Expert Witness Testimony Blog | MSQ - Insurance Law

Expert Witness–Testing for Legal Sufficiency

EXPERT WITNESSES & JUDICIAL EPISTEMOLOGY

The Texas Supreme Court recently wrote a case which surely contains the most important discussion of thinking about expert witnesses it–or any other court anywhere, for that matter–has set forth for many years. Houston Unlimited, Inc. Metal Processing, [Defendant-Petitioner] v. Mel Acres Ranch [Plaintiff -Respondent], 57 Tex. Sup. Ct. J. 1223m 2014 WL 4116810 (August 22, 2014.)* It is not only a discourse on juridical epistemology; it is also a how-to manual for both judges and advocating lawyers. I will discuss details in another post (or other blogs). For now, here, I shall quote one of its most important observations:

“Experts who testify on behalf of parties to a lawsuit are subject to biases and potential abuses that are not always present outside the courtroom, and the courtroom itself may afford a veneer of credibility not present in other contexts. Legal sufficiency review requires courts to ensure that a jury that relies on an expert’s opinion has heard factual evidence that demonstrates that the opinion is not conclusory on its face.”Houston Unlimited, Inc. Metal Processing, [Defendant-Petitioner] v. Mel Acres Ranch

*This opinion can be found on the Court’s website. It is easily locatable.

**As shall be shown elsewhere, the wording is a bit misleading and could have been done more accurately from a semantic point of view.

BitTorrent

I am basically a tolerant, liberty-oriented, and liberal-minded person. I was delighted to see female priests in the Episcopal church; gay clergy is fine with me; and I have no objection to a Lesbian archbishop. I even now, under the improbably influence of Brent Cooper, a lawyer in Dallas (who-da thunk it), welcome the prospect of trying a case in front of a jury of “Millennials”–all including purple haired maidens, women with multiple tattoos in vivid color, and men wearing baseball caps on backward.

In addition, in opposition to all the Yellow Dogs I know–and that’s a lot–I think that most insurance companies, most of the time, are reasonable entities trying to reach a reasonable result that is more or less consistent with the applicable contract of insurance. Similarly, I think that most lawyers–more than 65%–try to obtain a semblance of justice, even in contested matters, even if many of them are far, far, less than perfect or even marvelously good, relatively speaking, in their non-lawyering lives.

It is therefore a personal deficiency of mine–granted one I nonetheless love, honor, and obey–to not just delight but take considerable joy in observing a truly wicked lawyer–an evil one!–washed over by a tide of condemnation. Hearing about a come a uppence is not nearly so pleasurable as “watching”–if only in the imagination–not only a fall from a high place but also a long, trudging trip on bare feet in the cold, cold rain on gravel roads on the way to the farthest away dumpy house of misery producing, sustaining, and worsening incarceration.

I have gone to confession on this point in which I take pride many times during and since my youth, yet (I do not really try to repent.) Following vengeance upon the profoundly and deserving unworthy is one of life’s pleasures, like warm cornbread, especially when you have no role in executing it. (In the current age of massive statin consumption, be careful not to eat too much of it.) Oddly enough, I would defend these wretches in court if s/he have the money* or were a close and beloved relative, like my brothers, my wife, and my children, even if broke. I’m sure my father would have done it for one or all of us. Even the worse get a defense in the civilized secular world; besides, we have not burned witches in several centuries.

(*The liberality and tolerance I have proclaimed for myself gives out here. I cannot see how the idea of pro bono applies since that phrase means “for the good,” and I see no good in this defense.)

Now I finally get to the point.

There is a syndicate of lawyers who are way down there, not far from the lowest of the low. Part of this is that they inflict suffering on large groups, and will go further if they can. What they do is to acquire copyrights “governing” poor pornography. They then utilize it to blackmail weak citizens who have downloaded some of their junk. They do this by finding out who these poor devils are by cyber investigations and then extort money from them, by use of our sacred courts, in exchange for silence. Usually these victimized ninnies pay what sounds like relative sums, $4500 plus-or-minus, to get out from under.

There have been at least dozens of these lawsuits around the country using boilerplate Complaints and then settling quickly. At last various people have represented the populace and triggered genuine court action.

When the courts realized what was going on, they reacted vigorously to some extent with money sanctions and orders requiring what is in effect restitution. In addition they have required recuperates to report to the courts all other courts where they have been trying to ruin the system and a sizable number of people. (How does one explain to his wife where the $4500 went when its disappearances cancels the to NYC to see, hear, and sit in the stands for this and then that?)

Thank you Lord, the knights of justice are on the move. In addition to the foregoing the judges are going to the relevant ethics committees of state bars, to U.S.Attorneys, to state attorney general, and to the FBI. Maybe they should also be going to the right groups that are influential so the “antiquated” provisions of the law of copyright can be discarded.

One of the leading cases is Ingenuity 13 LLC v. John Doe, 2013 WL 1898633 (C.D. Cal., May 6, 2013), Otis Wright, J., and its follower is AF Holdings, LLC v. John Does, 12-1445-9 (JNE/FLN)(D. Minn. Nov. 6, 2013), Franklin Noel, M.J. Judge’s Wright’s opinion contains marvelous charts, maps, and photographs of the “Punks of the Prenda,”–Prenda being the odious law firm of–the central filthy pigs–being led to the slaughters of disgrace, disbarment and imprisonment. The Minnesota case is far more brief and lacks the visuals. However, it dealt with five–REPEAT 5!–of these satanically sinful cases. My first hope regarding the Pythons of Prenda is that they not even have enough money to hire capable defense counsel, not even Harvard’s best.

On the Rhetoric of the Ridiculous

Overdoing rhetoric in briefs, motions, pleadings, etc., is poor, tasteless, and below-grade “C” lawyering. There has recently been direct and unequivocal explicit support for this obviously true proposition. Perhaps the pronouncement of the 6th Circuit will encourage those who do not realize that stridency of semantics, as opposed to restrained assertion and calm clear argument, is almost never a good idea. Let the ideas produce the desired effect; if they don’t do the job, try a different approach if possible.

Never resort to the crude bluster, cliche-ridden, the always overdone language of the pool-hall loudmouth. Grade C lawyers at this point might say that such a position is absurd. Such lawyers still would not have learned the lesson.—MSQ

An illustration of this point is to be found in a recent insurance case. Barbara Bennett et al v. State Farm Mutual Automobile Insurance Company, No. 13-3047, 2013 WL 5312398 (6th Cir. September 24, 2013)

In this case, Ms. Bennett was struck by an automobile as she was walking her dog. As a result of this accident she ended up in the car–not next to on the roadway, not standing next to the car, and not under the car.

She argued that she “occupied” the car under the State Farm policy. The District Judge held that State Farm’s defense was correct: she did not “occupy” the auto, since she was not in it. State Farm called Bennett’s position “ridiculous” and did it on the first page of their brief.

The court criticized this linguistic behavior for four reasons: first, where the language was in the brief, second because it was worded as it was; third because State Farm’s argument was fairly obviously invalid; and fourth because State Farm was wrong.

With regards to points #1 and #2 the court, quoting another opinion from which it wrote its opinion: “There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include “civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief, and that even when the record supports an extreme modified, ‘the better practice is usually to say out the facts and let the court reach its own conclusion.’ Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011).” Trying to, in some sense, compel opinions by the use of “battle-station” rhetoric is ill-advise.*

With regard to the third point, the court criticized State Farm’s argument. It argued that coverage analyses proceeded on the basis of how whole types of policies are interpreted: auto policies for example, and the “occupy” language of those types of policies. The court informed State Farm that contracts of insurance are to be interpreted one at a time and not as whole classes. That a court has decided a similar-looking policy in the way the insurer wants it interpreted does not bind a court, even itself. Nor is the “type of” versus “this language for this situation” valid reasoning.

State Farm also tried to argue that only someone who has an “intrinsic relationship” with a car can be said to “occupy” it, and hence the court ought to be examining whether Ms. Bennett has such a relationship with the car that struck her. Instead, the court observed, there was an authority in Ohio, where this suit was brought, that the intrinsic relationship test was one of several that can be applied “‘where a gray area exists concerning whether a person was an occupant of a vehicle and thus entitled to coverage. In this case, however, the policy marks out its zone of coverage in primary colors. The policy terms therefore control.”

On this ground, the court reversed the district court and entered judgment in favor of Bennett. And it did this without remanding.

One can wonder about the decision. Oddly enough the court does not include a quote from the policy. That is unusual but not really interesting as to the court’s reasoning. More interesting is the fact that the court does not give a specific argument–perhaps based on a hypothetical–supporting the proposition that being in a car entails the proposition that one is occupying the car.

It also clearly, though impliedly, rejects the idea that the term “on” in this situation is ambiguous. It seems to me that one can be on a car, e.g., on top of a car, without actually occupying the car. The man that washes, waxes, and cleans out my car every Saturday, does not occupy my car all the way through its work. He stands next to the car while is washing it; he climbs up on it to wax the top and gets in it to clean out the interior in various ways. It is plausible to say that only for the third part of the operation does he occupy the car.

Although the following example–nor anything like it–should ever be found in a brief (or anything like it), except as taken from a transcript of testimony. One can easily imagine a couple denying that they occupied the car while having sex on the front hood of the car (or even the roof), but “admitting” that they occupied the car when they did so in, for example, the back seat.

Perhaps–just perhaps–the court is impliedly suggesting that Bennett was occupying the car because she did have an intrinsic relationship with it. After all, she suffered further injuries as a result of being placed in the car–injuries that she would not have received had she not been knocked up onto the car. I suppose one could argue that if one has been put onto something it occupies it. One can easily have subscribed to this argument if the word is “into,” not “onto.”

One might oneself not be convinced by the court’s reasoning. Consider the dog belonging to the 2012 candidate the Republican Party recently ran for president. It did not occupy the family car when he was attached to the roof of the car as they all drove to Canada for a vacation. The disclosure of this fact caused a furor. Obviously, part of the general population agreed: the dog did not occupy the car. In some respects, although certainly not in other very important respects, Bennett and the dog share properties.

*I tried “battle” rhetoric first long ago in the presentation of an argument to the 8th Circuit. It was a covenant not to compete for the case with federal jurisdiction on grounds of diversity. I had tried the case and lost. Anyway, I opened by informing the court that “This case is one of national significance.” The head of one of the judges almost jerked up, and he immediately and a bit disdainfully asked, “How? Why?” My answer had to do with the lack of case authority on how to interpret a “Uniform” act that had been passed in the relevant state. I actually thought that a specialized uniform act, used in various ways around the country but enacted only here and there, made the matter then at hand one of national significance. My clients loved it, but. . . .

I suppose I must confess that my address there was not the last time I did that, though all the (few others, I hope and believe) were somehow triggered by a mysterious outside source, and therefore have been instances of unintended rhetorical idiocy so that I am not really responsible.

“Madam. Are you certain today?” [Sketch I]

There is a species of questions with respect to which witnesses (including expert witnesses) must be extra-careful. The category questions certainty. Often the question takes a simple and explicit form. The witness has said something clearly and straightforwardly, whereupon deposing counsel says to the witness:

Q. Are you certain of that?

Many answers are susceptible to this question. It’s one of those questions where examining counsel does not really care what answer is given. Look at two alternatives:

A#1: Yes. I’m certain of that.

This answer will make the witness look arrogant, and it will subject her to impeachment later on at trial. The impeachment will be presenting a whole group of situations that make the witness have to admit that she is not certain.

It was dark, wasn’t it, true?

You said the man you saw was about 5’6″, how tall is the woman sitting at the next table?

You didn’t have on your sunglasses, did you, even though it was noon in Austin on August 17th, true?

[And so on and on and on.]

Now look at A#2:

A#2. No, I am not certain.

Of course, then on direct examination at trial, or in settlement arguments, where the witness may not even be present, the side of the examining counsel will attack the witness for not really having trustworthy testimony.

How/z about this:

A#3. Yes, though not quite completely certain. No one could be.

Much better. Maybe best. What is examining counsel going to ask next? All the choices I can think of sound intrusive, too perfective, even absurd.

Quinn on Answering Another really good way to deal with this problem is to challenge the question. There are a number of ways to do this. I will call them QWs after “Questions by Witness.” Try QW#1: What do you mean by “certain”? Capable counsel might ask this question in response: Q#2 What do you mean by “certain”? Ways to deal with this second question is to say: A. The term “certain” can be used in a variety of different ways. And the discussion will go on for a while. The witness can look like she’s avoiding giving a reasonable answer. So consider trying these.

A#(i). I think so.A#(ii). It depends on what one means by “certain.”A#(iii). Well, it’s an empirical matter, not like mathematics, so no reasonable person can be absolutely certain. Given that caveat/limitation/caution, yes, I’m certain.A#(iv). Certainty is a psychological state. It has nothing to do with justified true belief. I have the latter three.

Personally, I like A#(iii). The witness looks reasonable and it is very difficult to challenge the idea that no one can be absolutely certain about purely empirical matters.

I like A#(iv) too but it’s complicated. Still, probably most people will agree with it.

I have heard “idiot” lawyers try this one:

Q. Are you certain?A. Yes. Q. Are you absolutely certain?

The lawyer has dug a deep hole for himself.

A. There is no such thing.A. Only a dogmatist fool would ever say something like that about this kind of matter.A. I don’t understand the difference between “certainty” and “absolute certainty,” althoughI’m certain you must think there is.

Quinn’s First Comment: This lawyer should get an award from “the local” of “Questionable Dumb Bell.”

A questioning lawyer may object on the grounds that the answer is not responsive, and try to get another answer. Protecting lawyers should argue against this. Here’s one way: “Yes it is. Move on.”Here’s another way. “Please explain your objection. Why isn’t what she said responsive?” Protecting counsel might consider trying “another” way first and then go to the first way second.

Quinn’s Second Comment: A witness should be prepared for this kind of question.

Quinn’s Third Comment: Try this. Without saying anything as a preference: “I am certain, though not completely certain.”

Quinn’s Fourth Comment: Try using responsive questions:

Q. What do you mean by ‘certain’?

This may generate a responsive question:

Q. What do you think the ‘word’ means?

A. There are so many meanings, Tell me what you are thinking.

And so forth.

Quinn’s Fifth Comment: Try to shift the discussion to the meaning of “sure.”

Q. Well, OK, you are not certain about X because you view if the world is that one can not really be certain about anything. Of course, lots of people would disagree with that. You know that don’t you?

A. I think so. And lots of people say that sort of thing.

Q. You not willing to say that you know that people disagree with you>

A. Knowledge and certainty are not the same things.

Q. OK. Let’s try it this way. Are you sure about what you have said?

Elaboration on Quinn’s Comment: Above all, the witness should say something like this, “I’m not sure what the difference is between being sure and being certain. I’m not sure how to talk about this, and I’m not certain how your question works. Please give your definitions.”

The Insurance Appraisal Process–Part I

Insurance Adjustment and Appraisals

Part I There are two types of appraisals. Those performed by one person, e.g., that of artworks, the value of the real estate, etc. The others are performed by perfectly stable committees as to size, e.g., those consisting of X number of persons all through the process, and usually there is an odd number. Then there are less than stable committees as to size; those expand if the first member cannot reach a decision. Insurance appraisals are of the last type. They start with two members and then expand to three members of the two original members who cannot reach a solution or do not do so over a reasonable period of time.

One purpose of the appraisal is to reach a solution as to the size of the insured’s damages and the amount the insurance company shall pay. It is designed and intended to shorten the length of time arguing over disputed amounts both with respect to probability and its amounts. At least, in theory, the language of the clause explicitly states that the amount of recovery is THE issue. Courts and litigant-participants don’t always either realize. Or maybe they know it, but just ignore it. This is a fact I shall ignore in this set of posts.

In order to discuss appraisal in a meaningful way, it is necessary to have the contractual provision clearly in mind. It is a standard provision included in (at least virtually) all first-party property insurance policies unless deleted. It is currently found in the ISO “form” property policies, and it has been there for several generations, whether residential or commercial.

Appraisal clauses are to be found in insurance contracts all over the world and are not restricted to first-party property insurance. It generally applies to first-party insurance of all types, including for intangible “objects” and/or “processes.” They are found in the “Conditions” section of the ISO policies.

The ISO language, entitled “Appraisal [,]” is as follows:

If we and you disagree on . . . the amount of the loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:

Pay its chosen appraiser; andBear the other expenses of the appraisal and umpire equally.If there is an appraisal, we will still retain our right to deny the claim.

Appraisal clauses are enforceable by legal process under a variety of circumstances, usually when an umpire (“Ump”) has decided the issue. It is extremely difficult to avoid the enforcement of an appraisal by judicial process; it very rarely ever happens, although it should happen more often when a principle of sound adjustment appraisal has been violated by one or more of those doing the appraising. Almost always these violations are connected with Umps. (I will return to this topic.) Appraisal clauses are enforceable under a great many circumstances, and the finality that often goes with them is quite often enforced. Dividing up the clause and thinking about it step-by-step might be a good idea. The propositions shall be entitled “P,” and numbered, e.g., “P#76”, to create a fictional number for illustration. Some of the following are explicit requirements found right on the surface. Others are just under the explicit wording:

P#1. There must be a written demand for an appraisal of the loss.P#2. There must be evaluations of the amount of the loss by each of the appraisers.P#3. There is no reason why the appraisers may not try to reach an agreement on their own. The probability of reaching an agreement is increased by there being separate thinking and cooperative mutual discussions and dedication. An appraisal is not intended to be adversarial advocacy. P#4. Each appraiser nominated by either side must be competent.P#5. Each appraiser nominated by either side must be impartial.P#6. Together with the appraisers “will select” and appoint [or attempt to appoint] an umpire.P#7. If they cannot do so, either party may request that an umpire be appointed by a judge of a court of jurisdiction.P#8. Each of the appraisers shall, separately, state [presumably in writing] both the value of the property and [the] amount of loss.P#9. If their statements are not in agreement [or if they fail to agree otherwise], they will submit their differences to the umpire.P#10. If two of the three agree then that agreement is the result and it is binding. I now turn to an analysis of the propositions and express opinions. [For obvious reasons, the ump will be one of the two.] The propositions, unamended and unsupplemented, are to be found in virtually all property policies. Of course, they can be changed by agreement, and they can even be eliminated, but both of these are very rare, and they never happen at all in smaller policies. There are some variations, and one will be discussed later.

Part II will be mostly concerned with analyses of the forgoing “Big Ten.”

Cyber-Insurance & “Established Insurance” Compared–PART #2

All insurance involves the transfer of risk(s). One party (or one group of parties) obtains value protection from losing–in some matter–something valuable. This loss can come about in a variety of ways: a ring is stolen, a key is permanently “misplaced,” a whole set goes now the sewer, a building burns down, a person sustains a bodily injury from a doctor who operated on the wrong wrist, a medical bill that has to be paid, a debtor hasn’t paid a bill, and so forth. Not all protections from risks are insurance; the use of a security interest, for example, in the loan transaction, illustrates this point. Not everyone who has some sort of transactional assurance of little to no loss has insurance. Interestingly in England, some of what are uniformly called “insurance policies” in America are sometimes called “assurance policies,” and what is called “insurance companies” in the United States can be called “assurance companies” or “assurance syndicates” in the U.K. Some might say that surety agreements are not insurance, but that would be a mistake.

The same will be true of cyber-insurance: if a bank makes a mistake; customers’ identities are stolen; the customers sustain actual damages then the bank may be liable and be obligated damages. Some cyber insurance policies may cover the loss. The bank’s customers may be insureds, or the bank may be the insured. If only the bank is the only insured, the policy is probably a liability policy or contains a relevant part. (Sometimes policies are “packages,” and so contain several different kinds of insurance.)

Many liability policies are “occurrence” policies, while others are “claims made” policies. Each one of these cyber-liabilities will have an enormous effect on what is covered and what is not.

Many policies include a duty incumbent on the insurer to defend the insured in case the insured is a defendant in litigation. Today, the cost of defense eats up the amount of coverage reduces the monetary size of the policy; and sometimes it does not.

It would be surprising if most cyber-liability insurance policies were not “claims made” type policies, and it is very likely that the policies will be designed so that defense costs eat up and thereby reduce the amount of insurance available to pay the actual loss inflicted on the person claiming a compensable loss.

(A key part of the insurance vocabulary for this distinction is “duty to defend” and “duty to indemnify. The second of the two duties isn’t exactly what it says it is, but the use of the phrase “duty to indemnity” is more than100 years old. It was right then but not now.)

A number of tort cases have been brought against different kinds of parties for permitting identity theft. At least usually, these cases are lost because the plaintiffs, those whose identity was stolen, have not sustained actual material losses Mental anguish without some “genuine injury” (usually physical but sometimes economic only) is not counted as actionable losses. See Stephen J. Rancourt, Hacking, Theft, and Corporate Negligence: Making the Case for Mandatory Encryption of Personal Information, 18 Tex. Wesleyan Law Rev. 183, Section II (2011) (helpful list of identity theft cases lost with none won). See Hammond v. The Bank of New York Mellon Corp., 210 WL 2643307 (S.D. N.Y. 2010). (containing a long list of influential cases where theft of identity cases dismissed since not actual damages).

Most insurance depends upon and requires fortuity. Most events, the occurrence are not fortuitous, from the point of view of the insured, are not insurable. Arson is not insurable if the policyholder starts a fire in his own building. If I throw my keys down into the sewer, the values of the keys are not insurable. If A deliberately burns down the building of B, A’s third-party liability carrier may not cover B’s loss, but B’s first-party insurance may. It might very well, however, pay A’s defense costs.

These points illustrate the difference between most third-party insurance, on the one hand, and first-party insurance on the other. A’s liability insurance is third-party insurance, whereas B’s insurance on his stuff, his cash under the bed, or health coverage on himself is first-party insurance.

Not all insurance requires fortuity. This coverage is very narrow, indeed tiny. Life insurance usually covers some types of suicide. The type in question is suicide which occurs sometime after the commencement of the policy. That period is usually two years. I cannot think of an analogy in cyber insurance[cm_simple_footnote id=”1″]. Of course, life insurance itself will be involved in cyber-insurance arrangements, but it will probably be the same there and then as it is here and now.

Most liability insurance is linked to torts; most cyber-liability insurance is already and/or will be like that. Some current policies are linked to breach of contract; creditors insurance is like that. Some policies that cover breaches of contract are included in “mostly-tort-based” liability policies, but not always. The opposite is also true; there are “mostly-contract-based” policies, and some of them include a few covered torts.

Also arising out of contracts, there are sometimes tort liabilities. Breaches of the duty of good faith and fair dealing found in all contracts are sometimes considered torts. If A breaches a contract with B and then breaches the contract, but by the breach physically injures B or injures C in some way or another, there may be a tort between A and C. There will probably be coverages like this, although cyber- liability insurers will exclude as much as they can of these configurations, or try to pass them off on other insurers, such as standard liability insurance available today.

Most of the torts existing now will, as is, or as adjusted, will be spread across the “cyber-field.” (I am ignoring damages caused to physical objects or the human body (a form of a physical object, since they are now covered). Here are at least some examples of tort theories that will be transposed across the “physical” or “real” world to the “cyber” or “virtual” world.

Negligence: This is the failure of an insured to do what a normal and prudent person would do under the circumstances or fail to conduct himself in accordance with the standard of care that is generally accepted given the situation (What counts as damages, what is compensable under insurance policies, and how the size of covered damages are calculated may all be different.)

Defamation Invasion of privacyInterference with contractInterference with the economic positionstrict liability (necessary adaptations replacing the requirement of there being liability only if a physical object–like a toaster–is at least part of the so-called proximate cause)nuisancefraudmisrepresentationerrors and omissions type torts (These are really a kind of negligence, at least usually. But they are specialized): lawyersaccountantsbrokers of various sortsthird party managers, administrators, and/or quasi-agents (Some insurance adjusters are like this.)designers of codes, etc.encryptions, etcfirewalls and similar devicessimilar safety measuressimplicity

intellectual-property torts: wrongful use, wrongful acquisition, wrongful imitation, etc. Imagine using computer hacking to obtain a patented plan for something, then destroying the owner’s plan, and then putting the plan to one’s own use and the list goes on for a long time.

No doubt the reader will have noticed that the concept of negligence is a complex and widespread type of concept across all of human behavior and covers an enormous range of possible damages. The reader may think of anything s/he can which causes damages to someone other than the “actor,” or some related parties, and negligence will exist in cyber-law and cyber-insurance law. Not all kinds of injuries and therefore not all kinds of damage will be. This is one place where there may be a whole variety of alterations needed and provided.

In terms of adjusting, altering, changing, and revising cyber-insurance, first-party coverage will be treated and work much the same way. It will still, almost certainly turn on the insured having a property interest–or something like it–in that which is insured.

Cyber-Insurance aka E-Commerce Insurance–Part #1

This is the first “chapter” in a string of blogs focusing on cyber insurance. This one will concern the look of “yesterday’s” policies–the ones used for a long, long time–and the look of a branch of “tomorrow’s, that is, the cyber policies. Actually, the two groups will look remarkably alike in the organization. When you think about it, “Really? How could it be otherwise?”

The next chapter will concern some aspects of substantive similarity. Other blogs will list and very briefly sketch some of the currently available policies. Somewhere along the way, there will be some definitions and some explorations or explanations of such. Most significantly, there will be chapters discussing the contents of a few actual cyber insurance policies.

There are not many meaningful, focused, or informative publications about cyber insurance. (That is the name-phrase that will be used here; it has mostly replaced the term “E-Commerce.”) Most available writings are really ads of some sort for somebody some are attorney firms publicizing themselves and conjecturing about the future, and there are some panel discussions which would probably interest almost no one really interested in the nature of the type of insurance. Another category of the prevailing literature is the pieces written at law firms. Much of this is a law firm advertising its services, though sometimes that is combined with guesswork or speculations about how cyber-insurance will develop. There are a few specimen policies issued by some of the best insurance companies, but they do not provide meaningful discussion. A book published on this topic, and it is the only one so far as I can see, is by George S. Sutcliffe entitled E-Commerce and Internet Risks, Laws, Loss Control, and Insurance (Standard Publishing Corporation, 2001). It has a helpful essay, which includes far too many diverse topics. The appendices, however, have a glossary, a summary of some policies, and some specimen policies. So far as I can tell, this is the sourcebook. No doubt, one of the reasons for the absence of a detailed study of the dimensions of cyber-insurance is that there are almost no–or even no–reported cases involving coverage disputes. (I, for example, have yet to find one such case on Westlaw; and law reviews have no informative discussions of the matter. This is not to say that there are no cyber cases–for example, cyber tort cases–that are without hints. Several large law firm members have told me that their firms each have a dozen or so cases, but they also say that none are in or close to litigation. There is also one (“Westlaw-‘reported'”) case involving identity theft in which a bank offered, among other things free identity theft insurance up to $25,000.00 to its customers as part of a remedy following an identity theft incident. Alas, the plaintiff class rejected the offer. Hammond v. Bank of N.Y. Mellon Corp., 2010 WL 2643307 (S.D.N.Y., June 25, 2010). (Of course, one can see why–if a plaintiff thought s/he might be at the door of big damages–would reject a $25k settlement.) So far as I can tell, in all court-decided cases (thus not including settlements, if any) involving identity theft, the plaintiffs have lost. For a survey and discussion of these cases, see Stephen J. Rancourt, Hacking, Theft, and Corporate Negligence: Making the Case for Mandatory Encryption of Personal Information, 18 Tex.Wesleyan Review 184, 187-199 (Winter, 2011). There is a very recent case in which the plaintiff had not yet experienced a loss, but for that reason only, could still proceed if their injuries were not entirely speculative and not off in the far distant further. This matter is called a matter of “Standing” under federal court jurisprudence. In re SONY GAMING NETWORKS AND CUSTOMER ATA SECURITY BREACH LITIGATION, _____ F.Supp. ____ (S.D.Cal. 2012)(2012 WL 4849054). Most of the case was dismissed on other grounds, but an actual already existing injury is not an iron-clad requirement for a right to proceed, at least under some circumstances. Now, before I turn to the analysis of policies and make conjectures, aka guesses, as to what their difficult sections might mean, I start with a few fundamentals for the insurance novice. These come from general insurance sources and therefore are not special when it comes to cyber insurance. At one basic level, insurance is insurance, and so are some other contracts e.g., bonds and ancient bottom try arrangements. So let’s begin. Virtually all primary insurance contracts have roughly the same form. Excess and umbrella policies do not necessarily, but they often incorporate significant, if not all, provisions found in the primary policy. Contracts of reinsurance, although they are contracts of insurance, do not follow the same formula. Here, in broad strokes, is a sketch of common sections. Often different principal sections are identified by the names I use here and by roman numerals. I. Declaration Page (or Sheet). This part includes the name(s) of the actual insurer and the name(s) of the policyholders. Often it sets forth the premium, the name of the intermediary, policy limits, etc. Sometimes they have charts or columns, and the policy includes that which is checked off. The deductible is specified or set up, as is co-insurance if any. Other named insureds may be named elsewhere. II. Insuring Agreement. This part sets forth what is insured, i.e., a particular vehicle, a particular building, physical objects, one or more banquets, particular weddings, works of art, and so forth.

These agreements are usually for liability (3rd party coverage) or for things, e.g., belonging to the insured (1st party coverage.) The agreements usually do not recite a fundamental principle of insurance and that is fortuity. This is an axiom. Deliberately caused injuries or damages are not covered; arson is not covered; physically smashing something up deliberately, e.g., a computer, fraud, and so forth. Intentional acts are covered, so long as the loss was not. There is insurance for those driving too fast, but not if they deliberately run over or smash into something. Sometimes insurance policies offer both liability and first-party insurance, often covering the physical property. Sometimes the first party insurance may cover abstract properties, and this is true in the area of cyber insurance, in addition to business loss and trade credit insurances. Bottomry was like this 3000+ years ago. III. Definitions. There is usually an indication that there are definitions to be found in the policy: quotation marks, bold lettering, italics, etc. Sometimes there are only a few definitions; sometimes, as in many cyber policies, the number is much larger than most current policies. Often, at least to the layperson, the definitions are obscure. (This is not necessarily a matter of great consequence, since definitions in engineering malpractice policies are also quite difficult for the layperson–so much so that expert witnesses often have to be used for the benefit of the jury.) IV, Exclusions, This sets forth what the insurance contract does not cover. Of course, there are exclusions quietly built into the Insurance Agreement, but this is generally not recognized. The list of exclusions can be relatively short, or it can be quite long, as it is in most cyber insurance policies, specially packaged policies. Policyholders have to prove that they meet the requirements of the relevant Insurance Agreements. Carriers have the burden of proof regarding exclusions; the burden shifts back to the insureds when there are exceptions to the exclusions. The content of many exclusions in cyber-insurance policies is likely to be substantially different since there will be few or no tangible objects or situations to exclude. (None like this: “We do not exclude the damages caused by your pets eating your bushes.”) V. Conditions. They have usually conditioned precedents and there are a few conditions subsequent. Among the best known of conditions are the insured’s duty to cooperate in the adjustment process and their duty of remediating losses, that is, using reasonable efforts to keep those losses from getting worse (e.g., things like storm-damaged buildings) from getting any worse. Some requirements, which are listed in the “Conditions” section, are no conditions at all but covenants, i.e., promises. Timely notice of covered events is often not really a condition but a covenant, i.e., promise. The requirement of cooperation may be like that. Remediation is perhaps not a condition or a promise irrespective of what the policy says, and so forth. It is not completely determined what contractual requirements are actually conditions and which are not. Nevertheless, some other common obligations usually classified as conditions are these: subrogation rights, some features of contract termination, some features of cancellation, assignment, the status of other insurance, and more. Arguments about what is a condition precedent (or subsequent) versus what is a “mere” promise, are not uncommon, and the truth is not determined by the name of the section. Just because something is found in a section entitled “Condition” does not mean that it is a condition. VII. Endorsements. There can be all sorts of endorsements: adding insuring agreements, cutting them, deleting or adding exclusions, adding or subtracting named insureds from the list, adding insured objects, things, or whatever, and much more. For standard policies, there are closets full of standardized endorsements. In large innovative industries, there will be negotiated policies, but not for long. Purely negotiated policies make profitable underwriting nearly impossible. VIII. Miscellaneous. A whole variety of things can fit here. This simple list gives one a beginning idea, at least, as to how insurance policies are divided up. The ordered list of entries is not intended to name the order of parts of the policy. Often, for example, the definitions section comes between the Insuring Agreement Section and the Exclusions Section. It also needs to be remembered that some policies are “package” policies, meaning that they provide several different types of insurance all at once, in the same contract. First and Third Party insurance often appear like this, e.g., in auto insurance, in homeowners insurance, and indifferent large policies. Usually, the differences are easy to recognize. There is no reason to think that cyber-insurance policies (that is, contracts) will be much different in form. Rough versions of similar forms run back hundreds of years.

The Prudent Expert Witness: Agreements and Performance, #1

I do some expert witness work, so this blog entry contains some experience-based remarks about retainer agreements and some aspects of expert witness performance.

Alas, I have not used formal retainer agreements much. Usually, they have been in the “back of the envelope” form, or they have been oral. Part of the reason for this is that a good deal of my work has come from, or through people I know; lots of it comes from lawyers and clients (sometimes theirs and sometimes mine). From time to time, I dictate what I want and have them send me an email, and that seems to work, but it leaves out important matters, I will set forth presently. A few times my informality has been a bad idea. As a result, I have repented (more or less). So, I will discuss what belongs in a form agreement for expert services, as I see it. I will also discuss some of what I regard as, features of sound performance. Sometimes, at least, matters of sound performance can be included in the retainer agreement. The following are lessons based on issues I have had to learn the hard way.

Lesson One: Get a clear description of the scope of the assignment and then change the scope, both outwardly and inwardly, if and when it changes.

Lesson Two: Find out what experienced experts are charging in “your” area and start there. Warn of probable changes which should be expected over time. Often lawyers resist paying you more than they are billing. This is probably a reasonable idea with which to cooperate, at least most of the time, but only if their fees are reasonably high. Charitable expert witnessing is to be avoided.

Lesson Three: Make sure the retainer is both reasonable and sufficient. Consider making the retainer amount stay ahead of the payment of bills. (My retainer is $X; it must stay at $X at all times.” This agreement is frequently not possible—or at least too difficult–to arrange.

Lesson Four: Insist that the bills be paid on time. A way to do this is: “If I have not received a check within 30 days of my billing you, I will perform no further work until paid.” Often, I cannot make this happen. Sometimes I try to get paid on a quicker temporal schedule. That seldom works.

Lesson Five: Try to get their client or the lawyers themselves to pay all out-of-town expenses. Sometimes one can get this and sometimes not.

Lesson Six: Try to get people to come and see you. They will want to do this anyway if your office is in an attractive city.Exception: You really want to go there. Sometimes the taking of a spouse is a good thing for mostly non-professional reasons.

Lesson Seven: Expect corporations to pay you faster than people and people faster than insurance companies.

Lesson Eight: Consult with the lawyers about the contents of your reports, etc. Do not let them assist you with prose, except with problems of prose: spelling, grammar, etc. Let the lawyer assist you by stating facts you have missed, not understood, and/or not appreciated. Don’t always believe them. Confirm everything yourself. Do not accept the lawyer’s intense use of colorful language even if you believe it. You are a reporter and a historian, not an advocate. This one has been very hard for me and I was kicked out of a case by the judge once for making this mistake.

Lesson Nine: Always remember that experts’ opinions take an “If-then” form. It should never take a “This is ‘It'” form. Undisputed facts are exceptions. Obvious and undeniable facts are another.

Lesson Ten: It is law-school-level truth that expert witnesses are not permitted to testify about the law. Don’t bet on it. For one thing, if you are testifying about some industry practice, you may have to refer to the law by talking about what is generally understood about the law.

Virtually all of these “Lessons” have, not only practical implications but can—in various ways—be set forth, to some extent, in retainer letters. On this matter, tact and restraint are required.

Creations and Insertions into Existing Contracts Part II

In my last post on insurance law, I discussed the idea that it is not possible to create formerly non-existing clauses or coverages in an already existing policy, i.e., insurance contracts. I wrote on only what is all, or virtually all, the problem, namely, when the insured criticized for having tried to (or having blundered into) perform such a creation. Here in Part II, I turn to the insurer. The other day, in a deposition, I was asked whether I had ever heard of the axiom that “Insurers cannot create coverage in their policies.” I said that I had never heard of that axiom applied to insurers and that, in any case, the axiom would depend on what the word “creation” meant and what the invoked idea was. She, the taker of the deposition, looked at me with a combination of astonishment and contempt. In and of itself, that combination was not a matter of concern–of any consequence, really.

One cannot have real new or unrecognized ideas without the rigid-minded or the uninformed to hold you in contempt, and it does not matter when I am right or when I am wrong. Those who do not believe in the value of innovation are pretty much all like that, and this is especially true in the law. Besides, very few cases consider insurers and their “power” to create new provisions in their own contracts of insurance.—MSQ

Of course, an insurer may not create new coverage in an already existing policy if it is injurious to the insured. The paradigm is simple. Suppose an insurer provides coverage A, B, and C to its insured in a given contract. Now suppose that absent any dispute over coverage, the insurer decided for some reason that it “really” only offered coverage A and B. In other words, it deleted coverage C from the policy. This would actually be creating new coverage, namely: A & B & ~C. Of course, these combinations are groups–sets, as it were–but that makes no difference. There is such a thing as creation by elimination. In a painting, the deletion of a figure creates a new painting, and–in any case–it is a creation. Just as the real objection to creation-by-insurer is based on the fact that the insurer gets hurt, the objection to this anti-creationism is that the insured gets hurt. Now, consider the opposite. What if the insurer created coverage that was to the benefit of the insured? It is doubtful that the insured would object. Of course, an Anti-Creationist could still say that these things cannot be done according to the fundamental principles. Of course, this proposition is false. Parties can agree to changes in contracts, and the benefited party may be considered cooperating–and almost certainly would be–or that party might have waived any objection s/he might have. Now, why might an insurer do this? There are lots of reasons, some questionable and some not. I shall mention only one reason, and that one is not subtle and perfectly acceptable. Consider an insurer, that noticed another insurer using the same policy, was excluding something, and that insurer researched the case law on the subject and found that there were two cases supporting the actions of the other insurers. Suppose the insurer in question looked at the language of the contract and said to itself, we are not sure what to do here. We did not intend not to insure this; we intended to insure it. We “the underwriting department,” together with senior executives, do not care that this is a standard policy used elsewhere in the industry. Hence, straight forward we will consider it covered. We should go back and get the six (6) cases we “fouled up,” and make them conform to our view. It seems to me that this is a paradigm of policy coverage creation.

Lawyers, Election Law, Jurisprudence, and Proper Governance

ELECTION LAW, GOVERNANCE, AND DEMOCRACY

Factions and therefore political parties are something that acutely concerned many of the “Founding Persons,” of our republic e.g., both Washington and Madison, among many others.

Political parties are a paradox. At the same time, they are both required for large democracies and a threat to them.

In elections, the applicable law must be followed–something all reasonable lawyers and most other citizens know.

One wonders if parties and political figures alike have a moral obligation–all republics and all democracies include moral or ethical obligations as to political conduct as part of their constitutive structures–to conduct elections in accordance with other principles as well election laws. —MSQ

Suppose it is within the law for a candidate to actually or impliedly threaten opposing candidates and those who support them with jail (prison) terms simply for their opposing him/her. Most of us would agree that this is not an acceptable way conduct political campaigns in a republic or democracy. It seems to me that knowledge of this is especially true of lawyers.

Now, what about the following statement, whether clearly and explicitly made or clearly implied:

“If I do not win this election, I will refuse to leave office and simply take over. Votes cast be damned.” —MSQ

It might be within free political speech to say such things, but is it within the sound jurisprudence of election law?

Wouldn’t ethical principles forbid this kind of threat and negativity?

Does it not undermine fundamental principles of both democracy and the principles which make a country a republic?

Does it not disrespect the country and its essence as well as its constitution?

Does it not remind historically oriented lawyers of “Natural Law,” something which was guiding principles of the foundation of our republic?

Can Opposing Counsel Manipulate a Liability Insurer Where Crime Is Involved?

Mother (“M”), then 43, and Daughter (“D”), then 21, each pleaded guilty to criminal mischief in Maine after having several auto collisions in quick succession in a cemetery.

At first, at least, D was thought to have deliberately run into M’s car in order to prevent her mother from leaving the premises, since she, that is, M, was dead drunk. Later M changed the story. M’s second story was that her daughter had run into her because her, that is D’s, foot got stuck somehow on/in/with/etc. D’s accelerator. Nothing has been reported about how M happened to know this, if—indeed—she did.

According to the first story M deliberately ran into D, after D ran into her. How many times this kept going is not discussed in the media, and neither is how a relatively simple collision broke up at least several tombstones. (A photograph in the local paper is not clear how much breakage there was rather than mere turnings over, but the amount of damages the cemetery sought suggests t least one actual destruction.)

The press stories are full of silences. D and M were apparently at the cemetery because, it is said, D’s father (“F”) is buried there. There is, however, no discussion of the relationship between M and F.

Press stories stated that appear right after the two guilty pleas were entered, insurance money was paid to the cemetery for damages M and D had caused the property. Upon the payment of the $25,000 insurance money, the cemetery dismissed its case that was seeking a tort recovery of $35,000±. Interestingly, the settlement closed the case before M and D were served.

With regard to insurance, nothing has been said to the public about how many insurers were involved. One for M and another for D? Or was there just one that insured them both?

What is said is that M and D each had their own criminal defense attorney. Why? We shall see. So, Why did the Carrier(s) Pay?

I am assuming without knowing that there was but one carrier. I’ll come back to that assumption.

Of course, it could be that the insurer didn’t want to spend any more money fooling around with the case. That could easily cost more than $25K. That’s reasonable insurance company thinking, except for one thing. The drivers were charged with crimes—possibly even felonies since criminal mischief just by itself is a misdemeanor, but aggravated criminal mischief is a felony.

Frequently, insurers are hesitant, to say the least, to pay claims where charges of crimes are involved—drunk driving is an exception.

Here is my speculation as to what might have happened. D’s foot did not get tangled up with the accelerator in her car somehow. I have heard this story a number of times, and I believe it is bullshit. That account is very unlikely to be true. Accelerators are flat levers and the foot is on top. If it gets underneath it, the driver just draws his foot toward him to end the problem, if there is one.D ran into M quite deliberately. The reason she did this doesn’t matter: Mommy was drunk? She cursed the father I loved? She called me a worthless little bitch? None of these matters, of course. D ran into M deliberately– quite intentionally. (I must conceive that the punishment of M does not make it clear how M felt about F.)

Nothing is said in the press about why M thereafter ran into D. Assume the implausible: M’s story about D’s tangle with the accelerator was true. Why would M run into D quite deliberately? Well, she might think D hit her deliberately and responded accordingly. But then, M is guilty of aggravated criminal mischief though D would not be of that or the weaker charge, mere mischief. But both pleaded guilty to the lesser charge.

So, here’s what happened. D deliberately ran into M, and it pissed mommy off so badly that she rammed her daughter back. There may have been more than two collisions. They may have happened several times. At first, both M and D were charged with aggravated criminal mischief, but a deal was struck.

An insurance claim was made, and the insurer explained why it would be denied unless a “clearer” explanation was provided.

Since D was guilty of aggravated criminal mischief and she was facing up to 5 years in the pokey, where it can get very chilly, indeed. D must keep her mouth shut. The mother tells a different story. “I don’t care what my daughter said first, she wouldn’t run into me intentionally, she’s a good girl. And besides, she said that she could get her foot loose from the pedal.”

And M might continue this way, “The truth is, we were both a little tipsy.” So long as the daughter doesn’t speak, the insurer is stuck. What we have then is two drunken driving cases, and insurers pay for those accidents. Some of the collisions are accidents, the insurer might say to itself.

The real problem would be M’s running into D. Granted she was drunk, but even drunken people can form deliberate intent and go forward. The key then is to get the charges—and any chance of any other charges—reduced to misdemeanors—and that’s all criminal mischief is, so long as there is no aggravation element.

And this is where having two lawyers come in. If both of them are trying cases, they might get split into two cases. Each lawyer will argue that the other person broke up the gravestones, if—indeed—either of them did.

Better all, including DA and Judge, agree, to reduce the charges from aggravated criminal mischief and do two guilty pleas at the same time. The DA even said part of the state’s problem was proving who did which damage. (This is probably not so. Proof of property damage is required, but if it were provable that each did some, then. . . . See why there are two criminal defense counsel?)One small sliver of evidence supports my speculation—or something like it—and that is because D got a slightly more severe sentence than M did.

M’s punishment was 180 days in the slammer, all suspended, and one year of probation. The probation banned her from entering the cemetery without getting permission from the judge, in effect, functioning as a cemetery warden. (No doubt the judge would have asked the cemetery association manager whether M’s coming on the grounds was OK with the association.) M also had to pay a $100 fine, though D didn’t.

D’s punishment was 180 days in the can, all suspended, and one year of “administrative release,” during which she would have to perform 50 hours of community service work, all to be done during the first 10 months of the year period. Granted D didn’t have to pay the fine M did, but she might have regarded 50 hours of community service as more severe, that a hundred bucks. I certainly would. The sentences and the insurance payment were all made in October 2014. So far as D’s sentence is concerned that means she has 50 hours of service to perform starting right then.

So from the point of view of the liability carrier, what happened?

A plan was constructed amongst the criminal defense lawyers. This deal was constructed by two officers of the court, the DA, an elected official, and a judge, also an official of the state. The substance of the deal is quite simple: M and D would get their wrists slapped and the cemetery would get a little money, possibly a bit more than it actually needed to fix the rocks, but not much. All this happened, of course, without the carriers’ (or, carrier’s) actual participation or consent.

Tell me, good reader, was justice served? Was democracy or representative government undermined? Is the question made any easier, if the insurer(s) knew what was going on, and implicitly consented to it, so long as its name was kept out of the deal?

From a philosophical standpoint, it does not matter in the slightest that only a few dollars were involved in the arrangement.

Lawyers and the Aging Process

To leave or To Not Leave? That Is a Question

Some activities—some jobs—become outgrown as time passes. If you don’t play superb baseball by the time you are eighteen, you are not going to the “pros.” The same goes for football; if you’re not great when you’re a senior in high school, you’re not going to play in the NFL. The opposite may be true for some of the arts. Many novelists do not really achieve glory until later, say, upon the publication of a later novel–Penelope Fitzgerald did not publish her first novel until she was 58, more or less.

Still, other activities can last a lifetime; some composers are like this. More than a few of them were prodigies and their work lasted a lifetime. Mozart was like this, although he died young. A few activities do not really begin until later in life. For most wisdom comes with age, although wisdom itself is a matter of degree–like quality in art.

The practice of law is not a single activity. Lawyers do many different kinds of things. They do many different kinds of marketing, aka, client recruiting. In addition, the practice of law is a social game; this may require (or, impose) all sorts of different virtues, traits of character, not to mention skill sets. All of these may change over time for individual lawyers. One lawyer might start off as a back-room research geek and later be involved in something quite different.

Something all lawyers directly dealing with clients need is a capacity for excellent, deliberative—practical–reasoning, and that requires wisdom. Now for a really important fact, wisdom requires knowledge, depth, and experience.

The vast majority of the young do not have this quality–I certainly didn’t. With good luck and, more importantly, some attention to its acquisition—wisdom grows naturally over time. This means that lawyers who are aging may have gotten better, certainly as regards consulting, counseling, planning, advising, comforting, and so forth.

Some lawyers, who are desirous of “taking over” pieces of practice, parts of a law firm, and the allegiance of clients and other lawyers, bypass this fact, where it is possible for them to do so, for example, when they are not subordinates. Quite predictably some aging lawyers are the victims of these maneuvers. It may be a satisfying fact worth remembering that more people—including more lawyers—fail at rising by grabbing than succeed. The media presents only the stories of those who enter the stratosphere of immense success. The rest of the narratives are boring and discouraging.

This is often not true with clients, even potential clients. Many of them recognize that those who have aged some may not talk or think quite as quickly as those who are young, but they often do think much more deeply and comprehensively. However, a lawyer’s making sure that he has the same level of loyalty from the client that the client has from him may take both special attention and skill on the part of an aging lawyer.

An additional problem for such a lawyer that represents organizations is that as younger executives rise, they tend to want the company to be represented by lawyers they match up with in various ways, one of which is age. Out with the old and in with the new, as they say. As the aging executives in their corporations move on, up, or out, external counsel may be skirted, at least, by the younger managers.

It may be useful to think of the practice of the law as a mansion with many rooms. It may be a good idea for some lawyers to continue lawyering by doing different sorts of things than they have done for years on end. Significantly, since the various rooms are all part of the same dwelling—or, at least, attached to it–many things from one room can be moved to another, although “the new” that’s already there takes some getting used to, and new furnishings may have to be acquired. Such selections, repairs, and refurbishings will take time, effort, and some new education. All these will cost money.

If you’ve had it and you want out, go. If you don’t want to walk away from the law, don’t. If you wish to keep going, do it. If you also want more golf or have more beach life, integrate what you want. There is nothing new in what I’m saying. It runs back to the great Roman lawyer* and rhetorician, Cicero. (He was also a political figure (alas), a philosopher, and a superb writer. He wrote on pretty much this topic.)

Currently, there are helpful—even inspiring—books on the subject. One of them is MASTERING THE ARE OF QUITTING by Peg Strep and Alan Bernstein and another is UNRETIREMENT: HOW BABY BOOMERS ARE CHANGING THE WAY WE THINK ABOUT WORK, COMMUNITY, AND THE GOOD LIFE by Chris Farrell. Neither is only about lawyers and the legal profession, but both apply, and each is helpful.

The most striking piece I have read recently was in a special section of the December 1, 2014, WALL STREET JOURNAL entitled “Encore.” The main article was entitled “Why Everything you [[‘]Know[‘] or Think You Know]” About Aging Is Probably Wrong.” Anne Tergesen was the author. She has surveyed a number of current psychological and similar studies—and interviewed some of the authors—all about getting older. Here are her six (6) general propositions, granted changed by me a little bit:

Depression is not more prevalent in old age. In fact, many older people are happier than ever and enjoy the aging process.Cognitive decline in the grasp of thought, and reasoning is not inevitable, though “road runner” speeds may slow abit. Speed, order, depth, and coherence need to have nothing to do with each other, setting aside special diseases. (Test results to the contrary are inadvertently designed to favor youth since they are uniformly linked to speed.) New skills can and should be acquired.Old workers are not less productive. There is virtually no relationship between age and job performance. Older workers are in some ways better than younger because aging brings moreprudence and will to avoid an error.Loneliness is not more likely amongst the elderly, even if old friends are incapacitated or passed on. As the great Jewish rabbi David Volpe puts it, change involves loss but in loss, there is an opportunity for the new, and this observation applies to the aging as well as the younger.Creativity does not decline with age.Exercise, highly correlated with a fundamental good, to wit: health, need not decline with aging and need not usually fall below prudent levels.

Of course, these truths are limited by accidents, and diseases, together with uneducated or perverse wills, they apply to most of the relevant population.

Does each of these apply to age lawyers—aging lawyers of youth (65-75), more mature older lawyers (75-85), and lawyers who are ancient? You bet! (Even bet you ancient gold doubloons. They are still gold, and they will be gold for a while yet.)

Anne, the author, seems to be suggesting that those who are aging are best served by finding new things to do. She suggests quilt making. I like that idea for philosophical reasons, but my conception of best changes includes bricolage developments, and they are like “the previous” but will also include “the new,” so the old and the new will be stitched together somehow.

Lawyers can take over new things to do by developing new practice areas and thereby keep a bit of the old. Hard driving litigators advise clients on. . . . . In-house counsel take up defending juvenile misdemeanor and criminalcases. Criminal trial lawyers might become specialists in elder law.

Specialists in estates and trusts work to take up immigration problems. And so forth for pages and pages.

At the same time, not everything is to be recommended. Judging the article by the magazine’s cover, it looks like the ABA is promoting new careers for lawyers which I would not recommend. The mag is the 12/14 issue of ABA JOURNAL; the article is Lauren Etter’s piece “The Lawyers of Reality TV.” On the cover, the headline reads, “As reality shows proliferate, so do opportunities for lawyers working behind the scenes.” Give me a break. Truth is one thing; creative suggestions are another; bullshit is stilla third. Anything to publish the magazine.

Of course, some lawyers want to quit completely. And some of them have wanted to do so for years. This essay is not for them. But the two books I’ve recommended might be. One of them says that becoming a shop owner is rewarding and lots of baby boomers who are retiring are turned on by the idea and enjoying it.

Me? I’d first have to learn how to market stuff. I’ve never done that in my entire life. Legal work has always been handed to me. If I were to start a business after learning marketing, I think its focus would be strange teas, oddball antiques, and old books—all jumbled together somehow.

I also have a real liking for the study of art forgeries, but I can’t think of how to extend that passion. Analogously, old people are not born counterfeiters.

Legal Malpractice–Proving Damages In Big Cases–Expert Testimony

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

2630 Exposition Blvd. Suite 115

Austin, TX 78703

Phone: (512) 296-2594

Facsimile: (512) 344-9466

mquinn@msqlaw.com

(Resumes on
Website:

www.michaelseanquinn.com)

Complex Oil Well Deals—High Prestige Texas Law Firm
Errs

Several
companies were involved in oil & gas interest acquisitions and ultimately
drilling. The deals were
substantial—1000s of acres, for example. Things didn’t go well for various reasons and
property interests changed hands as the companies separated. In one of these transactions company A was to assign a set of interests, “‡”,
to company B.

There was an error, and the interests
were assigned to a subsidiary of B.
After additional difficulties, this time with the finance and economics of some
drilling, B attempted to transfer ‡
to Patriot Exploration, the plaintiff-appellee in this case. But it did not sign the revised and correct assignment,
perhaps because it couldn’t effectively do that, since it did not own the
property, its subsidiary did. (It looks
likek something has gone wrong with those companies.)

In the report of the case the problem
is called the “Title Gap.” Thompson & Knight LLP* v. Patriot
Exploration, LLC**, 444 SW3d 157 (Tex. App.—Dallas, 2014). Believe me! The
facts are much more detailed in the opinion than here, where I am just
“glancing” at the facts to illustrate a related but different point. [*Defendant
and Appellant. **Plaintiff and Appellee.]

The law firm that, as it were, made
the mistake, Thompson & Knight, an old, well known, renowned Dallas law
firm discovered its error, tried to correct it by drafting a correct assignment
document, but left the case because of the conflict of interest its error had
created between it and its client Patriot.
T & K settled in part with Patriot, but not totally. (The court’s opinion does not say how the
partial settlement worked. I conjecture
it involved Patriot’s litigation and similar or related costs in getting the
error fixed.]

T & K Patriot had intended to
sell the assets involved, but the sale was 5 months after the date Patriot
wanted. It sold the asset for $5.5M±,
but claimed it lost $960T± as the result of T & K’s error. The firm stipulated it malpractice liability,
but asserted that its error did not cause Patriot damages, or, in any case,
that Patriot could not prove that it did.
Patriot prevailed in the District Court—the trial court—in a judge tried
case that concerned only damages.

The Court of Appeals, however,
reversed the lower court. The basis of the reversal was the court’s conclusion
that the expert testimony did not support the plaintiff’s claims, both as to (a)whether
the law firm’s error caused Patriot’s loss and as to (b) the amount of damages
to be awarded, if any.

The testimony of Patriot’s expert was
shot full of errors. Here are at least some of them. The expert testified

1. that the purchaser of the assert
would have paid substantially more when the sale was originally intended than
it paid 5 months later, but there was only 1 potentially purchaser, and it did
not concede that it would have paid more;

2. that he has a model for calculating
the correct prices but could not defend the model;

3. that the sale prices could be
analyzed with attending to the fact that Patriot acquired the assert at issue
in a complex of facts arising out of a lawsuit;

4. that he could predict reasonably what
the return of future production would be, though he did not really know this,
given the existing history of related production, e.g., drilling costs;

5. that he could accurately predict the relevant
revenue of the purchaser, and therefore what he would have paid, even though he
merely assumed how many wells would be drilled, when there was no evidence as
to what the number would be;

6. in such a way that he has assumed
that the oil and gas would be ready for market immediately upon production;

7. assuming that the price of the
petroleum to drilled could be calculated relying on price the spot market;

8. in such a way that his testimony was
inconsistent to that of a disinterested witness;

9. based upon as assumption this client,
Patriot , instructed him to make;

10.
and more.

This is a very long list of errors
for an expert witness to be charged with having committed. Moreover, the expert
would not have had to commit all these errors in order for his testimony to be
rejected.

Interestingly, courts around the
country are appearing to demand more and more out of expert witnesses appearing
for a plaintiff in legal malpractice cases, and other service based malpractice
cases as well. I have argued for a while
that (i) legal mal cases are very difficult to win, but that (ii) large cases
were still promising, partly because big cases are complex and multi-faceted so
more errors may get made. I’m right about (i), for sure, but given the
way courts are thinking about expert witnesses in legal mal cases today, I’m
not sure I’m right about (ii). Complexity
and complicatedness are multidimensional configurations. My
hesitancy arises from a very simple truth:
Complex events almost never result
from single and/or simple causes. (The principle applies to non-occurrence
events as well as overt events.) Complex causes involving complicated human
behavior(s) and dependent economics–and not just like causes like physical
defects–are very difficult for reliable expert testimony. This case is a
paradigm of complicated behaviors, complex results, and economic/financial
results.

It is easy to see why expert
witnessing for the defendant is easier than doing it for the plaintiff. All the defense expert must do is to
undermine the theories of the plaintiff’s expert. To some extent and under some circumstances
the work of the expert witness for a plaintiff is more interesting than that of
the defense expert. S/he may really do
the inventive and creative work. Then
again, consider what happened to the plaintiff’s expert witness in this case.

I am not suggesting that I think the
court of appeals is wrong in its observations in this case. The testimony of the plaintiff’s expert was a
disaster; at least it looks like it. Maybe I’m wrong. Maybe the Texas Supreme Court will reverse
the court of appeals and uphold the trial judge. I doubt it.
See my blog dated November 18, 2014 entitled “Expert Witnesses &
Judicial Epistemology.” It is about
another very recent legal mal case decided by the Texas Supreme Court regarding
the evaluation of damages, and the expert testimony in that case is not nearly
so bad as it is in this case.

Anthony T. Kronman, THE LOST LAWYER–Yesterday and Today

Kronman’s
Ideal Lawyer:
Lawyer-Statesman
First Essay

Michael Sean Quinn(See the end for more)

Nota bene: There will be updates, e.g., one on 1/23/15,

How should the very best lawyers be
conceived? What is the essence of the
legal profession at its highest level of excellence and depth? What sorts of attorneys—a term that is a total synonym
for the term “lawyers”–should be regarded not merely as lawyers worthy of some
respect but worthy profound respect, deference, idealization, and, indeed,
idolatry, if it were not a dangerous character defect in those who idolize (and even
what some of us would regard as a sin)?

The
Lost Lawyer

What was required of the ideal lawyer in times past, according to the
distinguished Anthony T. Kronman,*–lawyer,
professor and philosopher of the law,**–is
that one be a “lawyer-statesman.” One of the character traits that is required of such a person—in the past a
“him,” for certain—is civic-mindedness.
It is also to at least hint and
influence his clients in the same direction.

(*The book is THE LOST LAWYER: FAILING
IDEALS OF THE LEGAL PROFESSION (Harvard U. Pr. 1993). The book was the focus of
the six (6) essays in the American Bar Association’s 2014 JOURNAL OF THE
PROFESSIONAL LAWYER (the JOURNAL). This
book is anything but egalitarian. **Dr. Kronman has a Ph.D. in philosophy from
Yale, where he also graduated from law school, still professes there and was its Dean
for a decade. In recent years, he has also taught some philosophy at NYU, both in New York and Florence.)

The lawyer-statesman will also possess
the character traits of profundity when it comes to deliberations and extraordinary talent when it comes to persuasion, and, of course; that includes advocacy. Both of these
must be broadly conceived, however.

Deliberation, for instance, has a very
broad scope. For one thing, it is defined by the
ideas of judgment aka intuitively sound judgment and
of practical
reason aka practical wisdom.* This set
of virtues always includes prudence. This person’s traits of character will also be
instinctively inclined toward the admiration of, if not a consistent commitment
to, social evolution as the soundest mode of legal, governmental, and societal
change. (The vocabulary comes from Aristotle and other classical
philosophers who thought about public life.)

Both superlative
deliberation and persuasiveness require profound attention not just to advising
clients as to preferable means to achieve their already specified ends but also
engaging with them in Socratic dialogue regarding their initial thoughts about
possible and preferred ends.

They also require
imagination, the pervasive and virtually automatic ability to do what is now
called, “think outside the box,” the possession of compassion, “detached
sympathy,” and even the same sort of empathy for a variety of points of view. The
“lawyer-statesman” must have a vision of legal problems that is a “bifocal
character.” (It seems that this might better
be called “multi-focal character.”)

One of the book’s
chapters is entitled “The Good Lawyer.” In substantial part, it “privatizes”
the idea of the lawyer-statesman. In
other words, it applies those ideas to
lawyers who mainly represent actual human people and business entity persons,
but who are not particularly citizen-active in any public sense. They may be
civic-minded, however, by having the character traits of the lawyer-statement
and applying them to private matters.

Kronman probably does not draw a
distinction between lawyer-statesmanship, qua legal professional and
excellent-lawyering. Excellent lawyers are always attuned to public norms when
deliberating with their clients, even if they are not public entities or
entities trying to affect public policy directly.

The good lawyer, i.e., really good lawyers, in Professor Kronman’s
conceptualization, will have all the traits of character and associated skills
that the lawyer-statesman has. On
Kronman’s view a

“narrow view [of lawyer excellence] insists that a lawyer is merely a specialized tool for effecting his client’s desires. It
assumes that the client comes to his lawyer with a fixed object in mind. The client then has two, and only two,
responsibilities: first, to supply his client with information concerning the
legal consequences of his actions, and second, to implement whatever decision
the client makes, so long as it is lawful. The client, by contrast, does
all the real deliberating. He decides what the goal shall be, and whether it is
worth pursuing given legal costs his lawyer
has identified.”

Of course, Kronman rejects this view;
consequently, since they are unity, if the category of a lawyer statesman is lost as an ideal, the more privatized one will be lost as well.
There is nothing the good lawyer has that the lawyer-statesmen does not have, with one exception. As conceived by the now standard but narrow
view that exception is this:

“The [good] lawyer’s expert knowledge of the law is thus above all else a
knowledge of judicial behavior, of what judges are likely to do when called
upon to say how the law should be applied. . . . [E]very lawyer, regardless of
field, needs to understand the behavior of judges.
. . . [I]t is the core of their common
professional expertise [¶] But precisely what sort of knowledge is this? On the
narrow view, it may be likened to the farmer’s knowledge of the weather [,
according to the narrow—today’s standard view].”

But
that’s not correct, Kronman says. The
narrow view conceives lawyers understanding judicial behavior—usually judicial reasoning—as something like detective
work. This
is the wrong analogy. It should be thought of as the “equivalent of
anthropological field work; indeed, it is
such work in a concentrated form [when the research is done using cases,
the way it is done in law school].” Moreover, based upon its analog, the lawyer-statesman view, the lawyer
is “in bed” with the client. That lawyer
uses “detached sympathy,” including “creative imagination” to place him/herself
in clients’ “shoes,” as it were.

The good lawyer–the really excellent lawyer–on this conceptualization
becomes a true friend, as
conceived by Aristotle, of the client. That lawyer must think, to some extent,
like an excellent judge. That lawyer
becomes a “connoisseur of the law” and, of course, like any other connoisseur; the activity will include intense
enjoyment, delight, amplified pleasure, and a sense of taste. Connoisseurs of
the law love the law, deep lawyering, and excellence in judicial reasoning. One
cannot be in this state without being civic-minded.

Moreover, one cannot be a lover of the
law in the Anglo-American tradition without having a conservative streak, at
least. There are too many conflicting yet stable and important principles. Too
many reasonable decisions hinge on the facts of a
case and not on the mechanical application of an abstract principle.

A great deal more is to be found in THE LOST LAWYER. In “Part Two”
of this Essay, I will say a word or two about the criticisms to be found in the
ABA pseudo-festschrift, already mentioned, and in “Part Three,” I will set
forth some of my own explicit thoughts. (Of course, I may have set forth
my thoughts without realizing it.)

For now, I set forth only this further explicit idea. In thinking about Kronman’s
model of worthy lawyering, it must be remembered
that it must be thought of as a scale, not a cliff. He does not always seem to remember this,
although his real mentor, Aristotle knew and expressed it quite well. In doing this, one should keep in mind what
the central categories are:

·
Deep
deliberation,

·
Practical
reasoning excellence,

·
Intuition
based sound judgment,

·
Practical
wisdom,

·
Prudence (multidimensional prudence)

·
Detached
sympathy (the other person’s
perspective),

·
Civic-mindedness.

No one can doubt the importance of these attributes for
lawyers, and it is likely that if taken together and thought of as continuous
and as traits character, i.e., virtues, however they were acquired; they would be
sufficient conditions of truly extraordinary lawyer excellence.

Recent Criticism

The recent ABA papers to be found in the JOURNAL cited above are
uniformly critical of THE LOST LAWYER. Each of them politely says that it’s a
wonderful book well worth reading, but it is difficult to see why they make
this assertion with anything more that the appearance of fictional deference given
the themes and conclusions of their essays. Here are some of the central
remarks or implications found in the JOURNAL. Kronman is

1.
unrealistic,
out of touch with lawyering as it is now and has forever been,

2.
elitist
and therefore out of touch with the common lawyer-qua-commoner attending to
smaller cases that are really part of the needs of “real people,” as they say,

3.
a
victim of BigFirm idolatry,

4.
unable
to understand the need to socially reorganize the legal profession since many
lawyers, including BigFirm lawyers are victims of serious states of depression,
etc.,

5.
a
philosopher and not a real lawyer a real
lawyer,

6.
purely
an academic in a prestige fortress

7.
an
ideologue better understood in terms of feminist thinking and categories, using
the idea of the midwife as a metaphor or more generally conceived of in terms
of maieusis,

8.
the
victim of an ideology that has passed away,

9.
conceiving the idea of public service as an
ideal rather than a feature of lawyers seeking to become and remain a “profession,”
a recognition that comes from Twentieth Century sociology and not ancient Greek
philosophy,

10.
failing
to understand the extent to which an idea like lawyer-statesman is actually a
product of the exercise of power in society,

11.
overly
attached to what is now the primitive and widely replaced idea that the study
of reported cases is an should remain central to really contributive legal
education,
is
expounding an implausible abstract idea instead of realistic truth,

13.
advocating
an idea of law schools that is largely rejected,

14. out
of touch with technology and the diverse social revolutions (such as, out
sourcing) it has caused “even” for the legal profession, such as the use of
cyber tools to do a lot of traditional lawyer activities, and

15.
is
overly pessimistic about the future of the legal profession.

One
of the panel members in a largely incoherent essay, “observes” that young
up-and-coming lawyers are far ahead of Kronman’s primitive visions, and
illustrates this claim by stating that “[j]unior lawyers have no idea what a
Bates stamp is.”

When
these portraits and critiques are grouped together, they add up to this simple
idea: Kronman may be an impressive writer but he is wrong about virtually everything. . . , if not everything!

With
one exception, the essays of the panel, again, when taken together, add up to
one fundamental thing: they are unworthy since shallow. This is true even though Kronman’s ideas are
subject to significant qualifications.

My Views

I have three questions about Kronman’s marvelous, inspiring treatise. One concerns the nature of ideals. One concerns legal history. And one concerns the extent to which his views are really legal ethics as opposed metaphysics. My questions will be formulated as contractarian assertions. However, think of them as questions.

Ideals. A great many ideas can count as ideals. On one sense, the ideal lawyer is that person who is extraordinarily able at the practice of law, and this may not mean general practice. It can include specializations including ones that are arcane, e.g., patent work. There is no reason to believe that such a person must be involved in public affairs, much less is this a necessary truth. Indeed, such an ideal lawyer may not even like that sort of thing and might disdain all politicians of all sorts, as well as many of those who tend to be public servants. An ideal lawyer might spend all of his/her time in law libraries delving deeper and deeper into the applicable law. I even knew such a person once. He was not a happy man. People did not much like him. He did not warm to others without tremendous effort–something which could be sensed by the rest of us immediately. But, good lord, what a marvelous legal mind he had. He went everywhere as the “side kick” to his more extrovert and likable partner, but the clients always wanted to hear his view on means and ends alike, even if they found him annoying.

More significantly, the idea of an ideal for a group–in this case a profession–is ambiguous. This is true even if the concepts within an ideal are the same. To illustrate this point let’s use the concept built into Kronman’s idea, to wit: the lawyer-statesman. This ideal could be either (1) like the crescent moon, shining in the night sky and wonderful to look at, partly because of its fuzzy edge, but not something to which only most of us really want to go, or (2) like a high flying fast commercial jet upon which many of us would like to ride or fly ourselves. One of these ideals is abstract, distant, and beautiful; we’re glad its there. It enlightens the terrain, but we are not enlightened by it. A person who is idealized in this way by the members of a group of people, e.g., a professions, is like Churchill; we all think he’s wonderful, in some ways, a person who changed the world in some good ways, but his image does not shape the profession. Ordinary lawyers do not try to imitate–“become”–him. Lawyers are not imitations of him. We do not live and breath his presence in our thoughts, emotions, and imaginations.

Another sort of ideal is one which seeps into our collective being and out individual essences. We strive to be just like that person. Some of who watched the old “Law and Order” TV shows wanted to be the Sam Waterston character, Jack McCoy. Some of us wanted to be Clarence Darrow, not because of his politics and his ideological orientation–we might have disapproved of that–but because of his courtroom performance. The same can even true for the central character in TO KILL A MOCKING BIRD., Atticus Finch. True, Darrow opposed opposed oppression in various forms, and the lawyer in TO KILL opposed racism. But what mattered–or what can matter–is their cross examination and style of argument, not their idealism.

There is no reason to believe that the ideal of the lawyer-statesman was the essence- stimulating type of ideal for lawyers in the 19th Century and on into the 20th Century. Good lawyers, even great lawyers, were not necessary like that at all. The John Adams, Thomas Jefferson, John Marshall, and Abraham Lincoln types were very, very rare. People may have admired them and loved their politics–they political ideals–but they did not sprint after them as ideals. The stories lawyers remember about Adams, qua lawyer, was his defense of some unpopular Englishmen, and the stories remembered about Lincoln, qua lawyer, are his clever cross examinations, at least one of which hinged on deception. If they were idealized at all by the men–yes, men–of that age, it was as statesmen, not lawyers. (Justice Marshall may be an exception to that observation.)

The fact that lawyers from time immemorial have appeared to worship the ideal of the lawyer-statesman is not evidence that this ideal had control or even much influence over the profession. That which is said in graduation/commencement speeches is usually not accurate.

Of course, with out the truly inspiring role in the ideal of the lawyer-statesmen in the minds and hearts of the lawyers from the American Revolution until the end of World War I, the vision of Kronman is in trouble. This is not to say that the ideal of the lawyer-statesman is in any sense an unworthy ideal. The profession would be better off if it were an actually captivating goal. The image of a profession which looked like that is mesmerizing. It’s just not how it was then or ever has been. Cicero was not the only lawyer in the history of the Roman Republic.

The trouble is that if the ideal of the lawyer-statesman was not a controlling norm, then the deficiencies of the legal profession in our own day are not attributable to the decline of the influence of that ideal. In fact, in terms of performance, I am not convinced that the legal profession is much different than it has even been. It’s the contexts that have changed, not the functions of the profession nor the activity categories of lawyer. The lawyer that negotiates contracts regarding cyber related matters is still doing the same “old thing,” it’s just a new context. This happened when railroads were built, the auto industry sprang into existence, commercial aviation evolved, and so on, and on, and on again.

Legal History. Kronman’s central thesis is that for 200 years, or so, the American legal profession subscribed to the proposition that it is an essential part of the legal profession, correctly conceived, to being moral depth to the republic and its population. The idea of moral depth itself, is not exactly clear, but there is not really strong evidence that Thou shalt bring moral depth to the nation was a central feature of the ideological commitment of the legal profession.

(It is hard to see why lawyers having to learn topics other than “pure law,” e.g., “economics, statistics, political science, and philosophy for a start,” is hurting the profession. Litigators need to know statistics. Lawyers working on financial matters need to know something about economics, as must any lawyer-statesman. Lobbyists and lawyer-statesmen need to know something of political science. And all lawyers need to have a command of cyber and digital matters. Indeed, current ethical rules regulating lawyers required this.

It is repeatedly argued by all sorts of writers and commentators that massive commercialization of the contemporary BigFirm–with every one else scurrying along behind them–has ruined the profession, as it was once known. Certainly, the size of law firms has changed. The fact that some law firms are very large has not ruined–and it not ruining–anything. The fact that a law firm has a thousand lawyers in in all over the world is not destroying the profession as we have known it. When someone says or implies that a time in the past was actually a “golden age,” one should have doubts.

I was in big firms for a significant part of my legal professional life. They were not unhappy places. I was unhappy, but that had to do with me and my contempt for a range of things which are found in many large law firms. Commercialization had nothing to do with it. I loved that part of the law.

Moreover, lawyering and money have always been linked. John Adams, as he shaped the USA in the First Congress, looked back toward Boston, and lamented the fact that he was not there trying cases. Why? Partly for the money.

At a more general level one might hesitate over the idea that the first 140 years or so of the republic were more influenced by the Lawyer-Statesman Ideal. One does not really find it in the standard history of American law. Lawrence Friedman, HISTORY OF AMERICAN LAW (1973). One does not fine it in essays on American “legal culture(s).” Lawrence M. Friedman and Harry N. Scheiber, LEGAL CULTURE AND THE LEGAL PROFESSION (1996). And one finds it only here and there in the marvelous anthology THE NEW HIGH PRIESTS: Lawyers in the Post-Civil War America, edited by Gerald W. Gawalt (1984).

Perhaps the most interesting picture of the lawyer-statesman is in an essay by Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers.” pp. 51-74. One of Gordon’s central characters is James C. Carter, a paradigm of the lawyer-statesman. At the same time, however, Gordon quotes a passage from one of his speeches in which is reflects upon the ideal he has pursued and the discontent, unsatisfied desires, and emptiness he sometimes feels, and all of which he thinks arise from the tensions between the ideal and the actual.* (Gawalt himself in effect pictures the lawyer-statesman ideal as a kid of paradox. One the one hand the ideal lawyer is to go forth civic-mindedly and be the architect of a better America and then as a practitioner takes money for trying to undo that idea.) pp. 65-66. (*Elsewhere in his book Kronman argues that under the banner of the lawyer-statesman, a profession in the law can be regarded as a “calling” and hence a mode of embracing meaning into life. Carter’s speech is not encouraging. See my blog of 1/23/15)

These hesitancies should not be taken very seriously as a critique of the deeply significant general ideas. Just because something important did not have a universal or even wide spread deeply felt adoption during a period of history, even a “Golden Ages” does make it any the less a worthy ideal. It may even have been an ideal, though not a practice, during a significant period of the past–again, even a “Golden Age.” Ideals are made to motivate, to strive for, to chase after, create optimism (as well as its opposite), to create foundations for moral criticism, to worship (in a sense), to help avoid or limit more idolatrous goals, to entrance, to create a special kind of elite. They are dreams, worth having. It is clear from the Gordon essay that some lawyers of the late Nineteenth Century embraced this ideal, even if they also embraced the wrong political, social, and economic outlooks. In short, some elite classes are not such a bad thing.

Metaphysics of Personal Identity. One of the most profound themes of Kronman’s book has to do with the formation of personal identity or the construction of what one takes to be one’s essence. The idea of one’s work being the “place” one’s identity is to be found is a relatively new idea in human history. Indeed, this is a secular version of religion based metaphysics. The idea of the legal profession being wedded to moral depth makes the professional self-image that can, as it were, becomes one’s essence. This is also true if the legal profession is conceived of as requiring an excellence of character and a noble disposition. Once Kronman’s idealistic views are rejected, someone saying I AM A LAWYER THROUGH TO MY BONES AND ON INTO MY VERY SOUL is no longer particularly interesting. Indeed, if it is said with meaning intended which implies being higher than or being special or being deeper than or being better than or anything like any of these, the idea of finding a personal identity/essence though the profession of being an attorney is difficult to embrace.

So, I love all the ideas of this book. I love vision of the legal world found here. I have no question about the ideal of lawyer as “deliberator”+”deliberation leader” and about the conception of lawyering as having an art that requires taking case studies as central. This is the right ideal for what it is to be a really great lawyer-that and practice, practice, practice at the practice. And Kronman has pictured it almost perfectly. In addition his basic argument is well pitched [as in both baseball and sales] though it does not quite have perfect pitch [as in song and baseball].

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

1300 W. Lynn St.

Austin, Texas 78703

(o) 512-296-2594

mquinn@msqlaw.com

(Resumes at www.michaelseanquinn.com)

Insurance Claims Investigations and “The Reasonable”

REALLY UNREASONABLE CLAIMS INVESTIGATIONS = INSURER BAD FAITH

Insurance claims cannot be validly denied unless the denial is based upon a reasonable investigation. To do that is at least a paradigm of insurer error, and if the mistake is bad enough it will constitute insurer bad faith. These kinds of errors can lead to winnable lawsuits based upon the common law or upon a variety of statutes in every state. There can be not only actual damages but also punitive, or, exemplary, damages. Many are the reported cases from courts discussing these matter—“legion” is an exaggeration.

So, how many ways can an investigation by an insurer, or by someone the insurer has hired, be unreasonable? Let me count the ways.

Not done at all.Started late.Too long.Poor adjuster.Right questions not asked.Insufficient data collected. Important data not studied appropriately.Demanding an insured to provide the same information several times.Demanding an insured provide data when the insurer knows the insured cannot do it.Demanding an insured provide data when the insurer knows that the insured is unlikely to be able to do it.Demanding an insured provide data when the insurer does not really need it.Demanding data of a size or complexity when there is an easier way to obtain needed information. (If one mode of assigned-to-the-insured mode of investigation, A, is easier than another, B and equally reliable, then A is the more reasonable. Or A is reasonable while B is not.)Demanding an insured provide unnecessary data. Demanding data from the insured when the insured could collect that data much more easily than the insured can.Demanding that the insured engage in burdensome collection of data, where a smaller amount or group or assortment would be sufficient.Threatening the insured with claim denial, whether explicitly or impliedly, in connection with unnecessary work.

Notice that there are whole variety of ways that an investigation can be unreasonable: None enough of this or toomuch of that. Interestingly, an investigation can be defective for several opposite reasons all at once. Suppose a claim had two independent aspects. An insurer could not do enough on one, A, but the right amount on another, B. Or, a right about on A but too much on B. Starts late on A, but on time with B, but it’s A-lateness temporally retards the whole show. And so on.

Does this sound like it involves a lot of balancing? Well, it does. But balancing can require exactitude, or at least precision, under many circumstances. It must be remembered that built into all of this is the following proposition:

Except where there is a preconceived and intentional screw-job imposed on the insured, insurer negligence is a necessary condition for bad faith though not one that is sufficient.–MSQ

Also, it must be kept in mind that the word “negligence” does not entail a separate cause of action in tort. The word “negligence” does not really denote one single thing. In more common usage, the word “negligence” means careless, sloppy, stumbling around, forgetful, and/or inattentive. It is important to remember that all these can occur at once, or only a few of them together. It must also be remembered that some instance of negligence can amount to breach of contract.

Quinn Quotes

A balanced life is a good life and maybe the best kind of life. No single value can always do the needed work to make a life flourish.. There are two additional problems. alas. It is not easy to find what is balanced, and it is difficult to maintain balance without dedicated practice, and not even they succeed all the time, party because most of life’s tendencies tend to drift and change. The only values that are unassailable and permanent are love and beauty. Wisdom, if one has it, is often good thing, if one can recognize it.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

Login

Featured Book

The books shown are NOT affiliate links.
MSQ (site) does not receive any compensation for books listed or sold.
Books are shown for the reader's convenience only.

Expert Witness–Testing for Legal Sufficiency

BitTorrent

On the Rhetoric of the Ridiculous

“Madam. Are you certain today?” [Sketch I]

The Insurance Appraisal Process–Part I

Cyber-Insurance & “Established Insurance” Compared–PART #2

Cyber-Insurance aka E-Commerce Insurance–Part #1

The Prudent Expert Witness: Agreements and Performance, #1

Creations and Insertions into Existing Contracts Part II

Lawyers, Election Law, Jurisprudence, and Proper Governance

Can Opposing Counsel Manipulate a Liability Insurer Where Crime Is Involved?

Lawyers and the Aging Process

Legal Malpractice–Proving Damages In Big Cases–Expert Testimony

Anthony T. Kronman, THE LOST LAWYER–Yesterday and Today

Insurance Claims Investigations and “The Reasonable”

Quinn Quotes

Login

Featured Book

Lawyering for the Railroad

Book Genres

Recent Comments

Quinn Quotes

Login

Featured Book

Book Genres

Recent Comments

Newsletter