There is an old saying in the game of pool: When you miss a shot, “do not blame it on the cue.” But as any serious pool player knows, the best shot is often not the easiest shot to make. Instead, it is the shot that, once made, best positions your ball for the next shot. Following this well-accepted logic (at least in pool), the blame for missing a shot lies neither on your skill at making a shot nor on the cue. It lies on the failure of your previous shot to accomplish its dual goals: (a) make the shot (and thus, earn the right to take another one), and (b) optimally position the ball to make the next one
This analogy aptly illustrates the currently-dysfunctional approach to defending innocent parties in a public transportation-related lawsuit – although transportation hardly holds a monopoly on such dysfunction. This dysfunction goes something like this:
- An innocent defendant gets sucked into the vortex of a lawsuit following a catastrophic accident which it did not cause, and for which it is not remotely responsible
- The operating company genuinely responsible for the accident does not possess enough insurance coverage to compensate the bus-full of killed and seriously-injured passengers
- The small army of attorneys representing the multiple accident victims (or their “estates”) decide to compensate for the liable party’s insufficient coverage by filing suit against any and every other conceivable company whose products were “there.”
- These companies’ insurance carriers select the attorneys to represent them
- Those attorneys select the expert witnesses to assist them – at the approval of the insurance carriers
- The insurance carriers decide if and when to (a) settle, versus (b) proceed to court and try to prove these defendants’ innocence – or, employing an analogy to poker – whether to fold, call or raise.
There is, of course a significant difference between poker and settling law suits. That difference is that the laws of mathematics govern intelligent decisions in poker. To a knowledgeable and seasoned poker player, the odds of any and every scenario emerging are well-known and supported by proven mathematical constructs. Apart from bluffing (the one deviation from strictly following these odds), betting intelligently involves nothing more than mirroring these odds with one’s bets.
Understanding the rudiments of both pool and poker, one can see how radically different are the dynamics involved in resolving lawsuits, particularly from any defendant’s perspective. In fact, in the lawsuit following a catastrophic accident, where multiple codefendants are drawn into it, the structure of these codefendants, and to some degree the way they function, actually resembles a poker game with multiple players (unlike pool, which is essentially a duel): Not only does each “player” argue its innocence, but with multiple “players,” each argues that other players are also responsible for the incident – effectively helping the plaintiff’s or plaintiffs’ attorney(s). Thus, if you are one of five codefendants, you are not just dueling with the plaintiff. You are playing one-against-five, with every other party against you. So too are your fellow codefendants.
Who Calls the Shots
As noted, following a catastrophic accident, the victims’ attorneys dredge up multiple codefendants. What usually makes defending oneself in a lawsuit so difficult is not only the fact that each codefendant is outnumbered by players only interested in minimizing or eliminating their own shares of the blame (and their shares of the damage award or settlement they will have to pay), but the fact that the entity who makes the crucial decision about if and when to settle (i.e., fold, call or raise) is not even the codefendant. It is usually another party – its insurance carrier – which has a completely different, and single-minded goal: To minimize the pay-out. The codefendant may have all kinds of goals. For a vehicle manufacturer or supplier, these goals often include important commercial realities – realities that can make or break small suppliers – such as, “How will our acceptance of the blame (or our share of the liability) affect the future perception and sale of our products?” But such considerations are no concern of the insurance carrier, and often, they run counter to the carrier’s single-minded agenda.
As a consequence, the carrier’s client may be manipulated with needless gestures and illusions of assistance. However, most of a codefendant’s money is not at stake after a catastrophic accident. The carrier’s money is. So it is understandable why the carrier’s commercial concerns (like the effect of the lawsuit on future sales) and reputation matter little its insurance carrier.
Reversing the Spiral
If the reader has been following this series of installments, he or she may remember that Part 1 was subtitled, “Overview of the Spiral.” Part 8 of this series cited the first step to reverse this spiral: Keeping the vehicles of those companies responsible for most catastrophic accidents off the road. The second step is to reverse the dysfunctional and counterproductive dynamics involved when parties not remotely responsible for an accident are sucked into a lawsuit in which they do not belong, yet do not possess the decision-making power to defend themselves. There may be others, but the two best ways I can think of to accomplish this are:
- Eliminate the insurance carrier from the equation – either by (a) self-insuring oneself totally or, given the risks associated with accidents involving a dozen or more fatalities and scores of serious, permanent injuries – or by (b) forming an insurance pool with codefendants also likely to be innocent of any liability.
- Retain the current group of players, but dramatically alter the structure, functions and relationships among them — placing the ones who know the most in charge.
This second scenario would follow this sequence of steps:
- The codefendant hires an expert (usually an expert witness) well-versed in the themes involved in the accident or incident.
- The expert witness hires the attorney or attorneys to represent the codefendant.
- The expert witness(es) and attorney(s) work as a team to represent the complete spectrum of the codefendant’s interests – including those that lie beyond the mere sum that it may choose to settle for (instead of proceeding to trial)
But there is also a very important fourth step:
- The codefendant’s attorney(s) and expert witness(es) must work with fellow-codefendants (other than the operating company responsible for the accident or incident), rather than against them.
Dirty Secrets Lawyers and Insurance Carriers Never Tell You
As noted, a client’s full agenda in such a situation are not a genuine concern of its insurance carrier – although they may be secondary agendas of more ethical carriers, to the degree their bottom lines can accommodate such agendas. But there are a few other dirty secrets:
- While insurance carriers may listen to their attorneys, they will care about what they learn mostly to further the single goal noted above: To lose as little money as possible.
- Many attorneys barely listen to their experts (and many or most never do nearly to the degree needed, and even more rarely do when it comes to the goals of the defendants they are ostensibly representing, as instructed by that defendant’s insurance carrier, who hires them)
- The insurance carrier never listens to its attorney’s expert – although, to be fair, with the most enlightened attorneys, their advise to their carriers may reflect the advise they were given by their experts.
- To most attorneys, an expert witness is merely a tool, not a member of the “team.” To some, an expert is expected to be a puppet. To others, he or she is expected to be a shill.
- The vast majority of attorneys on both sides of the table usually employ an expert far too late in the process of a lawsuit to take advantage of his or her most important skills: The expert’s technical and analytical knowledge, and his or her experience about if, when and for how much to settle a lawsuit.
- Many if not most attorneys do not trust their experts, and as often as not consider experts’ requests for information as nothing more than excuses to review additional documents or make site visits in order to pad their “billing.”
In an intelligent response to a lawsuit, an expert should be engaged early. In the defendant’s case, an expert or experts should be engaged immediately. The reason for this is obvious: While it may take some time for an accident victim to find an attorney, or learn that he or she even has a “cause of action” (the foundation creating the right to file a lawsuit), the defendant knows the nanosecond it learns of an accident involving its product or service that there is likely to be a lawsuit. Thus, the only reason to not engage an expert immediately is to save money – in the hope that the lawsuit is settled, and money need not be wasted on an expert. Of course, on the plaintiff’s side of a lawsuit, when the plaintiff wins or settles the suit (as the plaintiff usually does when represented by a good attorney and a good expert), that expert’s fees are deducted from the plaintiff’s (or victim’s) share of the damage award or settlement. Thus when a plaintiff’s case is handled by a good attorney and a good expert, the risk of having to “eat” the expert’s costs is slim. This being the case, it speaks for itself about how poor many attorneys are, the lack of confidence they have in their own abilities, and their marginal skills in finding the best experts they can when they do not engage an expert until the last possible moment. In return for the law firm’s) unwillingness to take this slim risk, the plaintiff’s attorney (a) wastes the timetable for “discovery” by collecting only a fraction of the documents that would otherwise help him/her and his/her experts analyze the case (including not examining the vehicle and/or incident scene, and as a result, (b) largely wastes the depositions he or she takes of the opposing parties’ witnesses. Sharp defendants’ attorneys should, and often do, recognize this failure or pound-foolishness, and often adjust their settlement offers downward to reflect it.
On the defense side of the case, this dysfunction gets worse. This is partly because, as noted, the defendant knows it is likely going to be involved in a lawsuit almost the moment the accident leading to it occurs. But worse, the attorney’s decision about which expert witness to hire, and if and when to hire one at all, must meet the approval of the insurance carrier – the party (a) the furthest-removed from the technical facts around which a victory, defeat or settlement will revolve, and (b) the party that usually cares little about the defendant’s goals, needs or commercial agenda, but instead, only about how to minimize the “pay-out.”
Calling the Shots, Increasing the Risks
Of course, the degree to which any risk to such a carrier exists at all, it is usually a direct consequence of the existing dynamics noted above. If, in contrast, (a) the risks are slight as a matter of evidence (or the logic associated with it), (b) the attorney and expert are well-qualified, and (c) both the attorney and expert put the maximum amount of effort into the case, these risks are minimal. Of course, the latter of these risk-reduction strategies is greatly compromised when the expert is hired “way down the road,” and the attorney has wasted the opportunity to gather meaningful evidence, and as a result, wasted countless depositions from which he or she (and his or her experts) would otherwise have learned much. Having done all these things early in the case, the attorney would effectively win the case at the deposition stage, long before trial. For the insurance carrier of an innocent defendant, this would usually mean allowing its counsel to proceed to trial and walk away without paying anything, or settling for a pittance – although even the latter sends a bad message to future plaintiffs’ attorneys, and to some degree, perpetuates “the Spiral.”
One of the themes encompassed in the grand strategy noted in earlier installments of this series is the fact that settling a case – particularly for a large amount – not only encourages other attorneys to file suit against this same defendant in every accident in which its product shows up, but increases the tendency of additional plaintiffs’ attorneys in subsequent catastrophic lawsuits to follow the same “template” almost exponentially. In this manner, the Hinton case (in which a major coach manufacturer settled for $80,000,000 for a 2005 accident) begat the Vu case (in which this same coach manufacturer settled for $40,000,000 for a 2008 accident — this little only because there were three additional codefendants to sue as well, and two of them [not those I helped represent] settled for small fortunes). Then the Vu case begat a third case now being adjudicated against this same defendant for a 2011 accident – by the same attorney and expert who duped it into settling the first two. This ever-expanding punishment for not properly defending oneself is essentially “the Spiral” alluded to above and in other installments.
Life in Wonderland
The relationship among (a) a codefendant, (b) its insurance carrier, (c) the attorney that the carrier engages, and (d) the expert witnesses whose engagement the carrier must almost always approve is dysfunctional counterproductive for every member of this group except the insurance carrier.
One of the conclusions the reader should have absorbed, by now, leaked out “between the lines,” is the fact that many of an attorney’s failures are largely the result of failures of the insurance carrier that hired him, her or their firm. But far more than this, it is the fault of relationship among all these parties, and how they affect the broader goals and agenda of their mutual client (i.e., the codefendant), as well how they constrain the ability of their eventual expert (if even hired) to provide the most effective guidance to the attorney “engaging” that expert (again, usually subject to the carrier’s approval).
Hypocrisy, Naiveté and Human Nature
The absolute worst tendency among insurance carriers is the cavalier approach they take toward permitting their attorneys to select experts. In simple terms, they routinely veto the engagement of experts who, in previous cases, have pummeled their attorneys, costing them barrels of money. I can only guess that this is their way of punishing such experts for beating them in the past. Such an approach is, frankly, ridiculous, given the fact that the vast majority of calls most experts receive are from plaintiffs’ attorneys. This is because most cases are far too ugly to run the facts by someone anointed as an “expert,” and because the defendant’s counsel has free, endless access to every technical and administrative individual in its policy-making and management hierarchy . So the best experts hardly need the few extra defense cases that they usually turn down anyway.
But in human interest terms, this childish “blackballing” of experts is obscenely counterproductive: If some bully battered me in the schoolyard, he is precisely the person I want standing next to me when, years later, I’m lying in a foxhole. In simple terms, one of the privileges insurance carriers enjoy is the impunity to exercise the dumbest form of human nature in approving or rejecting their attorneys’ choice of an expert – choices attorneys know far more about than do insurance carriers. Like many other practices noted, this dynamic hardly operates to the benefit of the carrier’s clients (i.e., the defendants or codefendants).
As a final dynamic revealing even more about the counterproductive nature of the existing relationship among defendants and their insurance carriers, insurance-carrier-appointed attorneys, and insurance-carrier-approved expert witnesses, whom of the following is most likely able to choose the best attorney?
- An expert witness who has worked for and against hundreds or thousands of them, and who has read 10,000 depositions, seen the handiwork of countless attorneys, and after decades of this, has at least some document- and experience-related basis to evaluate or judge one?
- An insurance carrier tracking the numerical successes of various attorneys, mostly at a quantitative level, and rarely with the opportunity to have worked with or for any of them, and who has rarely seen examples of their work?
- A defendant whose expertise lies in designing, engineering, testing, producing, marketing and selling a product or service, and who ends up as the undeserving pig in a bad lawsuit once in a blue moon?
Similarly, which of the following would seem most capable of selecting the best expert?
- An attorney, most of whom pompously begin most cases with a complete misunderstanding of an accident or incident’s causation, and who usually have little or no understanding of the technical landscape in which various defendants operate?
- An insurance carrier whose guiding principal is “rewarding” an expert who “took it easy” on his or her company in the past (not realizing that this was usually because he or she was a poor expert, or operating under the control of a poor attorney, in a milieu where, with good plaintiffs’ attorneys and experts, the plaintiffs almost always win or settle for large sums)?
- A defendant with similar technical knowledge as the experts under consideration, who attends conferences and workshops with them, who interacts with them at trade shows, who reads their articles, and who is the only other member of the “team” with any serious technical knowledge of the subject matter involved in the issues of the case?
The correct answer to the first set of questions is answer #1. The correct answer to the second set of questions is answer #3. Now go figure out why you are losing tens of millions of dollars in cases where you do not belong, where you did nothing wrong, where you have little or no “say” about anyone else involved, and where your broader agenda is, at best, a footnote-sized courtesy of your insurance carrier (which only wants to retain your business).
This installment includes many important lessons for defendants in lawsuits in which they are innocent parties:
As an important footnote to these lessons, when there are multiple plaintiffs represented by multiple attorneys, those plaintiffs and attorneys work together. By working against both them and your fellow-defendants, you are effectively doing your opponent’s own dirty work. If the plaintiffs can and almost always do work together, why should you not do so with your fellow codefendants and their attorneys and carriers?
Unless and until these relationships are restructured, and roles reversed, the innocent will continue being treated as the guilty, will continue paying exorbitant amounts of money to settle lawsuits that they would almost certainly win outright (and pay nothing) if they defended themselves responsibly in trial. But worse of all, the continuation of “business as usual” encourages more and more, and still more attorneys to adapt the same procedures, and sue-and-settle against any and every innocent party whose vehicle, equipment or personnel just happened to be there. So you will either feed the Spiral, or you will stop it.
As someone deeply involved in these lawsuits, I can only provide advice about stopping this escalating travesty of justice, which the last 10 installments and the last one to follow have and will. But I cannot make the decision to do it. As they say in poker, “Keep paying or stop playing.” What makes the most sense when you are always losing?
- In our legal system, with the dynamics noted above, your genuine liability is practically irrelevant.
- The relationship among you, your attorney, your insurance carrier and your expert witness is, at best, an illusion. More realistically, it is structurally and functionally backwards, where those with their own goals – not yours — lead those without choice, who in turn lead those who are allowed to see only those things that the carrier’s real client (the attorney) want them to (or is willing to pay them to).
- By failing to work together with your fellow, likely-innocent defendants, you are bolstering the plaintiff’s case against yourself – since all of them, along with the plaintiff’s counsel, will be placing the blame on you.
- Your insurance carrier is the least qualified party to select a good attorney.
- Your insurance carrier impedes, and often prohibits, its attorneys from engaging the most-qualified experts.