QUINN’S OBSERVATIONS (ETC) ON LAW PRACTICE

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OBSERVATIONS, RECOLLECTIONS, OCCASIONAL SUGGESTIONS

 SOME INITIAL OBSERVATIONS

Michael Sean Quinn*

 I conjecture that there are a goodly number of lawyers who more-or-less fit at least some of the following descriptions and who have similar problems. 

I have practiced law for a long time; I have taught law in law schools from time to time; I have given many CLE lectures; I have published a fair amount of law-related stuff over the years; and I have been an expert on several law-related matters (insurance, lawyer performance, aspects if civil procedure, and legal ethics, broadly conceived). 

The last of these activities resulted, in part, from a previous career. For various reasons, what had become my niche practice mostly faded away, even though I was thought to be quite good at it. Perhaps a species of “age discrimination” had a role in this. A number of aging lawyers have tended to confirm this. They say that it originates for a number of sources: potential clients, clients, other lawyers, law firms, etc. 

In any case, I am now 72. I didn’t and don’t think I look it, but the other day my daughter said I looked like an aging Irish poet.  Self aesthetic over estimation is widespread. 

Consequently,  I have initiated a solo practice, though in times past I have been an associate and then partner in large firms, a partner in medium sized firms, and “the partner,” as it were, in a firm I set up and quasi-ran. I was even, at one point a very specialized solo sorta-non-litigation-but-litigation-related-practice. But that was then, and this now. Re-formation is both exciting and nerve-racking. People are wrong when they say that someone 70 is “fully baked” and therefore incapable of change. (The statement may be true, of course for those who actually think that they have no–or almost no flaws), e.g., “the Donald.”) The aging lawyer need not be “half baked,” and the good ones are not, but that point depends on an ambiguity. 

As usual, given my history, I started with litigation. That’s all I did for 15  years (1980-95); after that, I did mostly litigation for a few years; and thereafter I did some of that. (From 1995-97 I taught law  full time to law students.) It is now 2017, and I do not remember a number of propositions, rules, practices, customs, and various other things I think I knew or must have know years ago.  I am also e-clumsy, on my best days.* I have never done some things lots of solo lawyers learn to do and do, starting from young  years,  to wit: whatever secretaries, assistants, and paralegals do in larger firms.

*The other day, I expressed admiration as to what a younger lawyer was able to do on her desktop, and she said, “Well, I’ve been doing it since the third grade.” 

Learning and/or relearning some of these materials and matters (in addition to the e-stuff) is a struggle, and I have come to conceptualize myself as a fellow just getting out of law school struggling to obtain, represent, please, and prevail (or something like it) for new clients, many of whom are “walk-ins.” (Old friends tell me I am negatively exaggerating about this–maybe so, maybe not. After, I live in a polite social order.)

Naturally, this is all made more difficult by hating to acknowledge limitations, black holes, blind-spots, proof reading inattention, and so forth.  It is also made more tortuous by four other factors: (1) learning the newer intricacies of electronic law practice, (2) having to do things for myself that I have had others do for me year in and year out, (3) half-way mastering “marketing,” and (4) dealing with the necessity of what might be called discounted fees.  (These problem-areas are  in descending order of difficulty and stress: (3), (1), (2) then (4) at the bottom.) 

(Notice I did not mention the idea that many individual clients are less likely to tell the whole truth their lawyers than are many larger institutional client. There is a reason for this; the proposition being told may not be true, but that’s hard to determined. Not telling the truth is not equivalent to either lying or bullshitting.  

Still, investigating to some extent regarding what clients tell you before you do anything else, is a drag and it can be very expensive, often more so than the client can afford.  The nice thing about larger businesses as opposed to many individuals is that they expect to get sued and they have insurance or they have created systems of explicit accounts or implicit plans to pay legal fee, settle cases, and or pay damages. 

Individuals have trouble keeping all this straight.  When someone thinks and feels that s/he has been treated unjustly, s/he often finds it more unjust to pay expensive fees to deal with the problem. A person in this situation often takes they sense of frustration out on their lawyer.  Representing the wealthy is often easier that representing those in the so-called middle class.  

Notice also that I did not mention contingency fees.  I used to do these by the bushel-basket full, when I was in a large firm. Those were insurance subrogation cases.   Now I have discovered that contingency fee cases are too upsetting for a solo like me; they require too large an investment of money (e.g., for expert witnesses) and require too large an investment of time where there is substantial uncertainty and substantial time before the investment will pay off, if at all.  I will take them, so long as I can function as something like a broker-messenger-and-riskless associate. Conceivably I would take one if all expenses were to be paid as incurred, and the contingency fee was only part of the fee arrangement.)
One intentions with this set of blog essays and notes to suggest things I am relearning.  These are not intended only for those who have turned a little grey; they are intended for everybody. Some  of all sorts may be interesting to “the many” as well as “the few.”

Their titles will be noted as: “Lessons” at the start. 

*Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn

1300 West Lynn #208

Austin, Texas 78703

(o)(c) 512-656-0503

mquinn@msqlaw.com

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DEPOSITION QUESTIONING

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Leading Questions and Depositions: A Modest Proposal

Michael Sean Quinn*

Many lawyers taking depositions focus on non-leading questions to find out what the witness is going to say.  They see leading questions as restricted, or best used only, in cross examination.  I am inclined to think the opposite: that the narrowing process of leading questions is valuable in depositions.  The purpose of this short blog-essay is to experiment with this idea. 

Virtually any question can be formulated as a leading question. Consider the following question: “Does the sun rise in the east?” Now consider a translation: “The run rises in the east, true?” This can be done in many ways: “The sun rises in the east, agree?” “You would agree that the sun rises in the east?” “You agree that the sun rises in the east.” With false proposition almost the same can be done. “The sun does not rise in the west, true?” “It is false that the sun rises in the west, correct?”

There is a problem that needs to be discussed right out of the gate.  Leading questions often depend on the use of negatives: “You didn’t do this did you?”  “You don’t know about that, do you?”  The problem with negatives is that the technically true answer is not the same as the customary usage. In theory at least, a negative answer to a negative question can have two meanings.  Consider this:

What does the answer mean?  There are two alternatives:A#1:  No.  I didn’t do that.

A#2:  No.  It is false that I didn’t do it.

Contrary to received “talk-and-listen” habits, A#2 is the correct answer.

Given that this is true.  Counsel taking such a deposition is well advised to avoid what I shall call “pure negative questions.”  Counsel should use a slightly different formula.

Q: You didn’t do this. True? A: Yes. Or the witness might just say “True,” and stop.  

Now consider the opposite:

A: No. False. 

Counsel should insist upon the witness saying either “True” or “False.”

An alternative is to ask the witness what he means.  A better alternative  is to say;

Just so I’m sure I’ve understood you, you’ve just said that you did not do that.Have I got that right?  

Of course, the witness may say the following, and that creates a whole new set of problems 

 “I didn’t understand the question and therefore I didn’t understand what I was saying.”

Another way to deal with a witness’s slithering around later is to explicitly ask the witness whether s/he “understands” a given proposition.  Consider this one in an insurance bad faith case:

Q.  Do you agree that the duty of good faith and fair dealing requires that the adjuster “Look for coverage”?A. Yes. B. No.Either way, you may want to stop right there.  The “Yes” answer sets up criticism of the insurer and its independent adjusters.  And, the “No” answer, sets up devastating criticism for simply giving that answer, since (virtually) all, if not all, adjusters will agree with this propositions.

Now look at this one.  Again, this has to do with “Yes” v. “No” answers, with some other stuff mixed in:

Q. You know who L2 is, don’t you.A. Yes.Q. You recall that he is a partner in the lawfirm of Quincy, Quigly and Quirky–a law firm of 50–and that he is their specialist in legal malpractice defense cases? A . Yes. [Question: does a question mark really belong there?]

Q. You read his deposition in this case, Yes?A. Yes.  But it’s been a while.  [Already the witness has damaged himself.  Consider using a positive question, “When did you read it? of “When was the last time you read it?” Or the following question in accordance with the protocal in this “essay”:]Q. It’s been a long time has it  not?A. I don’t remember.  [What a wonderful answer.  Do not ask with “Why don’t you remember?!]Q. You haven’t read it more than once, have you?A. Not straight through, but I reviewed it.

Q. The copy you produced here does not have marginalia does it?A. No, but what difference does that make.  [Do not go further.  The lack of markings is  or can be powerful evidence that there was nothing more than a superficial review.  But if you just have to:]Q. You didn’t produce any notes here this morning did you?A. I did not.  There aren’t any.  Q. You know you reviewed the depo?A. Yes.  [For God’s sake, stop with this line.]Q. You agree with his view, do you?A. I cannot answer that question. Q.  It is true, in any case: L2 said that act X is, in and of itself, legal malpractice.   You agree with that, true? A. If that is what he said, then I would be happy to agree with him.[Ws should be very careful about giving answers like this.  The witness is here trying to avoid giving an affirmative answer–or really any answer.  S/he has failed.  If he agrees with L2, and L2 said what the deposing counsel said he said, then the witness, W, has agreed with the propositions that L2 asserted.  If it was general, then W has agreed to the general assertion.]At this point, consider showing W the deposition by page and line numbersQ. Given what is set forth here, I set forth L2’s statement correctly, did I not?A. Yes. [Stop!]B. No.  [Stop?  Go on?]Q. You cannot point to anyways I failed to set forth the substance of L2 statement, can you?Significantly, all professional activities have fundamental principles with which all persons in those positions must agree with.  Rejecting one of these principles is one or the other or both ignorant or unethical.  Here is yet another related situation:Q. You remember that L2 testified in this case, right?A. If you say so.Q. His deposition was taken, true?A. I think so.Q. You have read it?A. Yes, but a while back.                                                                                             

Q. Look at p. 1046 at lines 6-13.  Here, I’ll read them to you. [A reading takes place.] Q. Did I read the lines correctly?A. Yes, if I heard you correctly. Q. When he testified that propositions p, q, and r were true, did s/he have it right? Did s/he speak the truth? A.  I can’t answer this  question”Yes” or “No.”  I have a good reason, would you like to hear it?  Q. [An answer in reverse. Not really a question at all.]  No.  Just answer my question.  It is a Yes or No question.  We may go on to what you seem to want to talk about later, if I ask you.  Right now just answer the pending question.A.  I cannot do that.

This is a very “off” answer.  Either W has it right or wrong.  W needs to say No, if he disagrees.  He should say that and nothing else, until asked. [The depositioner should consider carefully whether to ask any further questions about this. W may have already impeached himself, if the questions up to there have been done right.]

There are some others like these.  I will stop with one more example.  This one involves “Is X consistent with Y.” 

Here is another from insurance:Q. Is providing all relevant medical records to the coverage-evaluating physician consistent with the duty of good faith and fair dealing? A. No. [This is not a leading question, technically, but it is designed to get a Yes or No answer. 

Now what if W’s answer is  A, “I don’t know.” What should L do? Almost certainly L should stop. If the question is clear, W has painted himself into a corner that cannot plausibly be contradicted later. What the witness has just done is to have said that providing all the relevant medical records to the coverage-evaluating physician is inconsistent with the duty of good faith and fair dealing.  To say that X is inconsistent with Y is to say that X and Y contradict each other.  This can be taken to mean that the duty of good faith and fair dealing forbids turning all of the relevant records to the coverage-determining physician.  If the insurer does the latter, it is in bad faith.

[Quinn: As one might expect, the “Is X consistent with Y” can do a lot of harm. The opposite can also be true. ConsiderQuestion: Can the question “Is X inconsistent with Y?” obtain the same or similar results?

In closing here is a reminder of an extremely important point.   Once a witness has answered the leading or a “Yes v. No” question in a way which is favorable to the deposing lawyer, than s/he should consider stopping right there.  In fact, in my view, the presumption should be: STOP while the having stopped is good.

This blog piece was published several years ago. A number of people seemed to like it, so I am presenting a slightly modified version again now. 

*Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn

1300 West Lynn #208

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com

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LYING AND LITIGATION

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NATION OF LIARS–TAKING THE OATH MAKE A DIFFERENCE?

MICHAEL SEAN QUINN*

Consider the following quote: 

Lying, it turns out, is something that most of us are very adept at. We lie with ease, in ways big and small, to strangers, co-workers, friends and loved ones. Our capacity to dishonesty is as funda- mental to us as our need to trust others which ironically makes us terrible at detecting lies. Being deceitful is woven into our very fabric, so much so that it would be truthful to say that to lie is human. 

That’s the end of the quote. Still one can driven to begin reading Thomas Hobbes again or to play the role of a postmodern Cartesian and say, “I lie therefor I exist.”

Back to the quote. Dan Winter, Why We Lie NATIONAL GEOGRAPHIC, p. 36 (June 2017). 

He quotes psychologist Bruno Verschuere: “‘The truth comes naturally, but lying takes effort and a sharp, flexible mind.” Winter continues, “Lying is part of the development process, like walking and talking. Children learn to lie between ages two and five, and lie the most when they are testing their independence.” As for Winter, he might as well say, “I talk therefore I lie.” As for Verschuere, one wonders how many “idiots” he has actually met, not to mention how many drug addicts.

Still. Assume what Winter says is true. How might this affect the practice of law, especially in adversarial litigation.  

Karl Popper, one of the great philosophers of science in the last century, thought that the best science was to hypothesize a proposition (of set of them) and try and refute it (or them). If you failed to refute then you might be able to reasonably infer its (or their) truth, for a while anyway. 

*Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn

1300 West Lynn #208

Austin, Texas 78703

(o)(c) 512-656-0503

mquinn@msqlaw.com

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THE “‘STOWERS’ DOCTRINE” — A TEXAS LITIGATION ICON

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“STOWERS”–RECOGNIZED EVERYWHERE, NEARLY WORSHIPED IN TEXAS, AND SIMPLER THAN MANY THINK

Michael Sean Quinn*

The “Stowers Doctrine” is based upon a case styled (entitled) G.A.Stowers Furniture Co. v. Am Indem. Co. 15 S.W.2d 544 (Tex. Comm’n App. 1929, holding approved). For some history on the case, see  Vince Morgan & Michael Sean Quinn,“Damn Fools” – Looking Back at Stowers after 75 Years, 6 J.
Texas Ins. Law 2 (May 2005). 
(Vincent Morgan was the senior author though 20 years my junior, the idea was his. Vince is among my most talented students.)

The problem underlying that case was (and remains) this.  A liability insurer has a duty to defend its insured when the plaintiff’s pleading(s) and the insurance policy, taken together, but otherwise alone, at least firmly suggest that there may be coverage. 

But there’s a problem. Suppose the plaintiff is seeking and somewhat likely to obtain an award of damages larger than the policy limits. Assuming that there is coverage, if now the contract of insurance and the probable facts are considered, the insured would be left exposed for all the damages adjudged against it that the policy does not cover because they exceed the upper limits of the amounts the policy covers, and that might be a large sum, indeed. 

(Sometimes victim-plaintiff and insured-defendant engineer the damages to be vastly more than policy limits. Sometimes insureds cooperate with the allegedly injured plaintiffs to chase off insurers and so trap them into having to pay extra policy limits damages. Sometimes those arrangements are hidden.) 
Now, the case brought by the plaintiff and defended by the liability insurer might come out for the  plaintiff. The defending insurer that tries the case with exposure larger than policy limits is gambling with the insured’s money. There needs to be a legal device to protect the insured from irresponsible litigation gambling by the defending insurer.  At the same time, it must be remembered, that it was the insured that chose how much insurance to buy, so that the insured is impliedly taking part of the  risk of exposure on itself.  

In the case being discussed here, for example, the policy limits were $500,000.00, and the damage award exceed $71.5M. (Truth be told, this number was illusory, though very scary.)

Thus, the Texas Supreme Court has, for many years, searched for a legal doctrine which would protect the insured from an insurer’s imprudent desire to bet on winning the case and an insurer from certain problems an insured might create for it.

The solution was (and is) the “Stowers Doctrine.” It has been modified several times but each of those changes have been slight, even though some lawyers like to say they are gigantic.  The over all substance has remained pretty much the same. In a recent decision, Seger v. Yorkshire Insurance Co., Ltd., decided June 17, 2016 (Case #13-0673), the Texas Supreme Court set forth a somewhat new formulation of the “Stowers Doctrine”–one that will probably last a generation, at least in substance. 

(Of course, during the next interval, lawyers will tinker, doodle, and dawdle over the Yorkshire opinion, present themselves as lawyers of enormous insight and creativity, and engage in “Stower amusements” that will create complex briefs, even more complicated coverage opinion letters, lengthier litigation, an occasional meaningless change in one court of appeals or another,  more CLE lectures, and a good deal of prideful strutting.)  
Thus, Stowers will remain an enduring doctrine. Granted, there is one problem with it, but it is merely a problem in language usage, but otherwise of no real consequence. This will be mentioned later. 

Here is what the SupremeCourt lays out in the opinion under discussion, citations omitted:

“A Stowers cause of action arises when an insurer negligently fails to settle a claim covered by an applicable [liability] policy within policy limits. To prove a Stowers claim, the insured much establish that (1) the claim is within the scope of coverage; (2) a demand was made that was within policy limits; and (3) the demand was such that an ordinary, prudent insurer would have accepted it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment.” 

(Interestingly, over the generations, one of the disputed matters has been what “sub-elements”regulate what counts as an obligation-triggering “Stowers Demand.  These Demands are and probably must be written, and so there is such a thing as a “Stowers Demand Letter.” There is hence a substantial CLE-level literature as to what counts as legally sufficient “Demand Letter” in this context. If that ever was a problem, except for incompetent lawyers, the Seger opinion has killed it off.  

Obviously, states the Court, the Stowers Doctrine does not apply, if there is no coverage–or no relevant coverage–under the policy. Significantly the burden of proving coverage under the terms of the policy is upon the insured. Consequently, the insured bears the burden of proof with respect to whether there is a compensable  Stowers cause action.  There is a trivial mistake in here, elsewhere impliedly corrected in the Yorkshire opinion. 

The mistake is to say that the insured bears the entire burden of whether the Stowers Doctrine applies. The problem arises out of the fact that the insured has the burden of proving coverage, in one sense, but the insurer has an applicable duty too.  To be sure, it is the duty of the insured to prove that the so-called coverage section applies, that the policy applies as to time and place, and (almost always) that the conditions for coverage are met. However, it is the duty of the insurer to prove that an exclusion applies, if and to the extent the insurer is denying coverage based upon an exclusion, while the burden of proof shifts back to the insured if it invoking an exception of an exclusion. 

What’s going on here is that there are two meanings of the word “coverage.” One has to do with what the policy says is “covered.” Section A in some policies. If a state of affairs falls within this “jurisdiction,” then the insurer bears the burden of proof. 

In whole contract, however, the term “coverage” covers all of the policy. In this second sense, there is no coverage if an exclusion applies.  The insured bears the entirety of the burden of proof in the first sense of the word “coverage” but not in the second.  

This ambiguity is well known and easy to discern, since it hinges on the express formulation of the policies, and in our day there is a more or less standard way for policies to be outlined.  

Of course, there are sophistical jurisprudential wags, who have suggested that exclusions are hidden in the this-is-covered section. Consider the following hypothetical: “This policy covers all occurrence that take place on even numbered days.” Isn’t it so, the rebel might say, that all odd numbered days are excluded by the clause in the coverage section? Of course, in theory, this observation is correct, but no one in law practice has ever “bought” it.  It is widely believed that from a pragmatic point of view, there is such a thing as a distinction without a difference 

      Michael Sean Quinn

Law Office of Michael Sean Quinn 

1300 West Lynn #208

Austin, Texas 78703

mquinn@msqlaw.com

(Resumes: See Website or easily found Blog and other Online Entries)
(Not perfectly proofread)

(c) 512-656-0503 

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COVERAGE FOR ODD-BALL PROFESSIONAL MALPRACTICE

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DUTY TO DEFEND FOR PAIR OF AU PAIR COMPANIES

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

Three companies supplied au pairs to customers in Colorado, and perhaps elsewhere.  Allegedly they were not paying those participating in their program enough through various devices, so a number of the au pairs sued them all for price fixing under the anti-trust law. The groups also sued two of the companies for breach of fiduciary duties and misrepresentations  to them, as well as under other legal theories. 

The companies sought coverage from their insurer, Colony Insurance Company.  It denied even a duty to defense.  The District Court in Colorado agreed with the insurer that anti-trust violations are not insured, since they are not integral to the services sold. The third company, therefore was not entitled to a duty to defend. 

The other ways the insureds treated the participants in its supply of services that it had recruited were potentially covered, and so the other two insured companies did have coverages, at least as to the duty to defend. 

Assuming the au pairs from distant lands are right about how they were treated, does this send a chill through your toes.  Women of the world unite? 

Colony Insurance Company v. Expert Group International Company, 1:15-cv-02499 (D. Colorado, 2015)

Michael Sean Quinn

Law Office of Michael Sean Quinn 

1300 West Lynn #208

Austin, Texas 78703

mquinn@msqlaw.com

(Resumes: See Website or easily foundOnline Entries)

(c) 512-656-0503 

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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