Do Your Attorneys Have Your Back?

Do your attorneys actually have your back? Or are they just going through the motions?

At Cruser Mitchell, the one trait I look for in all our attorneys is exceptional problem solving.

I want them to be able to take a quick look at a very complicated situation and come up with the most efficient and effective manner of solving it. I want them to deliver our clients surprisingly easy wins and an occasional “miracle.”

I want them to see potential pitfalls before they turn into major headaches. When a client says, “This may turn into a problem…” I want them to have already thought about mitigation strategies.

And I want them to be on the lookout for opportunities. I want them to imagine and cultivate every possible chance for saving our clients time, money, and energy. (See the story below for a great example of this.)

The attorneys at Cruser Mitchell aren’t just filing paperwork. We’re constantly on watch for risks and opportunities. We don’t bill just to bill. If we recommend a task, it is because it will lead to (1) information that will be material to our Resolution Strategy of settle, dispositive motion, or trial and/or (2) materially decrease indemnity or inform on value of the case. Again, we just don’t bill to bill!

And, that’s how we save our clients hundreds of thousands in both legal fees/expenses and indemnity.

Let’s disrupt something.

Bill

MASTERS OF NEGOTIATION

92% of all cases settle—but when?

Join me for Cruser Mitchell’s Masters of Negotiation series and come away with the skills you need to save legal fees and indemnity by creatively and efficiently resolving cases.

The next Masters of Negotiation Series begins September 6, 2023.

September 6 — Playing Chess Instead of Checkers: A Strategic Approach to Negotiation
September 20 — Soft Skills of a Master Negotiator
October 4 — The Leverage Point of Plaintiff’s Needs
October 18 — The Leverage Point of Collectability
November 1 — The Theatre of Mediation
November 15 — Identifying the 1% that will Go to Trial as Early as Possible

Disruptive Lawyers Are Your Tsunami Warning System

In 2004, a major earthquake occurred under the Indian Ocean, releasing a monster tsunami that moved at 500 miles per hour and hit the coast as a wall of water 20 to 30 feet tall. The tragic result: 230,000 killed and 500,000 injured. Amazingly, much of the death and destruction could have been prevented by a Tsunami Warning System. Indeed, this system existed in the Pacific Ocean at the time, but was not monitoring the Indian Ocean until 2005.

In 2017, Dramshop Insurance Co. insured was one week away from going to trial on a double fatality case involving liquor liability. The bad guy, allegedly while drunk, bought liquor from the insured liquor store and about an hour later, the police saw him and tried to pull him over on a prior warrant. The bad guy refused to stop and the police chased him at over 90 mph for several miles until he T-boned the plaintiffs' decedents' car, instantly killing an adult brother and sister. The plaintiffs filed two suits: one against the police and another lawsuit against the liquor store. The liquor store lawsuit went to trial first.

The trial lawyer for Dramshop Ins. Co. advised that liability was very unlikely because (1) the bad guy told inconsistent stories as to whether he was "noticeably intoxicated" when he purchased the liquor—hence, counsel believed he would be seen as a liar by the jury; (2) the police chase was an intervening cause of the incident; and (3) due to apportionment, the bad guy and police would be 90% at fault.

As a result, and after a detailed insurance company "trial round table" on the matter, they agreed to turn down the plaintiffs' $750,000 demand and go to trial.

At trial, the defense trial lawyer encountered some serious problems. Namely, he didn't have an expert to apportion wrongdoing to the police by proving a policy/procedure was violated to establish causation. Further, while the defense lawyer did conduct a great cross-examination of the bad guy to establish that he was not noticeably intoxicated, the plaintiffs' lawyer did an equally great job impeaching him on his earlier sworn testimony. He conceded to being “really drunk” when buying the liquor that morning and was so drunk as a result of drinking the booze from the insured liquor store that his drunken impulses made him run from the police. Meanwhile, no one from the liquor store testified on this fact because they did not remember anything about the DOL. Not surprisingly, the jury sympathized with the dead siblings' children and, given there was only “check book,” concluded that the bad guy was drunk when he bought the booze, leading to an excess verdict and exposing Dramshop Insurance Co. to bad faith.

STOP. REWIND.

Thankfully this did NOT happen. Why? Because the insurance company had in place its own Tsunami Warning System: a Disruptive Lawyer to evaluate all upcoming trials, especially when the insured was demanding settlement within the policy limits.

Here is what the Disruptive Lawyer advised upon a 10-hour review of the claim: This case would have been a likely winner if the right theory had been cultivated. The focus of the case for trial should not hinge on whether "the bad guy was noticeably intoxicated when the liquor sale occurred." While that is an issue that had to be addressed, the case should have been prepared focusing on a different theme/theory. Rather, the case theory should have been: "The bad guy was a fugitive from the law who had a history of running and, contrary to plaintiff’s theme, sober or drunk, was going to run from the law on the date of loss regardless of any patronage at our liquor store." Indeed, overwhelming evidence supported this theory IF cultivated albeit not highlighted or even mentioned by trial counsel’s pre-trial evaluative report.

The Disruptive Lawyer's 10 hours of investigation revealed the following "fugitive from law" theme: In the few weeks leading up to the DOL the bad guy (1) had gotten a DUI and failed to show up for court, thereby losing his license; (2) days later was involved in a hit and run accident and fled successfully from police; (3) fought and fled the police 24 hours before the accident, leading to a warrant for aggravated assault on police and eluding police; (4) on the DOL, police found bad guy and chased him for 50 miles before colliding with death victims; and (5) even after crashing into the decedents' vehicle, tried to run on foot from police.

In effect, the case theory should have focused on the bad guy being a fugitive who was NEVER going to turn himself in—sober or not! Intoxication had NOTHING to do with him fleeing the police. Indeed, when the bad guy beat up a cop and drove off the day earlier, he was sober. Yet, that victim police officer (who would have been defendant's STAR witness for trial) was not deposed or identified as a trial witness.

In sum, the Disruptive Lawyer advised the insurance company that if the case were tried under the "fugitive" theory, they had a solid chance of winning because the fugitive’s intoxication level essentially becomes a nonfactor in the case. There was no need to ignore this GREAT evidence and try the case focused on the drunk’s word about his intoxication level when he bought the booze from the insured’s liquor store. However, if the focus of the case was going to be the word of the bad guy on his intoxication status at the liquor store, they should be concerned given the strong sympathy factor and risk of a significant verdict above the $1.0 million policy limits. With that advice, the case was settled below the last demand and bad faith exposure was avoided.

The takeaway? A lawyer with the right skill set will see things others do not, resulting in significant savings in legal/indemnity, as well as alleviating bad faith concerns.

Want to learn more about how hiring a Disruptive Lawyer can help you save on legal fees and indemnity? Sign up for the Masters Of Negotiation webinar per the link above!

In The News

By now we’ve all heard that several carriers—Farmers among others—have decided to end some policies in Florida, leaving policyholders panicked and fleeing for the lower premium state-backed option, Citizens.

Each major storm has been costing insurers tens of billions of dollars, with every year breaking new records. They were looking at an impossible situation.

But there’s another factor at play: Florida’s one-way attorney fees, which had until recently been giving insurers nightmares for years. Florida was notorious for its status as an insurance cash machine, with this provision allowing insureds to collect reasonable attorney fees any time recovery was rewarded on a property damage claim. It was making a costly environment even costlier because the attorney’s fee provision flipped leverage in most cases. In effect, there could be a $10,000 roof damage claim, but due to the attorney fee issue, it could quickly become a $20,000 exposure with attorney fees, effectively forcing carriers to settle many times without proper investigation of the claim.

Shockingly, the legislature eliminated one-way attorney fees last December. But for many carriers, this was just too late. Combined with the major losses they’ve been sustaining, staying in Florida was just not worth the risk.

The Disruptive Lawyer’s Tequila Corner

Everybody drinks margaritas all summer long.

But I bet you didn’t know the original margarita is nothing like what you’re drinking. Spoiler alert: you don’t need a blender to make it.

Here’s the recipe:

• 2 oz of blanco tequila

• 1 oz of triple sec (preferably Cointreau)

• 1 oz of lime juice (fresh!)

Shake with ice until chilled, then strain. Don’t forget to rim the glass with salt and add a lime wheel for garnish!

It’s a smooth and complex cocktail that’s refreshing regardless of the season.

And yes, you can order it at a restaurant.

Cheers!

Ready to get a little disruptive?

Join me for some Disruptive Litigation Advisement.

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The Disruptive Lawyer’s Laugh Break