of a settlement practice.  The term “settlement” in the context of litigation pertains to the resolution of a dispute by negotiation and/or agreement, without proceeding to final judgment, unless as part of the settlement agreement. The word can also mean something like this in the context in the context of transaction negotiations.

The meaning of the term “settlement” in the context of insurance adjustment covers virtually the whole process. This is because the entire process is working toward a resolution of a contract and money matter. There is nothing that is part of the process that is not part of the settlement process. The mere fact that a claim is not likely to settle does not make the process any less a process of trying to settle and therefore a settlement process.

These two separate meanings should be distinguished at all times and never confused, except when they are both being satisfied at once, a rarity since there is a good deal more “power v. weakness” characteristics in the litigation settlement process than is permitted in adjustment. Litigation is not as just as a correct adjustment process. 

*Raise your glass high to begging forgiveness from both Britten and Bernstein. 

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Insurance Matters: Interpretation of policy language.

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Policy Interpretation Sibling 

& 

Matters of Law

A Short and Merely Suggestive Sketch 

Michael
Sean Quinn, Ph.D, J.D., Etc.

2630
Exposition Blvd  #115

Austin,
Texas 78703

(o)
512-296-2594

(c)
512-656-0503

mquinn@msqlaw.com

Is discourse in the law about the language of an insurance policy and its meaning always a matter of law?  This is the usual view.  Witnesses are often not permitted to testify about anything near the meaning of words and phrases to be found in contracts of insurance, i.e., insurance policies. These matters are said to be matters of law and therefore for judges and not empirical matters. 

Here are two exceptions, one central going to the very core of the doctrine, and another “off to the side.” 

1. Insureds are required to read and understand the policies of insurance they purchase or that are purchased for them. This is actually an absurd doctrine that is damaging to the social order, but that is relevant here.  It is at least required of insureds that they understand their policies.

Given this doctrine, in particular. insureds ought to be able to testify about what they take their policies to mean.  The reason is that presumptions can be defeated, cancelled, rendered inapplicable or over thrown.  Otherwise, it would make no sense to say that the burden of proof rests on the person desirous of  negating the presumption. No policyholder can testify as to his, her, or its understanding of the meaning of the policy unless permitted by a court to testify as to what the policy policy language is taken to mean by him, her, or it.

2. Expert witnesses are sometimes disqualified from testifying as to the meaning of terms in insurance policies on the grounds that linguistic meaning is a matter of law and not an empirical matter, where admissible expert testimony is restricted to the empirical. That form of partial or topical  disqualification has happened to me from time to time.  

There is something similar to contract interpretation that is empirical, and that is what a term is taken to mean by components of the insurance industry, usually the community, socio-economic group, or professional group known as “adjusters.”  This understanding of meaning takes two forms.  One of them is that there is a consensus as to meaning; the other is that there is a divergence of understanding, or there are are divergences, as to the meaning of the language in the policy. Either one is an empirical matter and therefore open to testimony. 

Of course not every systematic disagreement as to policy language entails (or even implies) that there exists an ambiguity. But that fact does not matter, since the understanding of an adjuster can affect whether there has been a breach of contract on the part of the insurer.  Obviously this matter may pertain to issues of insurer bad faith, but it need not.  Under either type of these two situations (or both together) meaning matters. 

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“With all due respect, . . .”: A Short Note

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Michael Sean Quinn, Ph.D, J.D., Etc.

1300 West Lynn Suite 208

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com
www.michaelseanquinn.com

Words To Be Avoided

Now and then I have written on language, sayings, and wording to be avoided by lawyers most of the time..  These disquisitions have been short-ish, but several times the notes have been grouped together.  That was a bad idea, even though some readers–all lawyers, I’m sure–have found the blogs themselves interesting and even valuable.  Henceforth, I will try to shorten t he blogs themselves and see what happens.  I hope that they will be like short newspaper pieces, the find one never finds in either the NYT or the WSJ.  If I really succeed, they will like rather extended tweets–well, maybe not that short.

*********************************************************************************

When many of us use the word “due,”  we are suggesting that someone deserves the word or words come after.  The foundation of that statement may be because of achievement or accomplishment; sometimes its because of position; sometimes its because of a promise; sometimes and sometimes is derives from the nature; that is, the nature of the entity entitled to what is due. (And maybe there are a few more. They will all fit into the categories of this blog.

For lawyers, the problem has to do with using the phrase “due respect.”  It is often used when addressing judges. Here a couple of examples:

         “With all due respect, your honor, I ask you to reconsider you position.

          “With all due respect, to the court of appeals, I think it has this one wrong.”

A statement to a judge using the locution “with all due respect” is clearly in only one category. That one is  not achievement, an idea that has nothing to do with a given argument. It is not promise because the lawyers involved in the argument have made no such promise to the judge; the law requires them to behave receptively toward judges, but that has to do with rules of procedure and social stability, and not the desert of an individual judge.  A particular judge may not be entitled to any respect at all, but lawyers have to fake it under the applicable rules of conduct.  It has nothing to do with the nature of a judge as a human being and a citizen; that’s where we get the idea of of “due process of law,” and that idea does not fit here.

The only one left is position.  The underlying idea is this: the judge has a higher position that the lawyers before him, so they have to sound deferential, even if that think that the judge is an “idiot,” as contemporary parlance formulates the attitude.

When one says to a judge a sentence with the phrase “with all due respect,” one is essentially saying “You ‘ve got that wrong, so let me try and explain it again,” or is saying, “The court of appeals fucked that up, and so did some other cases, now its your chance to get it right.”

All judges know, whether explicitly, implicitly, or by intuition, that “with all due respect,” is a dodge that is almost certainly to be recognized for what it is.  That cannot be in the interest of the lawyer.  It is disdainful. It It is a very subtle form a condescension, as in “I have to look like I am respecting you because of you power.”

There are many ways to avoid this problem.  What about one of these:

      “Perhaps one could look at it this way. . . .”

      “Here’s another way to argue this point, your Honor. . . .”

      “There’s another way to put this argument, let me try it this way. . . .”

     “Your Honor, I don’t think I’m doing a very good job explaining this idea [or setting this view                         convincingly].  Here’s another way for me to set the argument forth. . . .”

Notice there is not concealed suggestion that the judge is actually a dunce, and if only he would think better, s/he would avoid the brier patch or the thistles growing up around it.  The last of the alternatives may be the best; it is certainly the most invitingly humble.

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Quinn Quotes

Mistakes always involve being wrong in some way. This proposition may be an analytic truth or even a tautology. A mistake is not always a bad thing. A mistake is often a better learning tool than getting something right. Some mistakes, properly appreciated, are very educational. (It is hard to see how this idea “works” in representing a client.  The usual route of always explaining everything to the client will probably not work here.  Indeed, the idea involves an obvious paradox.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact