By John J. Pappas
This is one of a series of articles under the by line “Butler Pappas on Bad Faith” originally published in Mealey's Litigation Report: Insurance Bad Faith, Vol. 18, #2, p. 27 (May 18, 2004). © Copyright Butler Pappas 2004.
The following are some thoughts that I have expressed, or I have heard others express, over more than twenty years in the litigation of “bad-faith” cases.
A. Of Jurisprudence
Not all accidents are the result of carelessness; not all carelessness are the result of negligence; not all negligence are the result of wrongs; not all wrongs are the result of maliciousness.
That which doesn't sound right in a Courtroom is often unremarkable outside the Courtroom – unfortunately it is the Courtroom that counts.
Trials strive to replicate the truth, but by definition, they cannot.
If you were surprised at trial, someone didn't do their job.
Litigation is about winning and losing.
There are winners and there are losers – those who don't know that are not winning.
Litigation places human conduct under a microscope that few can survive, and even fewer can survive unscathed.
Culpability is passe.
Life isn't fair; litigation is a significant part of our lives.
The cost of justice is unjust.
Propertied defendants are much like Goliath – Goliath was unarmed.
Looking for the deepest pocket to target for liability is “good” lawyering, but ain't right.
If the theme of your case requires deception – you have a problem.
All competent case evaluations should consider what Mom would say.
A forty percent (40%) chance of receiving a defense verdict on a $2 million claim means you are likely to be paying $2 million.
All negotiation is poker.
Today's Mediation mantra: “It is going to cost you at least that amount to continue to litigate the case.”
Damages rule.
A non-responsive witness is a sad, but beautiful thing.
It never ceases to amaze how a subpoena clears the thought processes.
On admissible evidence: “Documents don't have legs.”
Many expert opinions are not logical – which does not necessarily preclude them from being admissible.
1974 - Judicial mantra:
“Those who appear here seek only truth.”
2004 - Judicial mantra:
“Those who appear here seek only resolution.”
Judicial priorities: 1) resolution; 2) resolution; 3) resolution; and 4) justice – unless it interferes with resolution.
Judges shouldn't prejudge cases. Jurors shouldn't let sympathy affect their judgment. Lawyers shouldn't let their interests affect the interests of their clients. Witnesses shouldn't lie. No – they shouldn't.
There is a reason why we have appellate courts.
As long as Judges are elected, impartiality will be suspect.
All Courts adhere to the legal maxim: “What is good for the goose is good for the gander.”
Most of us, including judges and jurors, are somewhat tolerant of liars; yet, no one, including judges and jurors, are tolerant of being lied to.
Almost all judges react negatively to deceit – especially if it is perceived to be upon them.
There is something disconcerting about a Court suggesting that a defendant pay settlement monies to avoid litigation costs.
The definition of a genuine issue of material fact: “I don't understand.”
Jurors are much more perceptive than you think.
Jurors respond to attorneys who do not waste their time.
It is difficult to disagree with those who you like and respect – this goes for jurors as well.
When an insurance company makes a mistake there is a presumption it was not.
If a juror wishes that adjuster had adjusted her claim, that adjuster did well.
If the public understood how much money and resources were incurred in addressing meritless claims, there would be a revolution.
The best trial attorneys have great timing – and timing can't be taught.
B. Of Right and Wrong
All cases have a monetary settlement value – regardless of right or wrong.
Our civil justice system considers right and wrong merely one variable with which to calculate the monetary settlement of a case.
Everyone professes to be honest and good – many, if not most, are wrong.
To pay what you owe is right – to pay what you don't owe is not.
Are the ethics of those who pay to settle frivolous lawsuits any better than those who bring them?
If it don't look, sound, smell, taste, or feel right – it probably ain't.
The battle of credibility is not always won by the righteous.
It is difficult to conceive of a “bad-faith” case that does not involve delay or deceit.
There is truth, then there are the words describing truth – rarely, however, are they the same.
An honest lawyer with an honest client is intimidating.
C. Of Bureaucracies
The bureaucratic paradox – the higher you go, the less the facts matter.
How do corporate bureaucracies composed of such intelligent, educated, and good persons, do such stupid, ignorant, and bad things?
Plaintiffs are result-oriented while insurance companies are process-oriented – thus each tends to get what they want.
Not everything is fungible, yet only the fungible is measurable.
If I can't measure it – it don't exist.
Talent matters.
Talent is priceless – thus it does not appear on any spreadsheet.
Expenses have a floor – verdicts do not.
“Monday-morning-quarterbacks” are those who were not included in the Sunday huddle.
Apportioning blame is easy and counterproductive, solving problems is difficult and invaluable.
Corporate values when imposed upon others may not be in the corporation's best interest.
In evaluating counsel, most clients engage in speculation.
Shooting the messenger does not alter the message – it only silences it.
Hearing what you already believe is not as useful as hearing what you don't believe.
Problem-solving takes more muscle than brain and more guts than muscle.
Identifying and knowing how to solve the problem are not nearly as difficult as having the courage to do it.
If you can't explain it, you don't know it.
Everyone is a prisoner of their own perspective.
Most pitches are in the dirt; swing only at strikes.
Put the difficult stuff on top of the interesting stuff.
Less is always better – it is just not always possible.
Efficiency is knowing what does not need to be done.
There is an amazingly high correlation between agreement and positive responses.
All decisions decide dichotomies.
The cost of keeping a secret is prohibitive.
There are no secrets anymore.
D. Of Profits
If you want to know “why,” follow the money.
Contingency fee cases are much like the stock market; all investments are profitable, if you know when to take your profit.
Reallocation of wealth is American as apple pie.
Negotiate from strength – otherwise you're not negotiating.
In negotiation the more you want something, the less chance you will get it.
Never underestimate the desire to settle – including your own.
Don't “bluff” unless you mean it.
There is something almost spiritual about hearing the truth articulately expressed – it can also be quite profitable.
“Profits” is not a bad word.
Trust, well placed, is the greatest costs cutter.
E. Of Human Nature
Few are actually corrupt, although all are prejudiced, biased, partial, naive, and ignorant – they are human.
Flattery is endearing; honesty is not.
The ability to see through the eyes of others is an effort few make and even less achieve.
There is a high correlation between honesty and fearlessness.
Angry only works if your audience is also angry.
If you think it or feel it – so do others.
When the proverbial hits the fan, you frantically check your file, then, after a sigh of relief, you almost delightfully examine the file of others.
The secret to happiness is low expectations.
If you can't repeat it, you ain't listening.
If you are not enthusiastic, you are not at your best.
What happened, what you believed happened, and what you say happened are rarely the same.
Honest persons need not be secretive.
Some things you know you did, others you believe you know you did – all else is conjecture.
Memory is imprecise.
Memories are distortions.
If you can't identify the loser, it is you.
Trying to get others to behave the way you would like is the essence of all disputes.
Leverage is having control over something someone else wants.
Is that your final offer? – “Well, yeah, I guess, ah, ah, yeah.”
One of my favorites is the testimony of a back-hoe operator when asked how did he know where the underground electrical was located. His testimony was: “You know it when you hit it.” Didn't one of our Supreme Court Justices once say something like this?