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What to Know Before You’re Sued: Advice from a Legal Malpractice Specialist · Coopers' Code

0:00
A little bit of a how not to get sued at the beginning.
0:02
If I had like a a hit list of things that I would ask lawyers
0:05
not to do, these are the ones that, you know, often times end
0:09
up in my lap. It really starts to depend on
0:12
what type of practice you have. Pick a good client with a good
0:16
case who has reasonable expectations.
0:19
If your client has unreasonable expectations, isn't pleasant to
0:24
deal with that you can just tell is going to be a problem.
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Don't take it so that. That's I think number one
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easiest way to avoid getting. Sued Howdy and welcome to the
0:36
show. Cooper's code focuses on legal
0:38
issues and notable practitioners, distilling wisdom
0:41
so we all achieve the best results for our clients.
0:44
I'm Miles Cooper and I'm very excited to share this
0:47
conversation with Marshall Cole. Marshall is a trial attorney at
0:50
Mimichek and Cole known for handling high profile work with
0:53
particular focus and professional liability defense.
0:56
He's the lawyer that you don't want to need.
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Marshall will share with us his insights from his years in the
1:01
trenches and how not to get sued, what to do if it does
1:04
happen, and other learnings along the way.
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Marshall has built an impressive track record of securing
1:08
favorable verdicts for his clients.
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Beyond his professional practice, he contributes to his
1:12
community as a volunteer prosecutor for the City of
1:14
Inglewood. Marshall honed his competitive
1:16
spirit well before becoming a lawyer.
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Marshall won the World Skiing Junior World Championships in
1:21
2001 and went on to represent the United States and Ford World
1:24
Championships after. When not in the courtroom,
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Marshall works off stress on the bike Mountain bike in ski
1:29
slopes. Welcome to the show, Marshall.
1:35
Thanks for having me. For those who don't know our
1:38
background, we've done a number of presentations.
1:42
Are we 2? We've done 2.
1:45
Two. Yeah.
1:46
Two with one-on-one on deck in a couple months.
1:49
On artificial intelligence, so it'll be interesting to talk
1:51
about something different. In Indeed.
1:55
Kind of getting straight into your your work, tell us a little
2:00
bit about the kind of practice that you have in terms of
2:03
professional liability and, and, and other matters.
2:05
Sure. So managing partner of a firm
2:08
called NEMESEC and Coal here in Los Angeles and we are known for
2:13
what I like to think is being the pre eminent firm handling
2:17
professional liability matters and in particular defending
2:21
lawyers throughout the state of California.
2:24
We handle accounting malpractice cases, directors and officers as
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well as employment related claims.
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But like I said, what we're really known for is defending
2:34
lawyers and, and I absolutely love what I do and, and getting
2:38
to have lawyers as clients. It's just a a real joy to have
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as my practice. One of my notes is in terms of
2:47
doing background work is is you are the lawyer that we lawyers
2:51
do not want to have to need? Is that a a fair statement?
2:54
You don't want to have to need me, but when you do, you're sure
2:58
glad I'm here and along with my team because it's a true
3:03
specialty. I mean, while I'm a certified
3:04
legal malpractice specialist, we have more specialists at my
3:08
firm, I think. And I'm pretty confident I can
3:10
say this than any other firm in the state of California.
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And, you know, so we really know what we're doing when we handle
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these types of cases, and it makes a huge difference using US
3:20
versus someone less experienced. I definitely get into that a
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little bit more before we get there though, I'd, I'd love to
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hear a little bit about how you found your way into the law and,
3:32
and into this particular field of law.
3:35
Yeah, Not sure how much of A choice I really had in my life.
3:38
As I was reflecting on that question.
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I, my my father started the firm in 1984 with the the other
3:46
founding partner, Frank Nemesak. By no means were they doing
3:50
professional liability matters back then in 84, but it was just
3:54
the two of them, you know, working away, getting cases,
3:57
getting business, slowly growing the firm.
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And then my father kind of found himself starting to handle these
4:05
types of cases for a particular insurance company and just got
4:10
more and more into it. And the practice evolved and
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grew to the point where to to his name and to the firm's name.
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We have well over 50 published decisions today, generally
4:23
speaking, on issues that pertain to fee disputes, legal
4:27
malpractice related cases and other issues as well.
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But I, I do like to think that he really kind of pioneered this
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particular practice. And so when it came time for me
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to go to law school, which is something I, I knew I wanted to
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do and sort of follow in his footsteps.
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I certainly didn't have any idea that I would, you know, later
4:49
take over the firm after he retired.
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But after graduating law school, worked at an, a large firm in
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Century City for a while. And then he just kept pushing me
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to come over and come over and come over and get real
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experience. And after about a year I did.
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And honestly, it was the best decision I ever made.
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A just getting to learn this practice basically from day one.
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And it, you know, it's really all I've done is defend lawyers.
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And so I'm getting to try cases and defending lawyers and just
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getting that experience has really allowed me to be where I
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am today and have the confidence I have in representing, you
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know, massive worldwide law firms down to mom and pop sole
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practitioners who go and hang a shingle.
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So that's so so I don't know that I really ended up having a
5:46
choice in in the matter, but that's how I.
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Got here. I presume you overlapped with
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your father for some time. Yeah.
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What was it like to practice with your dad?
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We overlapped for over 10 years. He retired about 2020 or 2021.
6:06
It was amazing. We have very different
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personalities. You know, I would for a lot of
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it. I was very young and
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inexperienced, so I was just working on cases and he was a
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couple levels above me. But as I I got more experience
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and was trying cases, you know, where we were more equal.
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We we were great partners and collaborators on matters.
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And because his style was much more aggressive and intense and
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minds more laid back and smooth is the word I would use.
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But we were just very different. And so we worked well together.
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It was sort of that yin and Yang and also, you know, it's kind of
6:54
a truly a family business. My mother was ran the whole back
6:58
office for us, which is now done by my sister.
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So we were really able to effectuate a transition when
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that time came up. But you know, it's just an
7:06
enjoyable thing. Not often in a law firm do you
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get to have it be a generational thing.
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It's not like we manufacture a product that you can just sort
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of hand the keys over to. But at the same time it had its
7:19
challenges and difficulties for a long time.
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You know, he had these massive shoes that I said, how am I ever
7:28
going to fill them? You know, and so I, I realized
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once I started to get my own business and get my own results,
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that I just was like, I'm never going to fill them.
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That not something I'm interested in doing.
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I'm going to just put my own set of shoes right next to his.
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They'll grow as big as they can. And once I did that and just
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kind of established myself on my own, it, it made a huge
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difference for me professionally and personally and just how I
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felt about myself and my career And not so much sort of
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measuring it based on the success that he's had versus
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just focusing on, I'm going to do my thing and, and the results
8:04
will come. And and they have since I've
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kind of shifted that that my focus in that way.
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I think you said something that's really important for
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younger lawyers to, to hear and process because often times
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younger lawyers are they, they see other people, mentors, what
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have you and they, they feel like they have to do exact
8:23
things exactly the same way as opposed to adapt to their own
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style. And, and it sounds like you you
8:30
did that and, and I'd love for you to expand a little bit about
8:33
how that worked for you. Yeah, I think the best thing
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that mentors can do for you is teach you what you're not going
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to do. You know, you, you see them do
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their thing and you can learn. You know, that's not me.
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I'm not gonna practice like that.
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I see why they do it and why it's effective for them.
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And if, but I often see lawyers that they, if they feel a little
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uncomfortable, it's probably most likely 'cause they're not
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being themselves. I mean, you have to, at the end
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of the day, be yourself and practice this profession 'cause
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we provide a service. And so it's really you're
9:09
selling yourself. And if you're selling someone
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else disguised as yourself, it's just not going to work.
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And you're you're going to also kind of have a miserable career
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because you'll be uncomfortable the whole time or insecure about
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what's going on. And so I think he was a huge
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mentor for me in learning about the law and how to run a
9:31
business. But also he's super intense and
9:34
aggressive. And I said to myself, I'm I
9:37
don't want to be that guy. I can resolve cases or handle
9:41
things with my own personality in a totally different way and
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get the same result. He probably would say I can't do
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or couldn't do what Marshall did.
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There's just no way. He was too intense.
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And so I think it's a huge skill to learn when a young lawyer or
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a seasoned lawyer is being mentored by someone.
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I mean, I think the majority of my mentors probably didn't even
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know they mentored me. It's just, you know, good being
10:07
around good lawyers. I'm going to push back a little
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bit on the intensity and, and it's a tangent, but you know,
10:14
as, as I was doing my homework, I noted the bit on your water
10:18
skiing background and my impression.
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And, and I'm going to ask you to unpack that a little bit so that
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people understand what I'm referencing.
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My impression of somebody who has competed at at that level is
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that that's somebody who also is going to be fairly intense and
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going to potentially want to be in a courtroom type A
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personality. So with that as background, can
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you unpack that a little bit in terms of of of your competition
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background? I, for basically age 6 to
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probably 25 or so, competed in a sport called water ski racing.
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This isn't slalom skiing or anything like that.
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This is getting behind a boat, putting a water ski on and going
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at speeds of anywhere from 115 miles an hour down to 50 miles
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an hour depending on the water conditions and you ski and race
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for, depending on the type of race it is.
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The World Championships were an hour long race that you'd
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compete against people from all around the world.
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And when I was 17, I was the Junior World champion
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representing the United States. And then I subsequently competed
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on three more United States water ski racing teams
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representing the US in competing.
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So it's intense definitely. I think to balance it with what
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I was saying earlier about my personality, you know, I like to
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go fast. I've water ski raced at well
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over 100 miles an hour. I bike ride as I know you do and
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and enjoy intense activities. I snow ski a lot now, which is
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really taking the place of water skiing for me.
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But and maybe that's where I'm able to flex that muscle when I
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need to. And then when I come here and
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mostly the intensity is just, you know, when I interact with
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people opposing counsel, we're we're litigators, we're dealing
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that with that type A personalities.
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We're competitive, we want to win for our clients.
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It's more just when I do that in dealing with opposing counsel,
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most often I do it very nicely. It takes a lot for me to, to, to
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get angry. You know, I always shake my head
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when I get an e-mail from opposing counsel that's angry
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and, or, or a lawyer that I deal with throughout the whole case
12:44
that's just angry. And I'm like, you know, I feel
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bad that that guy or woman has to live in their own body.
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It's just like, it's just a case and I enjoy it and I, I try to,
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you know, treat people with professionalism.
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And so that's where it's more my calm demeanor I think gets great
13:05
results for clients because I just cruised through the case.
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Not a lot's going to ruffle my feathers.
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Maybe again, it's because I have this outlet where I can go crazy
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and be super intense, but I don't need to do it here.
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From there, I, I'd like to pivot into your, your, your focus and,
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and my thinking of approaching this and totally open to input
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on how we tackle it, but kind of a little bit of a how not to get
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sued at the beginning. And, and what I mean by that is
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are there patterns you've seen ways that lawyers are handling
13:42
themselves or their cases where you're like, yeah, you know, if
13:46
I had like a, a hit list of things that I would ask lawyers
13:49
not to do, these are the ones that, you know, often times end
13:53
up in my lap. I mean, it starts at the
13:56
beginning. Funny enough, often times I
13:58
shake my head when I get these cases.
14:01
Client selection. So many cases that I get the
14:04
Laura, The first thing is I, I knew this client was going to be
14:07
trouble when they came in the the door.
14:09
Well, then don't bring him in the door.
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You know you if your Spidey senses are tingling and all the
14:17
red flags or bells and whistles are going off, send them on
14:20
their way. Guess what?
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There's another case right behind it, you know, And so I
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think it's poor decision making and intake that leads to a lot
14:30
of claims. And then you're stuck with a
14:32
defending a legal malpractice case and dealing it with it for
14:35
a year or two. So that's the easiest way to
14:40
avoid it. Pick a good client with a good
14:42
case who has reasonable expectations.
14:45
If your client has unreasonable expectations, isn't pleasant to
14:50
deal with, that you can just tell is gonna be a problem,
14:53
don't take it. So that that's, I think #1
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easiest way to avoid getting sued.
14:59
From there, it really starts to depend on what type of practice
15:04
you have. You know, we represent personal
15:08
injury lawyers, real estate transactional lawyers, a lot of
15:11
family law lawyers, entertainment lawyers, and each
15:16
one of those little practice groups carries with it certain
15:21
issues that come up more than others.
15:23
You know, like family lawyers, for instance.
15:26
A lot of them are boutique firms, if not all of them,
15:29
unless you're, you know, going to go to a really big firm and
15:31
they're super high net worth. They have a lot of cases and
15:35
they're already dealing with people who are generally going
15:39
through the worst time of their life.
15:41
So you're already dealing with that emotional level of, you
15:47
know, sadness, anger, all the bad emotions at the same time.
15:52
And of course you're trying to a do work for them, get paid for
15:57
that work and get them out of it so they can move on.
16:00
Unfortunately, I think a lot of them have a high volume practice
16:03
of things just fall through the cracks and then they're just
16:06
difficult people to please because of the situation.
16:09
And so I've handled a lot of cases regarding child custody
16:13
or, you know, the financial arrangements that get it set up
16:16
by way of settlement. And then, you know, a year
16:18
later, they say, Oh my gosh, this deal was horrible.
16:22
And they're easy enough to defend because it's tough,
16:25
virtually impossible to prove that there would ever have been
16:28
a better deal or a different deal that the husband or wife on
16:32
the other side would have agreed to.
16:33
But, you know, that's just the nature of that practice in
16:36
particular. And like I said, others carry
16:39
along different different types of things.
16:41
I mean, personal injury, for instance, a lot of personal
16:44
injury lawyers represent multiple clients at the same
16:47
time, you know, passengers in a vehicle, the driver and a
16:50
passenger in a vehicle, whatever it might be, you've got to watch
16:53
out for conflicts. And when the new rules came out,
16:57
which they're not new anymore, I mean, they're, they're, they're
17:00
almost, you know, 5-7 years old at this point.
17:04
Basically anytime you have multiple representation, it's a
17:08
potential conflict and you need a conflict waiver.
17:10
The older rule pre 2018 didn't have that.
17:14
There was more leeway there. And so those are issues that
17:17
come up on those types of cases. And again, you know, settlements
17:20
that that fall below what people think were reasonable.
17:24
One more easy way not to get sued is if you're billing your
17:29
clients, don't get a crazy receivable, right?
17:32
Manage your accounts payable. Many, many cases come in because
17:40
a firm racks up 100,200 thousand $700,000 in unpaid legal fees.
17:46
Guess what's coming your way? A legal malpractice complaint.
17:50
Does it have merit? No, it does not.
17:53
But it is leverage to negotiate down that unpaid receivable.
17:58
And we see that all the time. And it's such an easy thing to
18:03
avoid. And also, if you do find
18:06
yourself in a situation where your client's not paying, wait
18:10
more than one year from the date that you stop representing that
18:14
client before you file a lawsuit.
18:17
The reason I say that is because in order to sue a lawyer you
18:21
have there's a one year statute of limitations that benefits all
18:24
lawyers in the state of California.
18:26
It's a great statute of limitations.
18:28
It's as short as it can get, other than if you're a
18:30
governmental entity and take advantage of that.
18:34
If you file your complaint for unpaid legal fees within the
18:37
year, you're going to get a cross complaint for legal
18:39
malpractice. So at least wait the year.
18:42
You're still going to get it as an affirmative defense and an
18:44
answer, but that's a whole different thing.
18:47
So that's just the easier way to to deal with it.
18:50
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19:04
dot law Moving past the the how not to get sued.
19:08
Do you have thoughts, opinions on the type of insurance and
19:13
aspects of insurance errors and omissions policies that lawyers
19:17
should think about in order to protect themselves so that they
19:21
have a both a war chest in terms of defending themselves but also
19:26
some decision making process? A have it.
19:30
There's, there's too many lawyers in the state of
19:32
California that walk around uninsured.
19:35
California does not require it, but that does not mean you
19:38
should not have it. Because any time I represent an
19:42
uninsured lawyer, I say, you know, all that money you saved
19:45
in premiums for however many years you haven't had insurance,
19:48
you're just going to hand it over to me.
19:50
And so and you have exposure. So it's just, it's, it's just
19:54
this the dumbest thing to do. Having the insurance really then
19:58
comes down to what amount is adequately gonna cover you.
20:01
And that really depends on your practice in the Pi space.
20:06
You know, think about the, the, the amount of the last
20:09
settlement or the size of the settlement of the last case you
20:11
had or the last verdict you got. You know, I, I.
20:15
Represent lawyers who've gotten 10, twenty, $50 million
20:18
verdicts. Does that mean you need to have
20:20
$50 million in, in insurance? No, but it certainly means you
20:23
need probably need to have more than 1,000,000.
20:26
You might want to have 5 or 10 million.
20:28
So and then same with family law lawyers or whatever it is.
20:31
What are the size? What is the size of the cases
20:34
that you're handling and use that as a barometer for making a
20:38
determination as to how much coverage you need to have.
20:41
If you have more than one lawyer, you know things, things
20:44
change there as well. If you're with a bigger firm,
20:47
there's other companies that offer different things that that
20:51
can be beneficial to you. If you're over 35 lawyers,
20:54
there's an insurance company called Alas that's a a great
20:57
company to be with. There's Lawyers Mutual insurance
21:01
company, which is a rights state wise, a great company to work
21:06
for. And I mean be insured through
21:08
because all of their claims professionals are attorneys,
21:12
just like with Alas. And that makes a huge difference
21:15
because a their lawyers and they all had experience in in what we
21:20
do before they went into that side of the practice.
21:24
But they just know how to ask the right questions.
21:26
They know how to evaluate a claim appropriately.
21:30
So when it comes time to resolving it, you don't just
21:33
have a claims adjuster out of state dealing with your issue.
21:37
You've got someone here in the state of California and so
21:40
they're just a great company to work for.
21:42
But depending on the amount you need, they may not be suitable.
21:46
And then obviously, price, you know, you've got to weigh all
21:48
these factors, but I do think you get what you pay for.
21:53
So if you pay a little bit more, but the company's going to
21:57
provide you a better service down the line.
21:59
And of course, everyone thinks they're never going to get sued.
22:01
And every client who I haven't represented for calls me says
22:04
this is the first time this has happened in 43 years.
22:07
You know, my response to that is it's the cost of doing business,
22:10
OK? Getting sued is the cost of
22:12
doing business. It's not a reflection on you as
22:14
a person, you as a lawyer, anything.
22:16
It's just going to happen. So you've got to weigh all those
22:20
different things and what you want.
22:23
Some people just say they want the cheapest, OK, you know,
22:27
there's companies that are clearly going to be cheaper than
22:29
others. You're you're going to get the
22:31
same amount of coverage. But if there's a claim certain
22:36
carriers handle things very differently than others.
22:38
And there's a lot of great nationwide carriers out there
22:42
that don't have people in the state of California.
22:44
So I just kind of use Laura's Mutual as an easy example
22:46
because they are here and you get that benefit.
22:48
But there's plenty of larger companies that that right for
22:52
lawyers nationwide, and they bring different things to the
22:55
table. There are a couple other things
22:57
that I've seen in policies over the years that seem to be things
23:01
that you can, you know, choose to pay more for if you'd like.
23:04
And those are things like a consent clause, meaning it
23:06
requires your consent to resolve the case.
23:10
Things like attorney selection, meaning you have a right to say
23:15
within a panel or within a price range, you have a right to pick
23:18
your attorney and burning limits.
23:20
Yeah, yeah, every LPL policy is good consent policy.
23:24
So lawyers, you have, you have the absolute right to consent or
23:28
not to a settlement. We can get into a whole
23:32
conversation about hammer claws and things like that.
23:34
But but just know you, you have the right to consent and they
23:38
all burnt. So you no matter if you start
23:42
with a million, if you go all the way to trial, you might have
23:46
200,000 left depending on how litigious the case is.
23:49
And then any excess is going to be on the insured lawyer if
23:53
there's a verdict. So you've got to understand that
23:56
when you're choosing your amount and also there's things to look
24:00
for. A lot of carriers offer a no
24:03
deductible 25,000 or 50,000 reimbursement policy for State
24:08
Bar matters. So if you get referred to the
24:11
State Bar, which is just skyrocketing, the amount of
24:15
State Bar matters that my firm's handling over the last 20-4
24:18
months, it has gone up 10X at least.
24:22
I mean, it's just it's a growing part of our practice because a
24:26
lot of people are reporting lawyers of the State Bar and the
24:29
State Bar is following up on every single one of them.
24:32
So it's a nice thing to look for is one of those reimbursement
24:35
policies and some of them will only handle formal proceedings,
24:39
some of them will only handle pre formal proceedings.
24:42
So you just got to look, read the fine print and those are
24:46
great to have. And then as far as selection of
24:48
council goes, depending on the type, the carrier, they
24:53
generally have a panel. My firm does business with
24:57
virtually all of the carriers. And if we're not on panel and
25:00
you want to use us, generally speaking, the carrier will be
25:03
amenable given, you know, if they look at our website or my
25:06
bio, they can see this is all we do.
25:09
But even before that, when you get insurance, you can make a
25:11
request to write Nemasec and coal into your policy.
25:15
So it's clear, just upfront, look, if there's something
25:18
happens, Nemasec and coal is representing me, This is, this
25:21
is how it's going to go. And we were written into dozens
25:24
and dozens of firms policies throughout the state just to
25:27
make it that much easier. And because it's competitive,
25:32
they a lawyers can get good pricing, you can get a good
25:35
product that suits your needs and you can should be able to
25:39
get what you want when something happens, which is the firm that
25:42
you want to handle it for you. It's a great question that most
25:45
people probably don't think about because they don't think
25:49
it's ever going to happen to them.
25:51
But if you're doing your due diligence on the front end when
25:54
it does happen, because it will, you've got everything, all your
25:57
boxes checked. And then you come to my door and
26:00
I say to all my clients, I'm only going to bother you if I
26:04
need you. Go do your work.
26:06
Go make your money, go be a lawyer.
26:08
This is why you have insurance. You're you're with us, you're in
26:11
good hands. And I think if they, if you're
26:14
with a firm of less experience, you're going to have a, you're
26:17
going to feel that. You're coming about people
26:19
coming in either without a coverage or or or not the right
26:23
coverage. I I think of the number of times
26:26
I've had clients, potential clients come in where they, they
26:29
have like a very low underinsured motorist coverage
26:33
and, and you have this conversation with them of like,
26:35
yeah, well, you went cheap. And unfortunately it's, it's
26:40
come home to roost. It's interesting how while we
26:44
say that to to a lot of our clients, we don't, a lot of us
26:49
don't have that shift in our brain.
26:50
We, we do the exact same thing. We're looking at our premiums
26:53
that our clients are doing when they when they have that low
26:56
UIM. Yeah.
26:58
And I mean, California, you can get $100,000 policy as a lawyer.
27:04
I don't, I've never had one for less.
27:06
And I've got a couple of those cases and I say, what are you
27:10
going to do with this? You know, and those burn, you
27:13
know, so it's maybe some of them will have an expense reserve up
27:16
maybe 50 grand before it'll burn depending on the company.
27:21
So you, you have that benefit. But, but in this day and age,
27:24
$100,000 in a legal malpractice case, you can't defend it.
27:27
And so you better hope almost that they they take the 100
27:31
unless it's just a really small case because otherwise you're
27:34
going to you're facing excess exposure from day one.
27:38
You put out two things that I want to follow up on and and one
27:41
was hammer claws and the other was the increase in State Bar
27:44
discipline proceedings. And I know they're very, I'm
27:47
just, I'm putting a pin in one of them.
27:49
Which one is the natural path do you think for our conversation
27:53
now? State Bar proceedings, I think.
27:56
OK. You said that you're seeing a
27:58
lot more of those. I imagine they're a little bit
28:03
different in terms of the handling.
28:05
And what if somebody receives something like that, what they
28:08
should do? And do you have any best
28:10
practices? You know, you, you get a letter,
28:13
we've gotten a complaint. What should that lawyer do?
28:16
It's a scary letter to get because I on the very front page
28:20
of the letter in big font, it says your State Bar license is
28:24
at risk. So it's not like a warm and
28:27
fuzzy letter that you get. The first thing you should do is
28:32
go to someone who handles these types of things.
28:36
It's going to cost you money, but our firm specializes in
28:40
this. We have myself, Ellen Pansky's,
28:44
with our firm. She exclusively handles State
28:47
Bar matters. You know, just like using US for
28:50
legal malpractice cases. You want to use a specialist.
28:54
The thing I see a lot is lawyers think they can just handle it on
28:58
their own and maybe they can't. But is that the best thing to
29:02
do? Not necessarily because we work
29:04
with these investigators. We work with the Office of Chief
29:08
Trial Counsel. So, you know, you know, these
29:10
people and that that makes a difference down the line as far
29:15
as how things go, getting certain extensions, you know,
29:19
teeing things up appropriately to try and get it resolved
29:24
before formal charges are brought.
29:27
So it's, and often times we step in, in the second round of
29:32
letters, right, 'cause the lawyers tried to do it
29:34
themselves on the first round and that didn't go so well.
29:37
Because maybe it's a trust accounting issue and they're
29:40
going to try and not turn over their trust account documents or
29:43
handle it in a different way or spin it in a certain way.
29:46
And depending on the questions they're asking, you know, just
29:50
putting your cards on the table and explaining what went down is
29:53
the best way to get it resolved. I want to I want now return to
29:57
hammer claws and, and what we may be out of sequence in terms
30:00
of of how one handles a case is it's a cool phrase.
30:03
I just I, I need the answer to to what it means to you in, in
30:06
in your world. And and when you said one could
30:09
have a a lengthy discussion on it, what, what is it and how how
30:13
is it used? If you as the lawyer are, let's
30:17
say you've got a $2,000,000 policy and you know there's a
30:22
settlement offer for a million dollars and you refuse to
30:26
consent to that settlement offer that's, that's made.
30:31
Essentially, if if you, you as the insured decline a reasonable
30:35
settlement in the case goes to trial, the insurer's
30:39
responsibility for covering any additional costs can be reduced
30:44
or potentially eliminated. And so those those are
30:48
potentially, they're in a lot of professional liability policies.
30:53
And so while you can consent and not consent to a settlement, you
30:57
need to be aware that if you don't consent and the carrier is
31:01
saying, look, you need to settle this case, they can invoke that
31:05
clause and then the lawyers taking on a little bit more
31:10
risk. I have never actually seen that
31:14
play out through a trial where that has occurred.
31:19
I've definitely been in a lot of heated discussions between the
31:26
insured and the carrier because my job is, it's so you know,
31:30
that I deal with the tripartite relationship.
31:33
You know, I, I, I vigorously defend the insured, but I also
31:36
have a fiduciary duty that I owe to the carrier to objectively
31:41
advise them about their potential exposure.
31:45
But I'm not going to get involved with fighting over
31:49
whether someone should consent to settle or not.
31:51
It's their decision and the carrier's going to do what
31:53
they're going to do. And I'm just going to continue
31:55
to defend the case the same way and often do talk about the
32:00
positives and negatives. So, and at the end of the day,
32:04
the insured has come around and resolved the case because that's
32:08
just the right thing to do. I mean, I think you have
32:11
insurance for a reason. Let it protect you.
32:14
Often times I get calls from clients who say I don't want to
32:17
tender this, I don't want to tender this.
32:19
I just, it's going to go away and I say tender it.
32:22
You have insurance for a reason. Everyone worries about their
32:24
premiums going up and I understand all these things, but
32:27
you know, you're paying for something, use it.
32:30
And if something resolves very early for no money or little
32:35
money, it's not going to have some big impact unless it's your
32:37
4th, 5th or 6th claim. There's the, the flip side of
32:41
the hammer clause is the scenario where the there's a
32:46
settlement offer the insured dealers like hey, Get Me Out and
32:54
the carrier is reluctant in that tripartite relationship.
32:58
What position do you have and and how do you handle that?
33:02
So when that happens, it just depends on my analysis.
33:07
And you know why I think a lot of insurance companies like
33:12
working with us, just like lawyers working with us, is I
33:16
don't put shade on things. I call it like I see it.
33:20
Everyone in my firm does. We objectively analyze a case.
33:23
Just cause a lawyer wants to resolve it and move on and
33:26
doesn't want it hanging over their head is not a reason to
33:30
pay money. And so when that happens,
33:34
obviously the carrier has to make an informed decision based
33:38
on the analysis that that we prepare.
33:40
And if the carrier says, look, Mr. misses lawyer, I'm not going
33:44
to settle this case, we're going to proceed based on the
33:47
analysis, then we, we proceed and it can then there's I mean,
33:54
we, you can sort of bring up Kumas council related issues and
33:58
they're obviously down the line, bad faith can come into play if
34:01
there was an adverse verdict. But we analyze the case
34:07
objectively. And so we, we go through a
34:10
detailed ongoing process of, of creating an initial litigation
34:16
report and plan and then updating that every thirty, 6090
34:21
days as things change. So I mean, case might be one way
34:25
on day one and on day 400 completely different and changed
34:30
all along the way in between those two points in time.
34:32
So, you know, it's, it's our job to just be objective advocates
34:39
for the case itself. And I've been in that situation
34:42
a number of times. And again, they, they, they
34:46
generally resolve and it just might take a little bit more
34:51
time to get the carrier there or get to a right number.
34:57
But it is a scenario we find ourselves in.
35:01
The the lawyers who handle these cases on the plaintiff side, do
35:07
you find that it's a lot, it's a small pond, lot of repeat
35:10
players? Or are you frequently running
35:12
into new and different fish? Small pond, there's, there's
35:17
some great plaintiffs lawyers out there who we deal with
35:20
regularly. And then there's, there's one
35:22
offs like anything. And, and obviously we, we know
35:27
who we're dealing with. And so if we're dealing with a
35:29
repeat player and just just because our repeat player
35:32
doesn't mean they're good, but there are, there are very good
35:35
ones and we know what we're dealing with and that plays a
35:39
role in how we deal with the case.
35:42
I mean, that makes its way into a litigation planet.
35:44
And if you're not putting that in or evaluating that on either
35:48
side of the aisle and whatever your practice area is, that's
35:51
crazy because who your opposing counsel is is one of the most
35:56
important things about a case. I, you know, if so, if I'm
35:59
dealing with someone I've never heard of and will do research
36:02
and look into cases they've handled.
36:04
And if they don't mention that they handle professional
36:06
liability on their website, I know what I'm dealing with, you
36:09
know, so I know a summary judgement motion might be a
36:12
little easier on this particular case because they don't
36:14
necessarily know the case law or the issues that are going to
36:17
come up. First is one of my colleagues
36:19
who I deal with routinely where I say this is going to be a
36:21
tough one because A, they only take good cases.
36:24
B They're very good lawyers and they know how to try a case, so
36:29
you got to approach it with that in mind.
36:32
Thank you for listening and please join us next week as we
36:35
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36:38
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36:40
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To all of you doing justice out there.
36:51
Happy hunting.