Declarations and Exclusions

David Rossmiller Has You Covered

". . . . Thoughts of a dry brain in a dry season."
-- T.S. Eliot, "Gerontion" (1920)

In August, this weblog will be five years old. I do not know what the proper formula is for converting Human Years to Blog Years, but I sense that this sort of longevity makes Decs&Excs authentically middle aged, if not yet exactly a grizzled old timer.  And like many another aging hipster, Decs&Excs has been slowing down.  Since hosting the 102nd Edition of Blawg Review here last April, I have generated a mere 21 new posts of my own, barely enough for any weblog worthy of the name.   

Next Monday, March 31, it will be my pleasure for the third time to host an edition of Blawg Review, the 153rd.  (It is never too early, by the way, to submit suggestions for inclusion in that compendious portmanteau of a post via the handy submission form.)  It remains to be seen whether that will inspire a return to a more frequent cycle of posting here.

I will confess that some part of my slowdown may result from my being utterly intimidated by the undisputed Big Dog of the insurance coverage weblogging world, David Rossmiller's Insurance Coverage Blog.  David has pretty much owned the coverage of coverage over the past year or so, particularly the post-hurricane litigation in Louisiana and Mississippi and the spectacular fall from dubious grace of Dickie Scruggs and company.  While maintaining his own weblog at a consistently high level of quantity and quality, he has also found time to guestblog at PointofLaw.com and to serve on the advisory board for the burgeoning Lexis/Nexis Insurance Law Center.  I take it as a given that he somehow manages to render good service to his clients while he's at it.

For lawyers with weblogs, and particularly for lawyers thinking of starting a weblog, there's inspiration to be had in a post Mr. R. contributed to the Insurance Law Center earlier this month with the exclamatory title, "People: Throw Off Your Shackles and Blog!"  After adding his name to the long list of those who have despaired at the sheer gosh-awfulness of so much of the writing produced by lawyers-as-lawyers, he posits blogging as a promising cure:

This is what lawyers all too easily lose sight of when writing – that the goal is not to show how smart they are, or even to win.  The goal is to communicate with the reader.  All other aims must be secondary, because these goals stand the best chance of being realized if the primary goal is first achieved.  The reader’s needs must always come first, before any of the writer’s needs.  The writer must work hard, so the reader does not need to.  Blogging can be a great place for lawyers to discover how to do this, to break free of the iron claw of Latin and dead English, to use creative language, to employ metaphor, simile, allegory, and character development, to discover the storyteller within, to really connect with the reader.  Even judges and other lawyers, so they say, are human.  Given a choice between analysis that plods along like a mastodon on crutches and analysis that is both insightful and entertaining, the market will choose the more attractive product.

I wholeheartedly agree, but would add that there is potentially even more benefit to be derived by lawyers blogging about something other than the law.  The practice of law does not take place in a vacuum, but in a vast and multifarious Real World full of fellow human beings and of social, economic, political, natural, and cultural tidal forces, and the practice can only gain from the attorney's engagement with that larger context.  Also, writing about All That Other Stuff is frequently just more fun than writing about the law.  So, while there is undoubtedly ample room for additional well-written law blogs, there is even more room in this world for well-written, lively non-law blogs from well-rounded, lively lawyers.  Heed the call!

~~~

P.S., Blawg Review #152 is now up at TechnoLawyer Blog, which despite its name is not a blog for lawyers who love Techno.   Say, there's a niche for someone to fill.....

Put the Picture in the Box: Advice on Instructing Juries in Insurance Litigation

On his Insurance Scrawl weblog, Marc Mayerson offers up a lengthy, detailed and, yes, instructive post on "Jury Instructions in Insurance-Coverage and Insurance Bad-Faith Cases."  Marc provides plenty of practical advice for practitioners on either side of an insurance law dispute, and valuable reading for claims professionals or claimants who want to understand just What Their Lawyers Are Up To in trial preparation. 

Jury instructions can be compared to the wire armature underneath a clay sculpture: whichever side of the case he or she is on, counsel wants to be able to point to that armature and impress the jury with how well his or her side has fleshed it out with evidence.  ("My case hangs on those bones much more persuasively than my opponent's, ladies and gentlemen.")  The practical value of this bit of advice, in particular, cannot be overstated:

One mistake that lead counsel often makes in my view is not to personally take ownership of the jury instructions and instead delegates their preparation to the junior member of the team.  Ultimately, it is the jury instructions that determine the case – and the appeal.  Thus, it should be the responsibility of lead trial counsel to be intimately familiar with the drafting, submission, and argument over instructions to the jurors.

A highly recommended post.

DRI Hurricane Resources

Defense Research Institute [DRI] is the leading national organization for members of the insurance and defense bar, a sort of counter-ATLA.   DRI's home page is offering access to resources relating to hurricane recovery for the benefit of affected members in Louisiana, Mississippi and Alabama.  The resource forum is in what would usually be the members-only area, but the home page provides log-in information for non-members to reach it. 

In the e-mail alerting members to the resource page, DRI says "we are providing, to the greatest extent that our resources permit, the following services:"

1. A resource forum accessible from www.dri.org that enables members to do the following:

• Act as a clearinghouse for those volunteering/requesting temporary office space and/or personal residence.
• Provide a list of offers of assistance by DRI, TADC, LADC, MDLA and ADLA lawyers.
• View a list of the names and contact information of DRI members we have heard from in the affected regions.
• Post questions and/or additional information regarding affected members with whom you have been in contact.
• Seek information on hotels in neighboring regions offering rooms at discounted rates, as well as additional resources.  

2.  A 24-hour toll-free helpline: 800.667.8108 or e-mail address: dri_gulf_helpline@dri.org

3.  Assistance with emergency procedural pleadings that suspend or extend deadlines.

4.  Office supplies and copying services.

5.  Provide individual e-mail accounts on a temporary basis.

If you are, or if you know, any attorneys in the affected areas, refer them in DRI's direction.

More on the overwhelming impact of Katrina on the practical structures of the Louisiana legal system from Professor Bainbridge, here.  Additional comment by Professor Yin, here.

Other Voices, Other Rooms - 3 [Snarky Constructively Critical Jurist Edition]

First noted at Tom Mighell's Inter Alia, and now added to my sidebar:

Shaun Martin is a Professor at the University of San Diego Law School, and he's reporting on recent Ninth Circuit and California state appellate cases over at the California Appellate Report.

Professor Martin claims (and who are we to doubt it) to read every published decision from the California state appellate courts and California-related decisions from the 9th Circuit.  The decisions on which he reports cover many legal fields that are not covered by this weblog, but deserving of your attention.  The good professor also reports the occasional unpublished decision, such as a recent opinion in which, by his count,

. . . Justice Sims insults the attorneys sixteen separate times; indeed, virtually every footnote -- and there are fourteen of them -- contains a slam on counsel.

Discussion of that decision is also occasion for a meditation on the way in which the inherent expense of litigation may operate to undercut the quality of representation in small and medium-sized cases.  A brutal equation.

The complement to this story might be these Decs&Excs posts from late summer, 2003: The Pros and Cons of Insulting Judges [which includes an embarrassing misspelling -- unchanged in the interests of historical accuracy -- of the name of the estimable David Giacalone] and Further Reflections on that same topic.

Update [03/02/05]: The title of this post has been modified in response to a modicum of irascible teasing in certain quarters.

Other Voices, Other Rooms

Herewith, the first installment of what is intended to be a regular (weekly or near-weekly) catalog of links to posts and resources on risk, insurance, liability and related topics that you might otherwise have missed:

• Guesting at Crime & Federalism, David Giacalone [formerly of ethicalEsq and now of the hybrid haiku-and-law site, f/k/a . . . .]  focuses on increasing the public value of Small Claims Courts. 

• Decs&Excs Comment: I have mixed emotions about Small Claims, myself, although on balance I agree that it is a valuable resource.  While they can and frequently do provide an effective and inexpensive method of resolving disputes (largely because they are a lawyer-free environment) Small Claims Courts can also be a source of frustration in those cases that, despite a comparatively low value -- $5,000 or less in California --  nonetheless depend on the resolution of a sophisticated legal or factual question.  For example, a low-priced claim against a doctor or other professional can be brought in Small Claims Court but is nonetheless a claim for professional negligence or "malpractice."   Generally, outside of small claims, proof of liability in such cases depends on the testimony of qualified experts addressing issues such as recognized professional standards of care and medical causation.  In Small Claims Court, the same rules of law ought to apply, but there is always the risk that the defendant professional will receive an adverse ruling based on the hearing officer's  subjective, unreviewable determination of what's "fair."  Query: Should there be, in addition to monetary limits, a short list of "subject matter" restrictions on Small Claims Court jurisdiction?

• Writing on his Insurance Defense Blog, David Stratton wonders whether Washington, D.C., will soon become the site of Coyote Liability litigation.  Coyotes appear to have joined sheep and deer as a known free-ranging peril.  Perhaps this calls for some Coyote-Deer Risk Management?

• At PointofLaw.com, James Copland discusses the 2nd Circuit's resurrection of the 'I Got Fat at McDonalds' litigation, with helpful links to the Court's opinion,  and Walter Olson links to Medpundit's analysis of recent studies on the effectiveness of California's medical malpractice reform statutes.

• New Weblog Note:  Although his practice is focused on insurance-related issues (and although he holds the CPCU designation as I do), Sacramento-area attorney Jonathan Stein has chosen another subject for his freshly-launched site, with the self-explanatory title, Adoption Weblog.  He explained his choice in his first post:

  Why did I pick this topic? Well, adoption is near and dear to my heart.  My own children are adopted. I am a practicing attorney, and while I do not practice in the family law area, I do keep an eye on adoption trends. I have spoken in favor of adoptive parent's rights, and I (along with very competent and excellent co-counsel) currently represent a birthfather in a custody case. My views are not always going to be on one side or another, but rather from what I see is best.

• And finally, because I try to maintain at least a semblance of standards of taste and quality on this site, it fell to my alter ego, the Fool in the Forest, to report the latest news concerning Insurance and Coconuts.

Alternative Careers for Claims Professionals

If you are an insurance claims professional or otherwise involved in the claims process and you find yourself in Southern California on March 15 and 16, 2005, you could do worse than attending the 17th Annual Combined Claims Conference.   

As the agenda indicates, the Conference will offer three tracks of educational programs -- one each for property, liability and workers compensation issues -- covering all the hottest claims topics: earthquakes, mold, fraud . . . you name it -- even an opportunity to work on your golf game.

The closing program will be of particular interest to those affected by the tight job market, as it will provide attendees with access to a potentially lucrative new skill set:

• 4:00 pm to 4:30 pm:  LIVE Car Stripping Demonstration
  Hey Dude! Where's My Car?
  See how quickly a vehicle can be turned into parts!

Register now!

Listen Up: The Insurance Journal Interview

Now available in the multimedia section at Insurance Journal: "Blogging Insurance Law," a streaming audio interview with Decs & Excs writer/editor George M. Wallace (or, as I often refer to him, "me"). Direct link here.

The discussion with reporter Kevin O'Reilly covers the creation and reasons behind this weblog, legal weblogs in general and other online insurance-related resources, and some general comments on California law and the current politics of insurance. Notably missing: any remarks on the current investigations of large insurance brokers, which were first announced a few days after the interview was recorded. (The Internet moves fast, and life keeps moving faster.)

UPDATE (10/31/04): Thanks to Martin Grace and David Giacalone for their links to this piece.

Thanks as well to the anonymous (and hitherto unknown to me) Feedmelegal (webfeeds, weblogs and the legal profession), who has some interesting thoughts on What This All Means vis-à-vis attorneys and their use of weblogs and other online outlets, and who remarks in passing:

Feedmelegal doesn’t know Mr. Wallace from a bar of soap, but having listened to the interview, one gets the impression that he’s an amiable person who knows his subject matter.

Not a half bad unsolicited testimonial, that. Can a bar of soap blush?

Fun, Fun, Fun, Till Her Daddy Takes Her Facultative Retrocession Away

This Insurance Journal story leads to the website of "a new insurance education and entertainment firm," Insurance is Fun! How you respond to it will likely depend on how much you enjoy being told that you are having fun. Says site co-founder Chris Amrhein:

'I've been at this insurance thing for more than 30 years. And I spend a good deal of time traveling around the country, speaking at trade shows and conferences. Having survived this long, Pete [van Aartrijk] and I are the perfect people to spread the joy and humor -- to make insurance fun, because that's what it is to us. If you're not having fun, get out now!'

The uplifting goals of the site are certainly laudable: like the practice of law, the insurance profession is best filled by those who can actually derive pleasure and satisfaction from the work -- and both professions attract too many who find themselves miserable once they get in to them. For another example of the pleasures to be derived by A Certain Sort of Person in the practice of insurance law, consider the musings of The Uncivil Litigator on the doctrine of comparative bad faith. As the Uncivil One declares, "Fun stuff. For a law nerd anyway." Chacun à son gôut!

[Apologies to readers who may have been led by the title of this post to believe that it would contain useful information about reinsurance. That's another topic for another day. Trust me: it can be fun, too.]

Blawg Republic

Blawg Republic, is a new online aggregator of legal and law-related weblogs. It compiles links to newly-posted articles on law-related weblogs via RSS feeds and organizes the results by category. The site also offers its own outgoing feeds in each category, allowing you to monitor a specific field of law via your own stand-alone aggregator or via web-based service such as Bloglines.

Blawg Republic also provides a useful Blawg Directory to the various sites from which it is drawing its feeds. Decs & Excs briefly had the "Insurance Law" category all to itself, but has now been joined by such worthies as Professor Martin Grace's a tort et a travers and the anonymous but knowledgeable Uncivil Litigator.¹ Still missing from that list is Dave Stratton's Insurance Defense Blog, but I would not be surprised to see it added in shortly. (Blawg Republic is only a week old as this is posted, so its coverage is expanding day by day.)

¹I would like to think that the addition of those weblogs was at the instigation of my sibling more-or-less-nonlegal site A Fool in the Forest, which Blawg Republic generously includes, for the time being at least, in its "General Law" category.

The UCL Practitioner

Although it has been running since last October, I have only today discovered The UCL Practitioner weblog, which is devoted to issues surrounding California's "Unfair Competition Law," Business and Professions Code §17200. If you are a Californian and are not familiar with that statute, you should be, especially given that Proposition 64 on the November ballot proposes significant changes to the statute to respond to perceived (and actual) abuses.

Today's post provides a useful introduction to section 17200 and its proper uses.

Recommended, and now added to the Decs&Excs links list to the right. The site was brought to my attention via a link from The Southern California Law Blog.