If you have spent any time at all making your living in the field of personal injury, you have all seen it happen all too often. One or both sides in a personal injury dispute is seemingly entrenched in an untenable position. I have seen this from every perspective:
A plaintiff attorney who simply will not give any credence to the causation hole in his chain of proof. The “my client had a surgery and a jury will pay him full value, damn it” approach.
The claims adjuster who hangs their hat on one fact or medical history and seems to take the claim as a personal affront. The holy crusader, “all claimants are fraudulent” approach.
The defense attorney who scored valuable points at the plaintiff’s EBT and can’t wait to unveil the true nature of this plaintiff to the jury. The “I’ll use this series of insignificant lies to sway the jury” approach.
Ok, I’ve oversimplified just a bit for dramatic purpose, but we’ve all been there in some form or other. I know, because I’ve been guilty of some of this myself. Fortunately, as a claims professional, I’ve been lucky enough to have a good defense attorney bail me out, most (but not all) of the time. As a young attorney when I found myself too far over my skies, I would either be “schooled” by my more seasoned opponents or helped out of a jam by a colleague or mentor (thank you all).
What I have learned through all this is simple, but remarkably difficult to apply in our day to day struggles to succeed. In the highly volatile world of claims and litigation of bodily injury cases, it is most important to understand and give some credence to every position and perspective. Just because you see the facts or the law one way, does not make it so.
We humans, even those with JD’s attached to their names, tend to reach conclusions and opinions that we would prefer to be true. This is why, as a NY Mets fan, I have renewed faith every single spring, despite all the mountains of evidence to the contrary staring me in the face. My preferred opinion, which I hold out as Expert, allows me to argue in all sincerity, that my team has a very good chance to win it all and I will argue that point until the actual outcomes prove me wrong, once again.
My preferred expert opinion is fine, if we are debating baseball, but potentially disastrous if I’m using the same approach on a million-dollar bodily injury defense. In litigation, I had better pay attention to all the evidence and most importantly, in an unbiased manner.
Unfortunately, if we allow our egos to take control of our reasoning process, our negotiating positions and strategy becomes less flexible. Our priorities become warped. We seek approval from our clients, our bosses, our colleagues and ourselves. We need to be right. Our business lives depend upon it, or so we think!
Claims representatives fear that their reserves can’t be re-adjusted that high, attorneys fear that their clients will not understand the re-assessment and move the case to another attorney, they fear that they will be perceived as weak or ineffective a change of course is necessary. I have seen all of this take place and I will tell you that this ego driven approach to self-preservation actually acts counter to that very interest, both personally and within a business setting.
There are a number of “war stories” that I can relate to you and maybe I will down the road if there’s any interest, that will illustrate the folly that can result when one attacks a case with “preferred” blinders in place. For now, however, I would just like to suggest some rather uncomplicated ways in which you can protect yourself from “drinking your own Kool-Aid” and falling victim to your own ego.
1. Be prepared and informed. You were taught as a child to look both ways before you cross the street. Look at what the other side is advancing and take it seriously. Also, make sure you have looked at everything, even the things you don’t know you need to look at. Seriously. I am a big believer in specialization and this approach to this industry has served me well many times over. If you are advancing a causation defense or are faced with one as a plaintiff, if possible, make sure you have someone outside your inner circle, take a hard look at the medicals. Knowledge is strength in this business.
2. Utilize Alternative Dispute Resolution often. Even if a mediation does not resolve your case, it will expose both sides to each other’s perspectives in a professional and calm manner, allows you the benefit of the neutral’s opinion and equally as important, exposes your clients and the carrier to these perspectives. Also, you can use the mediation to set parameters for a binding hi/lo arbitration in a controlled setting. Obviously, binding arbitration, brings you speedy, less expensive and protected resolution, which is after all, what we are all looking for. Given the nature of world circumstances today, binding arbitration should be used more actively.
3. Listen, with an open mind. I once had an adversary yell at me that he was never wrong. Well, he was wrong, and a judge eventually told him so, but it didn’t have to go that far. Sometimes the other guy is right or at least has a perspective that you should be cognizant of. Remember –
"Most people do not listen with the intent to understand; they listen with the intent to reply." --Stephen R. Covey, and
"We have two ears and one tongue so that we would listen more and talk less." –Diogenes, and finally
"Most of the successful people I've known are the ones who do more listening than talking." --Bernard Baruch
Look, listen and learn and don’t be the subject of a Tennyson poem.