September 9, 2021
Seasons of Change
COVID-19 is teaching us many lessons; will we listen?
Originally published in The CLM Magazine‘s September Issue
Whether your preferred end-of-summer pop-culture reference is Danny Zuko and Sandy Olsson pining for each other at opposite ends of Rydell High, Frances “Baby” Houseman being hoisted into the air, or the sound of the “60 Minutes” clock signaling that it’s Sunday night, and, in a few hours, it will be time for school, it’s always the same story: Summer has to end.
When COVID-19 hit, our profession adapted. It is incredible how quickly we became accustomed to the changes—no work-related travel, no in-person depositions; trials indefinitely in limbo. All of these things were instantly replaced with Zoom mediations and virtual court hearings. Overnight, we were thrown into a new way of doing things without warning or preparation. Yet we have come out ahead, responding to the recent cost-savings trends with enthusiasm and developing command over new mediums and procedures.
Despite all of the tragedy surrounding the pandemic, it has given lawyers and insurers alike a once-in-a-lifetime opportunity to question the standard practices of litigation. Will we turn back into pumpkins when the clock strikes midnight, or will we, as a legal community, actually apply some of the cost savings and risk management techniques that we were forced to put in place over the past 18 months and counting? How will we advise clients on trial strategy? Will we finally be honest that the defense model of billing clients by the hour doesn’t necessarily correlate with either great or necessary legal work?
In other words, what happens when our summer ends?
History Repeats Itself (Until it Doesn’t)
A recurring theme in defense litigation practice is making judgments based on past experiences. As attorneys, we advise our clients on the potential outcome, settlement range, or verdict potential based primarily on what happened before. But shouldn’t we be adding the standard investor disclaimer: “Past results do not guarantee future outcomes”? How does this apply in the post-pandemic world?
The lesson is simple: Be wary of past anecdotal evidence or experience. While what we’ve learned in the years or decades of legal practice is essential and valuable, it should not be treated as sacred gospel. And if we’re honest with ourselves and our clients, how often are we wrong? How often have we forced an issue with opposing counsel, then tried to bully our way out of it through the standard scorched earth defense tactics, only to be brushed back by a terse judge, a frustrated client, or an inflated settlement or verdict?
We are not suggesting an abandonment of what brought us to this profession in the first place—the ambition, the drive; the competitive spirit. We want our clients to win. We want to win. Those principles should remain constant. What we should examine more closely, however, is what is the best way to win, and, perhaps more importantly, what does it mean to win?
Re-examining the way in which we do things doesn’t necessarily lead to the conclusion that we need to do things differently. Sometimes a second look emboldens our original thoughts or practices, and sometimes it leads you to think a bit more creatively and take a different approach. But it is always essential to stop, think, and ask: Is the work I’m doing benefiting the case? Lawyers can sometimes do things because it’s the way they have always done something, or, worse, “the way everyone does it.” Remind yourself to always ask the following: Is this the best approach? Is this the most intelligent move? Could I do this differently? Am I working effectively and efficiently?
Sending a Message
In 1947, a young Foreign Service officer sat down to write out his frustrations with the U.S. government’s response to Soviet expansion across Eastern Europe. Despite his relative youth (he was in his early 40s), he felt compelled to air his grievances to the public in the hopes of turning the tide on U.S. foreign policy. He signed the article “X” because his employment with the government required anonymity, and he was not espousing official U.S. policy. This magazine piece became known as the “X Article,” and it changed the course of history.
George Kennan argued that the U.S. needed to engage the Soviets in something called “containment.” In other words, the focus should not be the obliteration of the Soviet Union; rather, the focus should instead be on containing Soviet expansion to its sphere of influence in Russia and Eastern Europe. In some form or fashion, over the next five decades, “containment” became U.S. policy. Right or wrong, the “X Article” and George Kennan changed the way people thought about the Soviets, and it directly impacted what kind of message the U.S. would send to its friends and foes abroad in the decades that followed.
So what does a 74-year-old article about a country that no longer exists (sort of) have to do with how we practice law and defend clients? When you set out to send a message, there are consequences. Kennan wanted to send a message to his superiors in the State Department and the upper echelons of power in the country, and it worked. The message was received. But there were consequences to that message. Without weighing in on whether or not the policy of containment against the Soviet Union was advisable, his message was received, and policy choices were made.
Now let us examine our own professional lives through this lens. You are sitting with a client; you’re offering an analysis of a case, maybe one that you know should settle. But the client or the insurer yells back—or perhaps “enthusiastically explains”—that this case has no value and that as a group we need to send a message.
But send a message to whom, exactly? Is there a secret weekly meeting of prospective plaintiffs and plaintiffs’ attorneys in some secret, undisclosed location where they are discussing settlements and saying, “Oh man, we better not sue, these guys mean business”?
No, this does not happen. Maybe there are few select industries where word-of-mouth settlement information or outcomes cause a litigation fever—akin to the mad dash of frustrated Bedford Falls residents demanding their money from a young George Bailey in “It’s a Wonderful Life.” But does it happen? And if it does, how often? Moreover, should we be basing our legal defense strategy on the premise that we need to send a message?
We have to resist the urge to engage in message sending. In any given case, our goal is to represent our clients’ best interests in that specific case. Yes, there may be some instances where we must consider policy and long-range planning. We must also be mindful that the purpose of the insurer is to mitigate risk exposure. But when we get into ego battles about sending messages to the other side, we lose sight of the immediate objectives.
A War That Never Comes
A bit more Cold War history: If you’ve ever traveled to parts of Eastern or Southern Europe, you may have noticed, dotted across the landscapes, abandoned pillboxes, bunkers, and military fortifications all in that recognizable Soviet brutalist style. These 20th-century relics are the remnants of a war that never came. Anticipating a major ground war with the West in Europe, the Soviets and their satellite states spent decades building these fortifications across the continent—all in anticipation of the next great conflict. But it never happened. Instead, the Berlin Wall eventually came down, the Evil Empire broke up, and the world moved on. So, once again, what does this have to do with our daily litigation lives?
Without launching into a dissertation about the root causes of the collapse of the Soviet Union, the point is simple: How much of our time over the years has been spent preparing for a “war” that never came? Of course, we all know the overwhelming number of cases never make it to trial. Yet how many times do you hear lawyers (these authors included) puffing their chests and telling trial war stories? Or how many times have our clients, in exasperation of an intransigent plaintiff, said into the phone, “Fine! Tell them we’ll see them at trial.” This messianic complex can be overwhelming.
To steal a line from that obscure 1990s weight-loss guru Susan Powter, it’s time to “stop the insanity.” How much of our practice consists of driving up those litigation costs and grinding out those billable hours preparing for a trial we know is either never going to happen or makes little-to-no economic sense for our clients? Can we stop ourselves? Can we talk with our clients and stop pontificating about the allure of trials?
Sometimes going to trial makes sense. If the opposing party is unreasonable or has insane expectations, a trial is often the only recourse. Likewise, the eve of trial is often the only time the parties can be honest with themselves about what is at stake. But that is, in and of itself, a very big problem. So why does it take a trial for the parties to take a breath and look at themselves, their clients, and the other side and ask, “What the hell are we doing?” Is that the best way to engage in strategic risk management?
We’re not admonishing trial as a fundamental right of our judicial system. What we’re saying is, in the business of defending clients and insurers, as a general rule, in our experience, a trial is seldom the answer. Too often, it winds up being a battle of egos with neither side gaining much of anything.
Regardless of whatever fits and spurts might be left in the pandemic (and there seem to be plenty), there is no dispute that the summer is over. So it’s a good time to ask, “What did we learn? What can we do differently? Is it time to rethink the basic ‘grind the hours’ model? Is a trial really in the best interests of the clients and the insurers?” The “60 Minutes” clock is ticking on our antiquated approach. We’ve had a long summer to think these issues through and ask ourselves some honest questions. Finally, it is time to confront the future and meet the challenges of what comes next.
Most of us do not come up with a perfect scorecard. Identifying the room for improvement can be challenging, but the opportunities for growth and positive change in this profession are endless. There is no one-size-fits-all response to any of the issues we’ve raised. Instead, this is an invitation to rethink how we do things, do better, be better, and provide better service to our clients. It is time to do things better. The only question remaining is “What are we going to do?”
August 3, 2021
FWY is pleased to announce that partner Lori Wirkus is presenting IN PERSON at the 2021 CLM Annual Conference in Atlanta (August 11-13). Her session is called, “So Many Options! Taking Medicare’s Future Interests into Account.”
Participants will learn all of the options available to make sure Medicare’s future interests have been taken into consideration when settling medical care related to and associated with a work comp claim. The discussion will include self-allocations, physician opinions on future costs, professional future medical costs projections, Medicare set asides, and MSA legal opinions.
Check out the whole event here.
About the CLM Conference
The CLM Annual Conference is the premier annual event for professionals in the claims and litigation management industries. The Conference is a tremendous mix of interactive educational sessions and fun networking events. Participants can select from more than 100 collaborative educational sessions focused on all facets of the industry. Premier Panels feature some of the top minds in the industry. The CLM Professional of the Year awards are presented, and attendees can participate in a fun run, golf scramble, round robin tennis tournament and community service events.
July 20, 2021
Congratulations to Lori and Matt for having their very thought provoking article published in The Claims and Litigation Management Alliance‘s Magazine’s July Issue.
Originally published in The CLM Alliance Magazine
A client has hired you to offer sound, legal advice; to represent him zealously. Naturally, as an esteemed lawyer, you rely upon your years of experience, historical judgment, and legal acumen. The client is looking for guidance or even assurances. Your legal muscle memory kicks into action, and you approach the problem the way you have time and time again throughout your career. But even if your approach to solving legal problems is successful, is it correct? Are you offering the proper guidance? Ask yourself, do you take enough time to examine whether you should employ a different approach?
The reality is that lawyers and insurance professionals make bad decisions every day as a result of cognitive biases. We have all seen it: the overwhelming predisposition to assume all plaintiffs are faking or exaggerating their injuries, the “high fives” we give each other when we catch someone in a lie during a deposition, and we predict that a prospective jury will see right through a plaintiff’s charade. But maybe it is time to take a hard look at what we’re telling clients and ask ourselves, “Are we getting it wrong?”
Let’s look at several assumption-based mistakes we make when advising defense clients.
Assumption 1: You are competent to make statistical predictions. You are defending a personal injury case. You have read the complaint, reviewed the medical records, and familiarized yourself with the allegations and the law. You know your case. Now it is time to crank out that initial case report.
It is a time consuming, yet worthwhile, exercise for you and the client as you are forced—perhaps for the first time—to think through the strategy of your case. Then you hit the section where the client asks for assurances, calling on you to predict the outcome. You understand what the client wants, but your palms still get a little sweaty because you know, deep down, you cannot do that. But you push those feelings to the side, you call upon all of your experience and training, and you start writing down some numbers. “If we try this case 10 times, we are likely to get a defense verdict seven out of 10 times.”
At this point, you should look up from your keyboard and scream. Seven out of 10 times? What legal statistics class did you take in law school? What lawyer has ever tried the same case 10 times? Why is that the benchmark? Is that the same thing as having a 70% chance of winning? Where are you getting these numbers? What does your data tell you?
You are not a statistician. This isn’t “Moneyball,” so stop making these kinds of predictions. And if you are making these predictions and you are consistently right, then you’ve made the wrong career choice; you should be buying a one-way ticket to Vegas.
Recommendation: Stop with the statistical predictions when you are doing nothing more than guesswork. It’s great to review and analyze data when you have it, but few areas of the law have any actual substantive data from which you can extrapolate useful predictive measures (criminal convictions and medical malpractice verdicts are some of the more common exceptions).
You are there to tell clients what could happen. When it gets into the realm of what “will” happen, unless you have solid data supporting your position or a secret crystal ball that accurately predicts the future, you are just guessing. And your client will, in turn, be making serious financial decisions based on nothing more than speculation, conjecture, and surmise. Defense counsel eviscerates plaintiffs when they do this; why should offering advice to your clients and their insurers be any different?
Assumption 2: Once you form an opinion, you have to stick to it. One of the occupational hazards of the defense lawyer is the reluctance (and, in some cases, our clients’ reluctance) to revisit and revise opinions and judgments about a case. Situations change, and game plans need to be revised. Lawyers, insurers, and defendants cannot afford to maintain stagnant, biased thinking. If you are to gain any kind of strategic leverage in litigation, you must have the courage to look at cases and risk management issues as they are, and not through the lens of wishful thinking.
Recommendation: Maintain your flexibility, reevaluate your positions, embrace uncertainty, and be honest about it with your clients. In defense litigation, it is necessary to review and revise (continuously) your opinions to ensure they accurately reflect the current state of the case.
Assumption 3: You are making unbiased evaluations about the strengths and weaknesses of the case. Irving Janis, the long-deceased Yale psychologist, published his book “Groupthink” in 1973. The premise was simple: A collection of like-minded individuals from the same backgrounds and with the same internal biases were prone to specific errors of collective thinking. Simply stated, the concept of groupthink runs rampant in the legal industry. Everyone has internal cognitive biases. These biases can, in some instances, be used for strategic advantage. In most cases, however, they may just sow the seeds of destruction (at least in a professional sense)—particularly when we are telling defense clients what they want to hear and not what they need to hear.
Think about the concept of groupthink in the context of jury selection. Jury selection is one of the sexier aspects of litigation. Voir dire is like sitting at the cool kids’ table in high school, where you are empowered to make judgments about others: to make split-second decisions about the meaning of where people live, what they do for a living, what they wear, how they voted, and how they responded to your questions (which are specifically designed to trip them up, if we’re being honest).
This is when our own cognitive biases run amok. We rely on our defense mindset, which is reinforced in the huddle meetings we have with our clients and the insurers. We rely on anecdotal evidence and snap judgments—some of which may be accurate; some of which are dangerously wrong. And we are scared to admit the significant role that both luck and timing play in one’s professional success (and failure).
Recommendation: Be wary of groupthink. In our experience, claims professionals, in-house counsel, and lawyers as a collective group are prone to certain like-minded cognitive biases. We are not suggesting everyone needs to be a professional behavioral psychologist, but, instead, keep an eye on these internal tendencies within yourself and your clients, because when groupthink invades risk analysis, it can be dangerous.
As counselors, we must all allow our thinking to evolve, and we need to encourage our clients to be open to this case-analysis evolution. Doing things the way we have always done them is not good enough. The months ahead are a call to creativity. There is no need to throw out our years of experience, successful strategies, and winning tactics, but we need to be mindful not to fall into the trap of a “this is the way it’s always been done” attitude and, instead, to foster new approaches and adapt to win.
Matt Cianflone Accepted to Executive Master’s Program at the London School of Economics and Political Science
June 17, 2021
We are pleased to announce that Partner Matt Cianflone was recently accepted to an Executive Master’s program at the London School of Economics and Political Science (LSE). Designed for professionals and executives who continue to work full time, Matt will be embarking to London to study at LSE for several weeks at a time over the next two years, where he will be pursuing a Master’s degree in Health Economics, Policy and Management. As co-chair of FWY’s Medicare Compliance Group, Matt hopes to gain additional expertise in these areas, with an additional focus on Medicare solvency issues in the U.S. health care system. Best of Luck!
June 16, 2021
Kathleen Reagan has been invited to speak at the Racing and Gaming Conference in Saratoga. As a panel member at the event, which will take place August 16-17, 2021, she will speak on the topic of advising horse syndicates.
Kathleen is no stranger to all things Equine. As a former assistant district attorney for Plymouth County, MA, she offers a full range of legal services relating to equine law. She also offers expert equine consulting services and is a co-founder and vice president of QueryHorse LLC , the popular horse information resource Website. In addition, she teaches the only on-line Equine law class through Concord Law School.
We have no doubt it will be a compelling discussion.
About the Racing & Gaming Conference at Saratoga:
The Racing & Gaming Conference at Saratoga is an intensive, premier forum for industry decision-makers, stakeholders, and racing and gaming patrons to analyze trends in all sectors – both in New York and nationally – as well as to discuss critical issues and to share ideas. Befitting its importance, the RGCS is held at the historic Saratoga Race Course in Saratoga Springs, NY.
June 11, 2021
In the 1930’s chemists at DuPont accidentally discovered a combination of carbon molecules which ultimately led to the creation of Teflon and Scotchgard. These manmade polymers have since been used in literally millions of products sold throughout the world, due to their ability to repel water and oil and resist heat. These substances have been known as “C8” (a reference to the chain of eight carbon atoms which forms their molecular structure) and are also known as the “forever chemicals” due to the fact that they do not degrade over time.
Technically speaking, these chemicals are known as per- and polyfluoroalkyl and are generally described as “PFAS”, “PFOS”, and/or “PFOA”, amongst other acronyms which are used to describe what is now understood to be nearly ten-thousand variations of the C8 structure.
Despite their near miraculous ability to repel oils and waters and resist heat, DuPont/3M soon learned that these forever chemicals cause a number of medical conditions, which they learned through testing of their own workers. Animal studies demonstrated that exposure to these chemicals cause a number of the same medical conditions, including testicular and kidney cancer. Despite knowing this, DuPont and 3M for decades continued to use the forever chemicals in their products and continued to provide PFAS textiles to other manufacturers who use these materials in their products.
Many of these facts became known to the public as a result of a lawsuit which arose out of groundwater and drinking contamination cause by a DuPont PFAS production plant in Parkersburg, West Virginia. THs litigation, which took ore than twenty-years to resolve, became the subject of the best-selling book Exposure, written by Rob Bilott, the attorney who represented the residents of Parkersburg who were affected by DuPont’s PFAS exposure through their contaminated water supply, and the movie 2019 Dark Waters which starred Mark Ruffalo, as Attorney Bilott.
After three case arising from this lawsuit were tried to three verdicts, each of which resulted in multiple million dollar awards against DuPont, DuPont ultimately agreed to pay $70 million and also agreed to pay for medical monitoring for the residents it had poisoned. Hundreds of additional lawsuits have been filed across the country, a number of which are consolidated in a multi-district litigation pending in the federal court in South Carolina. It is also noteworthy that during the course of the Parkersburg, WV litigation, DuPont agreed to be bound by the findings of a panel of three of the nation’s leading epidemiologists concerning whether or not PFAS, more likely than not, was causing the conditions from which the affected residents were suffering. That panel became known as the “C8 Science Panel” and, after several years of research, including an epidemiological study based on testing of a large majority of the affected residents, the Panel ultimately concluded that exposure to PFAS, more likely than not, causes six medical conditions including diagnosed high cholesterol, ulcerative colitis, thyroid disease, testicular cancer, kidney cancer, and pregnancy-induced hypertension. These findings have been published ad can easily be found at the Science Panel Website. http://www.c8sciencepanel.org/
Determining the origins or causes of PFAS exposure can be challenging to navigate. If you or a loved one have developed a medical condition, including cancers of the internal organs, which you believe may have been caused by exposures to PFAS you should consider consulting with an attorney who is knowledgeable on this subject to determine whether you may have a meritorious claim.
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May 10, 2021
FWY is excited to introduce the newest member of their team – Kathleen A. Reagan, Esq.
Kathleen comes to us with over 30 years of litigation experience. A graduate of Tulane Law School, her background includes a full range of legal services including family law, equine law and Second Amendment issues. As the former district attorney for Plymouth County, MA, Kathleen brings excellent skills and knowledge to the FWY team.
We are happy to have her and look forward to seeing the firm thrive with her as an addition. Check out Kathleen’s full bio here.
May 5, 2021
While working as a part-time lobsterman in the Gulf of Maine (off the coast of Cape Ann, MA), FWY’s client suffered a serious thumb injury when his hand became entangled in the boat’s lobster pot lines. Emergency surgery could not save the thumb, and it had to be amputated, and the client ultimately underwent a surgery during which his big toe was removed and reattached to his hand in order to take the place of the amputated thumb. The client tried on his own to negotiate a fair settlement with the boat owner’s insurer.
Read more about the case here.
April 8, 2021
Those who work at sea are often forced to work in historically dangerous conditions. Fortunately there is recourse for any fisherman who is required to work in unsafe conditions, though many are not aware of these rights.
In short, the Seaman’s Protection Act 46 U.S.C. §2114 (SPA) enacted by Congress in 1984 protects a seaman from a variety of dangerous workplace activities and vessel owner practices. Seamen, including fishermen, who are required to work in unsafe conditions have the right to refuse to do so and also to report, for instance, safety violations, to the federal government, primarily either the United States Coast Guard or the Occupational Safety and Health Administration (OSHA). Doing so, as well as many other activities a fisherman might employee to protect him- or herself, are considered protected activities under the Act.
The Act also provides that vessel owners cannot retaliate wrongfully against fishermen for exercising these rights. If they do, they are subject to a number of penalties, including having to pay the fisherman’s legal fee and costs and, in certain circumstances, will be ordered to pay punitive damages. Check out this report in “WorkBoat” that demonstrates what happens when the SPA is enforced.
March 31, 2021
FWY’s client, a 24-year old resident of Scituate, MA, was a late night passenger in a hired vehicle. On the way to dropping the client off at his house, the driver blew through a stop sign at an intersection with a major thoroughfare, and ran into the side of a garbage truck which was being operated lawfully through the intersection. The client’s right leg was fractured in several places, most notably his tibia, fibula, and femur.
He was hospitalized for several weeks and then was forced to undergo a series of surgeries including fixation of the broken bones, skin grafting, wound debridements, and several periods of agonizing physical therapy. Now left with gruesome scars and a permanent limp, the client will never be capable of working in the types of physically demanding jobs for which he had been otherwise qualified.
Read the full outcome of the events that followed here.