Declarations and Exclusions

Marc Randazza: The Mark of Excellence

You will recall, perhaps, that I am a defendant in The Litigation Commonly Known as Rakofsky v. Internet. I have not posted updates on the case since last October, principally because the case was subject to a stay order. With the stay in place, there weren't much of nuthin' happening in the case. The stay expired on March 9 and, like maple sap in spring, the motion filings have started to flow again. The updates will start flowing again soon as well.

Today, as play resumes in Rakofsky, I want to take the opportunity to acknowledge the lawyer leading my defense, and the defense of more than thirty other defendants, most of them blawgers, in the Rakofsky litigation: Marc Randazza.

I had heard of Marc Randazza prior to being named as a Rakofsky defendant, but I had never had any contact with him. His presence and reputation were known to me through his blog, The Legal Satyricon, and through the blogging of others, such as Scott Greenfield or Ken-at-Popehat who know him firsthand.

Marc Randazza is a zealot, but a zealot of the best kind. His zealotry finds its focus in the First Amendment, and particularly the portions of that Amendment protecting freedom of speech and expression. Speech, without regard to its couth, its coarseness, its wisdom, its dunderheadedness, its cultural value, its tendency to discomfit or offend, is embraced by the First Amendment, and Marc Randazza has devoted his career to its preservation. Like Horatius at the bridge, Marc Randazza stands beside the Sluice of Speech to defend it and to see that its flow stays as wide and as free and as indiscriminate as possible.

What do we burn, apart from witches? More witches! What must we defend, apart from speech? More Speech!

Marc Randazza sees the Rakofsky suit, and far too many like it, as an attempt to pervert the power of law to the cause of stifling speech. He leapt, almost unbidden, to the defense of the Rakofsky blawgers in need of representation. With able assistance from Jay DeVoy of Randazza Legal Group and of our ace local counsel in New York, Eric Turkewitz, Marc Randazza is doing what is needful for me and for all of his other clients.

Marc Randazza has my back, and my back joins the rest of me in being grateful for it.

He is the man.

Thanks, man.

Profiles in Credibility

In the shiny, bold and brazen world of social media and social networks, LinkedIn—the self-styled "World's Largest Professional Network"—receives recommendations in plenty as the "It" spot for attorneys and other skilled laborers looking to connect, interact, gel, spark, and perhaps spontaneously combust in a dizzying explosion of opportunity.  To that end, LinkedIn's toolkit includes discussion groups—cleverly named "LinkedIn Groups"—through which like-minded or similarly inclined Linkedinovians can chat one another up, raise and resolve the burning questions of the day, and potentially (yes!) conjoin for mutual benefit.

It is hardly a bad idea in theory, this seeking out of others whose technical skills and specialized knowledge may meet your needs.  It is also not without its perils, especially for those involved in litigation.

Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause.  An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:

Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.

What can we deduce from this?  It is reasonably clear that this attorney is involved in active litigation—either a dispute with an insurance company over the terms of a policy or, perhaps, a claim for professional negligence against an insurance producer for failure to obtain needed coverage—and is going to need the assistance of a qualified expert witness to address the existence and terms of certain legal duties, standards of practice, or standards of care that may or may not apply in the circumstances under New York law.  

That an attorney would need and want expert testimony in support of his or her client's side of such a case is not at all surprising.  Nor is it unreasonable on the face of it for an attorney to conclude that a few discrete inquiries among the networked professionals on LinkedIn might lead to a source of such expertise.  Discretion, however, is not much in evidence here, even if we disregard the unseemly spectacle of a dozen or so self-styled experts—each of whom may in truth be, for all I know, fully qualified to respond to the question at hand—weighing in with the social network equivalent of "Me! Me! Oh, please pick me!"

I see the potential for trouble, both for the inquiring attorney and for any responsive expert.

While a topical LinkedIn Group is not an entirely public forum, the barriers to entry to a Group are far from insurmountable.  When a lawyer announces openly in a LinkedIn Group a search for a consultant or expert to work on a pending case, it is reasonable to assume that that announcement can and will be seen by the opposing party or opposing counsel, or by a consultant or expert who may at some point, perhaps already, be working with opposing counsel on the same case.  To post this sort of question to LinkedIn is to tip your hand in at least a modest way.  How significant the revelation may be will vary according to the circumstances of the case, obviously, but it is hardly difficult to imagine a situation in which the knowledge that a party has not yet located a necessary witness would be knowledge of real value to "the other side."  When you beat the bushes in public you reveal something of your bush-beating technique, which is exactly the sort of revelation of tactical or strategic thinking—aka that cherished resource, "attorney work-product"—that most legal professionals are anxious to avoid.

A potentially more substantial problem stems from the way in which this particular inquiry has been phrased.  The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers."  Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]."  The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.

Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for."  Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired.  Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.  

With an expert witness, credibility is everything.  An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion.  A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process.  The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."  

We can leave to another day the ethical questions suggested by an expert who leaps too happily to answering an inquiry framed as this one has been.  A reputation for "saying what the attorney wants to hear" may be advantageous in the short term, but it does nothing to enhance the reputation of a witness for true expertise.  Moreover, a willingness to promise to provide a specific opinion even before learning the particular facts of the case to which that opinion applies shows a cavalier attitude at best, and may suggest a mercenary willingness to Say Anything for the sake of a fee.  

The value of confidentiality in selection and consultation with experts is reflected in the practice in most jurisdictions of not permitting inquiry into the identities or qualifications of the parties' respective expert witnesses until the latest stages of the litigation, immediately prior to trial.  In an adversary system, the Other must always be assumed to be watching, waiting to spot and to seize any advantage; information concerning the opponent's selection of an expert may provide that advantage.  Hunting for expert assistance in litigation is therefore typically best done under as much cover as possible.  Shouting an invitation to the hawkers of expertise in the electronic bazaar that is LinkedIn might work out for the best in any given case, but it seems a risky and unnecessarily exposed way of going about an important and already delicate task.

~~~

Photo:  Sheet music cover of "They Didn't Believe Me", from The Girl from Utah (1914), via Wikimedia Commons.

Insurance Weblogs on a Roll Honor Roll

Via the Boston ERISA Law Blog, I learn that the crackerjack marketing team diligent legal researchers at LexisNexis have named their Top 50 Blogs for Insurance for 2008.  Notwithstanding the obstacles in the grueling selection process posed by my having gone more than five months without a new post here, and by my having produced only eight posts on this site since the start of the year, Decs&Excs makes the list.

Although I am pleased at being included, and have promptly installed the "Top 50 blogs" badge in the right hand sidebar, there are aspects of this list that cause me to arch a brow in a Spock-like and quizzical fashion. 

To begin, it appears that the compilers have had to stretch their definitions of "insurance law blog" more than slightly, in order to puff the list up to fifty.  The list includes several examples of weblogs that are excellent in their own right, but that have no real insurance connection. 

• I am as much an admirer of Ernie The Attorney as anyone -- he was one of my inspirations as a legal blogger and has been included in my blogrolls from Day One -- but insurance is simply not his field. 

• Kevin O'Keefe's Real Lawyers Have Blogs?  Also valuable and a longtime resident of my blogroll, but not because Kevin has ever focused on insurance law. 

• And Urban Law Journal, which I'd not seen before, certainly looks interesting but, again, has essentially nothing to do with insurance. 

There's a lesson here of some kind.  Something about meeting quotas for the quotas' own sake, perhaps, or about setting the size of a list sufficiently high that almost no one will be omitted.  ["LexisNexis to Insurance Bloggers: 'All have won, and all must have prizes.'"]  Whether they precisely fit the award category or not, at least the recipients of LexisNexis' favor are all worthwhile sites.  And they actually exist, unlike certain award-winning restaurants in the news recently.

The other intriguing, or disturbing, or perhaps backhandedly comforting, discovery that I have made in sifting through the LexisNexis Top 50-give-or-take Insurance Blogs is this: I am not alone among insurance bloggers in experiencing a major drop-off in posting frequency.  Many of the more established or "senior" risk and insurance weblogs -- sites that I follow and that have been in existence for more than a year or two -- are going longer between new posts than they have in the past. For example:

• Marc Meyerson's Insurance Scrawl has had nothing new since February.

• RiskProf is managing at least one or two posts per month.  Even with three current authors, the site is operating at a slower pace than when Martin Grace was running it on his own. 

• David Rossmiller's heretofore unstoppable Insurance Coverage Blog (which I regard as the current gold standard of insurance blogging) has gone as long as a week or more between posts recently -- almost alarming given the extended run of daily updates with which Mr. R earned his sterling blogging reputation.  (I cannot help noticing that Rossmiller and two out of three RiskProfs were seen dining together in early August.  Significant?  Draw your own conclusions.)

Even weblogs that have not previously been on my own radar, several of which I now intend to add to my RSS feed and/or blogroll, seem to be succumbing to the slowdown.  In California alone, examples of weblogogical deceleration can be seen at Cal Insurance Regulation, the Health Insurance Blog and California Insurance Lawyer Blog.

Of course, it is easy, even accurate, to urge that quality should matter as much as or more than quantity: if a blogger goes days, weeks, months (who knows?) between posts of extraordinary depth and insight, who are we readers to complain?  Not a bad argument, to which the obvious counter is that frequency of updates is generally seen as one of the defining features of a weblog.

"Your point being . . . ?" you ask. 

"Not much of a point," I reply, except as a sort of throat clearing in anticipation of attempting yet again to reaccelerate my own commitment to this weblog. 

In the meantime, while I am overcoming my phlegmatic attitude, those with an interest in insurance and risk issues should consider browsing at random through the LexisNexis 50, where there is ample information, talent and acumen to be discovered.

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: [email protected]

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?