Protecting the C-Suite: A New Era in Corporate Risk Management"

“By Kevin Quinley, CPCU, ARM, AIC

Is your CEO safe? The assassination of UnitedHealthcare's Brian Thompson exposed a chilling gap in corporate security and sent shockwaves through the business world. His tragic death raises critical questions about how companies protect one of their most valuable assets – their leaders.

UnitedHealthcare's shareholder value has reportedly plummeted by $45 billion since Thompson's killing. This staggering financial loss tragically quantifies the importance of protecting key executives integral to a company's success and market valuation.

In stark contrast to UnitedHealthcare's apparent lack of security for its CEO, other major corporations invest heavily in executive protection:

• Meta (formerly Facebook) spent $24.4 million on security for Mark Zuckerberg and other top executives in 2023.

• Alphabet (Google's parent company) allocated $6.8 million for personal security services for CEO Sundar Pichai in 2023.

While UnitedHealthcare's security spending remains undisclosed, the fact that Thompson was walking alone in Manhattan suggests a significant disparity in security measures compared to other large corporations. This killing raises serious concerns about whether UHS adequately assessed and mitigated the potential risks to its CEO, especially given the controversies surrounding the healthcare industry, from drug pricing to insurance coverage disputes.

Potential D&O Liability Exposure

Shareholders and stakeholders could view Thompson's lack of apparent security measures as a breach of reasonable care by UnitedHealthcare's directors and officers. They may argue that:

1. Failure to Protect a Key Asset: The Board failed to adequately protect the CEO, who is crucial to UHS's performance and shareholder value. This perceived failure could breach a fiduciary duty to act in the Company's best interests.

2. Negligent Risk Assessment: The Board failed to adequately assess and mitigate potential risks to executive safety, especially given the high-profile nature of the healthcare industry and the potential for targeted violence against its leaders.

3. Deficient Corporate Governance: The Directors and Officers failed to align security practices with industry norms set by other major corporations, demonstrating a lack of due diligence and oversight in a critical area of risk management.

These claims could find support in legal precedents], where courts have held directors and officers liable for failing to exercise reasonable care in protecting company assets and mitigating foreseeable risks. (Caveat: I am a risk management commentator, not an attorney.)

Implications for Corporate Governance

This tragic event should serve as a wake-up call for boardrooms across all industries, particularly for publicly held companies:

1. Increased Security Budgets: Companies may significantly increase their executive security budgets to mitigate risks and potential liability. Budgets could include investments in personal security personnel, advanced security technology, and comprehensive security training.

2. Robust Risk Assessment Protocols: Boards must implement more robust risk assessment protocols addressing executive safety. These protocols should consider the specific threats faced by executives in their industry, including potential threats related to their public profile, controversial business decisions, and the overall security environment.

3. Security as a Central Governance Issue: Executive protection must become a key corporate governance consideration, integrated into overall risk management strategies. Boards should regularly review security protocols and ensure they align with best practices and evolving threats.

4. Meeting Shareholder Expectations: Investors may begin scrutinizing companies' executive security measures as part of their due diligence process. Companies should prepare to disclose their security policies and demonstrate their commitment to executive protection.

5. Insurance Considerations: D&O insurance policies may see changes in coverage and premiums related to executive security risks. Companies should review their insurance policies to ensure adequate coverage for potential liabilities arising from security breaches or incidents.

Beyond Bodyguards: A Holistic Approach to Security

Effective executive protection goes beyond simply hiring bodyguards. Companies must adopt a holistic approach to security that encompasses:

• Cybersecurity: Protecting executives from online threats, including harassment, doxing, and data breaches.

• Travel Security: Ensuring safe travel arrangements and providing security measures domestically and internationally during travel.

• Home Security: Assessing and enhancing security measures at executives' residences.

• Crisis Management: Developing and regularly practicing plans to respond to potential security incidents.

Call to Action

Brian Thompson's assassination is a stark reminder of the vulnerabilities facing high-profile executives. Boards and management teams must reassess their executive protection approach to safeguard their leadership and shareholder value in an increasingly unpredictable world. Prudent executive security consciousness merits a proactive, comprehensive, and well-funded approach to security that prioritizes the safety and well-being of company leaders.

"Michael Clayton" and the Tao of Product Liability Defense

Inflatable penile implants started it all.

After nine years of working for a ginormous third-party claim administrator, I eagerly sought career advancement and change. Handling medical malpractice claims for a teaching hospital system in the Washington DC area gave me an intoxicating taste for liability claims against hospitals and healthcare providers. Plotting my escape from TPA Land, I interviewed for a Claims Manager job at a specialty "captive" insurer who wrote product liability coverage for medical device manufacturers. It needed help.

The captive’s fronting insurer had bungled claim files for years, contesting legit claims and paying spurious ones. Courthouse step surprises abounded. Defense firms complained about slow payments. Reserves oscillated like an EKG strip, with no rhyme or reason. Hence, this specialty carrier, a Bermuda captive, needed a full-time claim professional to right the ship. I was looking for a medmal claim position, but this job involved medical equipment and technology. Close enough!

Diving Into Mass Tort Product Liability – A Stiff Challenge

The biggest claim problem this specialty carrier had was — no joke — over 100 claims around the country with plaintiffs suing a manufacturer of inflatable penile prostheses. (This time frame was pre-Viagra.) I was offered the job and took it, which involved coordinating claims-handling and litigation defense with the product's manufacturer. I later joked privately that "The Pump" technology was better suited to Reebok basketball shoes than urological applications.

Penile implant mass torts were just the beginning. Over the next two-plus decades, I handled and managed mass tort claims involving breast implants, TMJ jaw implants, latex gloves, electro-surgical devices, hip implants, stents, and implantable mesh graphs. Class actions and mass tort cases became my bread and butter.

So, not surprisingly, I did a double-take when recently re-watching "Michael Clayton," a 2007 underrated film and one of my top-10 all-time favorites. If you haven't seen it, I encourage you to do so, whether you are in the insurance and claims business or not. It is an under-the-radar classic. My background in product liability claims quickly tuned me into this movie's narrative.

Cinematic Parallel

When I settled in to watch "Michael Clayton." I didn't know that the movie centers on a product liability case, a class action involving a weed killer and a mythical Nebraska-based company called U-North. 

Highlights of the plot that may interest claim folks:

·         (SPOILER ALERT) Bad corporate documents sink a defense (though how did these stay suppressed and secret for so long?)

·         During a plaintiff's deposition, the lead defense counsel strips down to his tidy whities, adding a new meaning to the term "legal briefs." Also, why did Tim Wilkinson play the lead defense counsel instead of, say, Charlize Theron?

·         A partner at Kenner, Bach & Ledeen dances a celebratory jig when the firm hits 30,000 billable hours in defending the weed killer. Yippee!

OK, it's Hollywood.   I get it. Nevertheless, if you work in product liability defense, you may get a hoot from "Michael Clayton."  Step into the shoes of a jaded "fixer" for a powerful Big Law firm as he navigates the murky waters of product liability and mass torts.

Legal Drama

George Clooney's masterful performance dramatizes high-octane product liability battles, where "smoking gun" documents can make or break a case. Explore the nuanced portrayal of the immense pressures, ethical crossroads, and the often-overlooked human element within the behemoth that is the legal industry. 

At the heart of managing mass tort product liability claims lies the pivotal role of critical documents. These are the foundations on which defendants craft legal strategies. Corporations win or lose cases based on whether documents are exonerating or incriminating. In "Michael Clayton," a newly disclosed memo reveals upper management's long-ago knowledge of the carcinogenic health dangers of U-North's herbicide. The memo's discovery shows how a single document can tip the scales and crater product liability defenses. 

Sink or Swim Through Discovery

Moreover, the "smoking gun" document takes center stage in the film, highlighting its critical nature in proving liability. When concealed or manipulated by corporations, these documents possess the power to expose negligence or deliberate wrongdoing. Uncovering such evidence becomes a plaintiff's relentless quest, as depicted by Clayton's dogged investigation to unearth the truth behind U-North's actions. The film underscores the high stakes in obtaining these documents and the lengths parties will go to in order to suppress or destroy them. It does not, however, explain how the discovery process and document production failed to unearth a damning memo after years of litigation.

Clayton finds himself part of a law firm complicit in defending corporate interests at any cost, including manipulating legal proceedings and exploiting loopholes. The film critiques the inherent conflict of interest within the legal system, where financial gain predominates over pursuing justice.

Hollywood Drama

Yet, while the film accurately portrays certain aspects of the legal landscape, it also tends to exaggerate and sensationalize certain elements. "Michael Clayton" portrays large corporations as nefarious entities willing to resort to covert operations to limit their legal liability exposure. While corporate malfeasance certainly exists, the movie's depiction overdramatizes the complexities of corporate behavior and legal proceedings.

Further, the film's cloak-and-dagger operations stray into the realm of fiction, painting an unrealistic picture of the legal world. While intrigue and drama are inherent in high-stakes litigation, the extent to which "Michael Clayton" portrays covert activities is sensationalistic.

"Michael Clayton" offers a compelling exploration of the challenges of managing mass tort product liability claims. It underscores the importance of crucial documents and pursuing "smoking gun" evidence while highlighting the suppression of harmful documents. We should view "Michael Clayton's" tendency to villainize large corporations and depict unrealistic cloak-and-dagger operations with a critical eye. While the movie dramatically portrays the legal arena, it is essential to separate fact from fiction when depicting mass tort litigation.

"Michael Clayton" and the Tao of Product Liability Defense

Inflatable penile implants started it all.

After nine years of working for a ginormous third-party claim administrator, I eagerly sought career advancement and change. Handling medical malpractice claims for a teaching hospital system in the Washington DC area gave me an intoxicating taste for liability claims against hospitals and healthcare providers. Plotting my escape from TPA Land, I interviewed for a Claims Manager job at a specialty "captive" insurer who wrote product liability coverage for medical device manufacturers. It needed help.

The captive’s fronting insurer had bungled claim files for years, contesting legit claims and paying spurious ones. Courthouse step surprises abounded. Defense firms complained about slow payments. Reserves oscillated like an EKG strip, with no rhyme or reason. Hence, this specialty carrier, a Bermuda captive, needed a full-time claim professional to right the ship. I was looking for a medmal claim position, but this job involved medical equipment and technology. Close enough!

Diving Into Mass Tort Product Liability – A Stiff Challenge

The biggest claim problem this specialty carrier had was — no joke — over 100 claims around the country with plaintiffs suing a manufacturer of inflatable penile prostheses. (This time frame was pre-Viagra.) I was offered the job and took it, which involved coordinating claims-handling and litigation defense with the product's manufacturer. I later joked privately that "The Pump" technology was better suited to Reebok basketball shoes than urological applications.

Penile implant mass torts were just the beginning. Over the next two-plus decades, I handled and managed mass tort claims involving breast implants, TMJ jaw implants, latex gloves, electro-surgical devices, hip implants, stents, and implantable mesh graphs. Class actions and mass tort cases became my bread and butter.

So, not surprisingly, I did a double-take when recently re-watching "Michael Clayton," a 2007 underrated film and one of my top-10 all-time favorites. If you haven't seen it, I encourage you to do so, whether you are in the insurance and claims business or not. It is an under-the-radar classic. My background in product liability claims quickly tuned me into this movie's narrative.

Cinematic Parallel

When I settled in to watch "Michael Clayton." I didn't know that the movie centers on a product liability case, a class action involving a weed killer and a mythical Nebraska-based company called U-North. 

Highlights of the plot that may interest claim folks:

·         (SPOILER ALERT) Bad corporate documents sink a defense (though how did these stay suppressed and secret for so long?)

·         During a plaintiff's deposition, the lead defense counsel strips down to his tidy whities, adding a new meaning to the term "legal briefs." Also, why did Tim Wilkinson play the lead defense counsel instead of, say, Charlize Theron?

·         A partner at Kenner, Bach & Ledeen dances a celebratory jig when the firm hits 30,000 billable hours in defending the weed killer. Yippee!

OK, it's Hollywood.   I get it. Nevertheless, if you work in product liability defense, you may get a hoot from "Michael Clayton."  Step into the shoes of a jaded "fixer" for a powerful Big Law firm as he navigates the murky waters of product liability and mass torts.

Legal Drama

George Clooney's masterful performance dramatizes high-octane product liability battles, where "smoking gun" documents can make or break a case. Explore the nuanced portrayal of the immense pressures, ethical crossroads, and the often-overlooked human element within the behemoth that is the legal industry. 

At the heart of managing mass tort product liability claims lies the pivotal role of critical documents. These are the foundations on which defendants craft legal strategies. Corporations win or lose cases based on whether documents are exonerating or incriminating. In "Michael Clayton," a newly disclosed memo reveals upper management's long-ago knowledge of the carcinogenic health dangers of U-North's herbicide. The memo's discovery shows how a single document can tip the scales and crater product liability defenses. 

Sink or Swim Through Discovery

Moreover, the "smoking gun" document takes center stage in the film, highlighting its critical nature in proving liability. When concealed or manipulated by corporations, these documents possess the power to expose negligence or deliberate wrongdoing. Uncovering such evidence becomes a plaintiff's relentless quest, as depicted by Clayton's dogged investigation to unearth the truth behind U-North's actions. The film underscores the high stakes in obtaining these documents and the lengths parties will go to in order to suppress or destroy them. It does not, however, explain how the discovery process and document production failed to unearth a damning memo after years of litigation.

Clayton finds himself part of a law firm complicit in defending corporate interests at any cost, including manipulating legal proceedings and exploiting loopholes. The film critiques the inherent conflict of interest within the legal system, where financial gain predominates over pursuing justice.

Hollywood Drama

Yet, while the film accurately portrays certain aspects of the legal landscape, it also tends to exaggerate and sensationalize certain elements. "Michael Clayton" portrays large corporations as nefarious entities willing to resort to covert operations to limit their legal liability exposure. While corporate malfeasance certainly exists, the movie's depiction overdramatizes the complexities of corporate behavior and legal proceedings.

Further, the film's cloak-and-dagger operations stray into the realm of fiction, painting an unrealistic picture of the legal world. While intrigue and drama are inherent in high-stakes litigation, the extent to which "Michael Clayton" portrays covert activities is sensationalistic.

"Michael Clayton" offers a compelling exploration of the challenges of managing mass tort product liability claims. It underscores the importance of crucial documents and pursuing "smoking gun" evidence while highlighting the suppression of harmful documents. We should view "Michael Clayton's" tendency to villainize large corporations and depict unrealistic cloak-and-dagger operations with a critical eye. While the movie dramatically portrays the legal arena, it is essential to separate fact from fiction when depicting mass tort litigation.

"From Vesuvio's Ashes: Understanding Insurance Through `The Sopranos'"

As is often the case, I was late to the game.

When my sons were teenagers and buzzing about "The Sopranos," urging me to watch the HBO show, the series was more than halfway past its lifespan. I started watching but missed earlier episodes and much of the backstory. During the recent December holidays, HBO launched a "Sopranos" marathon. December 2023 marked the 25th anniversary of the successful launch of that TV series.

"Sopranos" redux nudged me to stream HBO Max and start watching the entire series from scratch, starting with Season One, Episode One. As an insurance guy specializing in claims and now an expert witness, I could not help but notice the subplot of insurance recovery woven into the early episodes of Season One.

"The Sopranos" is a masterclass in storytelling and character development. Less recognized is that it is also a case study in insurance, particularly in business interruption. An early, pivotal storyline revolves around the burning of "Vesuvio," Artie Bucco's popular Italian restaurant patronized by Tony Soprano and his compadres. An unfortunate conflagration (firebombing by Sylvio, perhaps?) and its aftermath offer context for examining how the popular media depicts insurance companies and lessons consumers can take from such portrayals.

In "The Sopranos," the Vesuvio's burning is initially framed as a tragic accident. But as the plot unfolds, it becomes evident that the fire—a total loss to Artie--was a calculated act of arson designed to prevent a mob meeting at the restaurant. This plot twist introduces a peek into the world of insurance claim investigations after a disaster.

A key episode theme highlights that insurance does not cover all losses. There is no "full coverage" despite the frequency of consumers invoking that phrase. Characters in the episode often comment on how insurance fails to compensate for the loss of customers. (Some forms of business interruption do indemnify for loss of customers.)

Uncertainty over insurance recovery is a massive frustration for Artie Bucco, who faces the physical loss of his restaurant and the daunting task of rebuilding and restoring his loyal customer base. His angst highlights a critical aspect of insurance coverage – the distinction between tangible and intangible losses. While insurance policies can cover the cost of physical damage and, in some cases, lost revenue during a shutdown, they often do not directly address the challenge of regaining lost clientele.

"The Sopranos" also delves into the skepticism surrounding insurance payouts. Characters express cynicism about the willingness of insurance companies to pay claims, a sentiment echoed in the real world. The storyline further fuels skepticism when the insurance company hires a second arson investigator to probe the fire's cause and origin. While retaining a cause and origin investigator is routine in suspicious fire cases, this action is depicted as an insurance carrier's stalling tactic, reinforcing a narrative of distrust towards these institutions.

Even so, the reality of insurance, particularly in the context of business interruption, is more nuanced than "The Sopranos" portrays. Business interruption insurance aims to cover not just the costs of rebuilding a business but may also offset revenue lost during a closure period and potentially defray expenses in regaining a customer base post-reopening. It's a critical safety net for business owners, ensuring that a disaster like fire does not bring financial ruin.

The gap between the fictional portrayal and the actual workings of insurance raises several lessons for consumers:

1. Understand Your Coverage: It's vital for business owners to thoroughly understand what their insurance policies cover and what they don't. Understanding your coverage includes knowing the extent of coverage for tangible damage, business interruption, and additional customer loss and recovery clauses. The insurance claim business has a frequently cited abbreviation, RTFP. Roughly translated for a PG-rated audience, it means "Read the Freakin' Policy." Most people don't until loss occurs. At that point, it's too late.

2. Documentation is Vital: In the event of a claim, having comprehensive documentation of losses, expenses, and revenue streams—both pre- and post-incident—can significantly streamline the claims process and ensure fair compensation.

3. Expect Insurer Investigations: Insurance investigations are standard, especially in suspected arson cases. Understanding this process and cooperating fully can expedite the claims process.

4. Manage Expectations: Insurance aims to mitigate financial loss but is not a panacea for all challenges following a disaster. Business owners should have realistic expectations and strategies for rebuilding their customer base independently.

While "The Sopranos" provides an engaging, dramatized view of a business disaster's aftermath, consumers and business owners must separate fiction from reality. Understanding the nuances of insurance coverage, preparing adequately for potential disasters, and maintaining realistic expectations about the role of insurance in recovery are crucial steps in safeguarding the financial stability of any business. As we learn from Artie Bucco's experience, being well-informed and prepared can make a huge difference in navigating the challenging aftermath of business interruption.

 As we bow to "The Sopranos" gritty drama of Season One, it's clear that the line between fiction and reality in insurance is as blurred as the moral compasses of Tony Soprano's crew. While we may not find ourselves in mobster-level drama, the lessons on insurance coverage, claim-handling, and the importance of being prepared are universally applicable.

So, remember, just like a good episode of "The Sopranos," the insurance world presents unexpected twists and turns. Stay informed. Be patient and realistic. Work with an experienced insurance agent. Read your policy, and maybe—just maybe--you'll be better prepared than Artie Bucco.

As Tony Soprano might say, "With all due respect, you don't wanna' end up like a fish out of water when disaster strikes."

Capisce?

15 Tips to Dominate Your Deposition ....

After 20 years serving as an expert witness, some part-time, and the last twelve years full-time, I’ve given about fifty depositions. I have not mastered the art of deposition testimony, but I have learned lessons for myself that may be useful for others. The following is not a comprehensive list, and your mileage may vary:

1. Insist on prep sessions—plural. Insist on at least one, preferably two, preparation meetings or phone/Zoom calls with retaining counsel. Discuss the thorniest issues in the case. (Every case has them.) Resist counsel’s suggestion to bypass this step (“You’re an expert, so I’m sure you know how to handle yourself…”) or a proposal to defer it to the eve of the deposition.

2. Build a discussion agenda. Draft a checklist of topics to cover with retaining counsel, including “thorny questions.” Include mundane issues regarding location, opposing counsel’s questioning style, payment, etc.

3. Be rested. Get a good night’s sleep the night before.

4. Reverse-engineer sufficient lead time for proper preparation. By the time of your deposition, months or a year may have passed since you touched the file or finished your expert report/disclosure. Prepare for the deposition by “turning every page.” Refresh your knowledge and familiarity with the case and the issues. Remember to review your Disclosure or Rule 26 report!

5. Watch for “Motherhood and Apple Pie” questions. Beware questions starting with preambles like, “Would you agree…?” Some call these “Voice of Reason” questions, framed so that, on the surface, only an idiot could disagree. (See Ken Broda Bahm’s excellent blog post: https://yourtrialmessage.com/when-youre-crossed-handle-the-voice-of-reason-questions/?utm_source=rss&utm_medium=rss&utm_campaign=when-youre-crossed-handle-the-voice-of-reason-questions,) Often these are overreaching and overbroad principles that have exceptions and deserve nuance.

6. Reframe nervousness as excitement. It’s natural to feel pre-deposition jitters. Reframe those emotions. Tell yourself, “I’m not nervous – – I’m excited!”  Everyone feels butterflies in their stomach. The key is to make them fly in formation. Remember the words of tennis great Billie Jean King, “Pressure is a privilege.”

7. Allow extra time for transport and logistics. If you’re traveling to a lawyer or court reporter’s office, map out directions, estimate commute time, and allow an extra cushion for traffic, congestion, roadwork, finding parking, etc. Leave ample time to get to the deposition early.

8. Command your space. If you’re giving an in-person deposition, command the space. Walk around the room. Get familiar with it. Check the lighting. Look out the windows. Locate the restroom. Silence your cell phone. Take the initiative and introduce yourself to opposing counsel, the court reporter, and the videographer. Imagine it’s YOUR space, and they’re your guests. Every moment--even those videotaped--you are on stage. (I recommend Amy Cuddy’s book, Presence: Bringing Your Boldest Self to Your Biggest Challenges.”

9. Pause before answering any question. Listen carefully to each question. Answer the question and only the question. Know when to stop.

10. Pack snacks. You don’t know how long the deposition will last. (Tip: Ask retaining counsel for an opinion on this in advance, but don’t consider it gospel.)  Sometimes, provisions will be available; sometimes, they will not. You may decide to break for lunch. Other times, everyone agrees to “power through.” Pace yourself. Manage your energy by requesting a break every 45 to 60 minutes. Bring energy bars, an apple, or bottled water. Better to have them and not need them than to need them but not have them.

11. Don’t expect to have a photographic memory. If opposing counsel asks about documents you don’t recall, ask them to share the document with you to refresh your memory. You’re a subject matter expert, not the reigning North American Memory Champion!

12. Calibrate expectations. Don’t see a deposition as a forum where you will “make your case.” If opposing counsel is skilled, they won’t give you that chance. That opportunity will come at trial, during direct examination.

13. Scour fact witness depositions for potential themes that may arise as opposing counsel questions you. Often, transcripts of corporate representatives and fact witnesses portend the questions or themes you confront in your deposition.

14. As Lady Gaga would say, “Puh, Puh, Puh, Poker Face.”  Keep calm, exercise emotional self-control, and mask any irritation or fatigue.

15. Don’t run for the exit. At breaks and the close of the deposition, be deliberate in packing up and leaving. Through body language or sighs, do not signal that you have been through an ordeal, even if you have! Thank the opposing counsel, the court reporter, and the videographer. You want opposing counsel to come away with the impression that you not only “know your stuff” but also that you’re the type of person jurors will like!

At this point, I must “run for the exit” . . .  to prepare for an upcoming deposition!

You May be a Claims Adjuster If …..

 Comedian Jeff Foxworthy is known for redneck humor, including prefacing jokes with the preamble, "You know if you're a redneck if …"

 No comedian will achieve mainstream success with claim adjuster jokes.  We’re talking about a small, niche audience.  Nevertheless, perhaps we can -- like Foxworthy – consider what makes those of us in the adjusting profession unique. 

 So here goes.  You May be a claims professional if . . .

             You reach for your wallet, just to make sure it’s still there, when you hear a claimant or insured say, “I only want what’s coming to me ….”

             You read about a spectacular, tragic accident in the newspaper or see it on TV and say aloud, “Wow – that’s gonna’ be a big claim!”

             You may be an independent adjuster if you scan The Weather Channel for emerging tropical storms in the Caribbean and yell at the TV, "COME ON, BABY!!"

             Your car bumper sticker reads, “Adjusters get no Release.”

             You know that a Body Shop has nothing to do with a massage parlor.

             You think Flo on the Progressive commercials is hot. 

             You know that a frame-straightener isn’t found inside an optician’s shop.

             You can talk for twenty minutes straight on the pro’s and con’s of aftermarket parts. 

             You use the word “betterment” with a straight face. 

             Finally, you may be a claims adjuster if you post a blog entry with examples of "adjuster humor."

Adjusters – – are Your “Panel Counsel” Litigators or . . . Trial Lawyers?

Say you’re a claims manager or adjuster handling a file that’s just morphed from a claim into a lawsuit. There’s a decent chance that the case will go to trial. You have many defense firms vying for your business who claim to be superb litigators.

In some circles, however, “litigator” really means taking depositions, propounding interrogatories, filing Requests for Production, Motions, Briefs, and generating tons of paper—all as a prelude to phoning the insurer shortly before trial, on the courthouse steps, and urging settlement. The risk-averse adjuster or Claims Manager weighs the downside risk of a runaway jury verdict, extends settlement authority, and resolves the case.

Are you seeking a litigator or a trial lawyer? We tend to view them as synonymous.

They’re not.

In his novel, The Last Trial, author (and attorney) Scott Turow describes a protagonist’s opposing law firm. Almost none of its lawyers had ever tried a case:

They are successful “litigators,” meaning they are skilled in taking depositions and negotiating settlements, but with very limited experience with juries. That makes them a little like adolescent boys in a locker room…. pretending to know a lot about sex.

So, what about your “panel counsel” attorneys” Are they litigators or trial lawyers?

Don’t be lulled into thinking that these are interchangeable terms.

Ten Tips on Getting Your Article Written AND Published ... (Part 1)

Earlier this week I was privileged to serve on a webinar panel sponsored by the CPCU Society. The topic was how to become a published author in its quarterly INSIGHTS publication. In recent years, I have been able to place 10 out of 10 manuscripts in that publication, with number 11 slated for publication this Spring. I'm offering a two-part set of tips for getting published.

These tips apply not just to getting published in CPCU periodicals or in insurance periodicals but in any trade publication. Getting published is an excellent way to establish your credentials as a thought leader in your field, which has multiple career capital advantages.

Here are my first five suggestions:

1. Give yourself permission to write a crappy first draft. Ease the pressure on yourself. View your first draft as a "Beta Version" of your article. Remove your Editor Hat. Don your "Crazy Madman" hat. This mindset frees you to break a deadlock and get words on paper (or on a computer screen). We procrastinate, in part, because of perfectionism. We want to write the perfect article right out of the gate. Assure yourself it's okay to write an imperfect first draft.

2. Eat the elephant one bite at a time. We get frozen into inactivity and procrastinate by wondering, "Where do I even begin?" Instead, compartmentalize. Break the article down into specific, manageable chunks. One writing session can focus on one discrete idea. View each idea as a Lego block. Save each one as an individual file. Later, when you accumulate enough Lego blocks, you can start fitting them together and deciding on a sequence. Deconstruct individual themes or ideas of your article into separate writing sessions or modules. "How does one eat an elephant?" One bite at a time! Shrink the size of your world and assignment to just you and the computer screen in front of you.

3.       Create subfolders for each part of the article. Eating an elephant "one bite at a time" involves creating individual word processing files for each theme or section of your article. This keeps separate ideas discrete. Your article may have five or six or more significant themes or areas. Maybe more, maybe less. Create a Word document for each of them, using abbreviations as appropriate in your subdirectory. During each writing session, develop one of these ideas each day to get your thoughts on paper. You can always merge, edit, change, reword, delete, or polish them later. Do not think about writing an article. Write modules instead!

4. Proofread! Run your article draft through a spellchecker but realize that this will not catch all bloopers. Have another person read your draft with a red pen or pencil. (More on this later.)

5. Speak -- don't write. For twenty-plus years, most of my "writing" consisted of dictating into a computer microphone, using a speech-to-text software tool, Dragon Naturally Speaking. (I "wrote" this article using dictation software.) Although many would-be writers lament writer's block. I've never heard of anyone afflicted with "talker's block." Proficient typists can keyboard 60-70 words per minute. However, speaking at an average pace puts cranks you up to around 130-140 words per minute. You get more text on the page by talking into a microphone than by typing.

Stated for part two of this article and more tips on how to position your manuscript for publication!

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Thanks for reading. I’m an insurance consultant who helps clients nationwide improve case outcomes through expert analysis and testimony (usually, but not always on) high-value claim disputes.  If you have a comment, a request for a future blog topic, or a concern about a pending case, please contact me at kevin@kevinquinley.com.  

The Path to Becoming an Expert Witness

I often hear the question: “After a career with Crawford & Company and two specialty insurers, how did you end up being an expert witness?”

True confession: becoming an expert witness was not a career path I planned. It was through happenstance and accident. There was no Grand Design.

Corporate Life

Some context: in the early 2000s, I was a Senior VP of Claims for a specialty insurer in the Washington DC area. I started getting phone calls from lawyers and firms wanting to hire me as an expert witness in bad faith litigation. I guess that this was due to my industry visibility.

Hitting the Radar Screen

I had written hundreds of trade publication articles on insurance, claims, and litigation management. I had written ten books on various aspects of claims-handling and insurance. I served as a Contributing Author on multiple IIA textbooks as part of its continuing education and designation programs. I gave many presentations at industry seminars and events.

I declined most overtures. I had a full-time demanding job as a corporate claim executive. That absorbed my energy sufficiently. But I did accept a few cases on a "moonlighting" basis, working on them at night and on weekends.

This continued for about ten years.

Fast forward to 2008.

Enough of Corporate Life!*

I had left the specialty company in the DC area to work for a competitor, a start-up subsidiary of a Fortune 500 insurance company. By 2011, I had logged 30+ years in a corporate environment. I had been declining multiple opportunities to serve as an expert witness. My wife kept nudging me toward setting out on my own, asking, "Would you ever consider going out on your own? You're turning away so much business."

I pooh-poohed that idea for years.

Leave the corporate womb?

Say `goodbye’ to benefits and year-end bonuses?

No way!

Stepping Out With Faith . . . and Fear

After a while, like many attorneys and others who develop an entrepreneurial itch, I made the leap of faith from the corporate womb to launch a full-time claim consulting business. Initially, it was terrifying. I formed Quinley Risk Associates out of an interest in becoming an entrepreneur and from fatigue from the corporate environment. To see if I can work self-employed full-time as a claim consultant.

My claim consulting boils down to being an expert witness. It has worked out.

What I don’t miss about corporate life:

• fixed schedules,

• pointless meetings without agendas

• office politics,

• flavor-of-the-month management fads pushed by bosses who just read a hot-selling business book,

• corporate reorganizations,

• bureaucracy,

• mandatory off-site retreats and “team building” exercises

• performance reviews, or

• Home Office diktats.

It was initially terrifying to leave the corporate safety net, but I can happily report that it has worked out great. I've never looked back with regret. When I made the leap, I had two open cases pending. Within three weeks, I received a new assignment: a plaintiff-side case involving a negligence claim against a third-party claims administrator on behalf of a trucking company, claiming that the TPA mismanaged its workers compensation losses.

That boosted my spirits.

I strive to do a good job on each case, with high quality, careful preparation and hitting all deadlines. As a result, word-of-mouth referrals have generated a flow of assignments.

I’m now in year twelve of doing this work full-time.

But — like falling into the insurance claim field — it wasn’t part of any scripted plan or career path I had mapped out. It has been a way to monetize claims expertise as a solo entrepreneur.

Likewise, it can allow you to combine an academic lifestyle with a corporate executive's financial security.

To be sure, there are pros and cons that come from transitioning from corporate employee to solo entrepreneur, but that’s a topic for another blog post.

You can do it, too!

If you have subject matter expertise in claims or any insurance-related domain, consider expert witnessing as a professional path if the corporate grind has lost its appeal.

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Thanks for reading! I am an insurance consultant who helps clients nationwide improve case outcomes through expert analysis and testimony in (usually, but not always) high-value claim disputes.  If you have a comment, a request for a future blog topic, or a concern about a pending case, please contact me at kevin@kevinquinley.com.  Please visit my website, www.claimscoach.com, to SUBSCRIBE to future issues of The Claims Coach blog.

My Top Ten Books of 2022

I love to read.

Annually at this time, I list my favorite books that I read during the year. I’ve logged 73 books read since January 1st and will probably have one or two more to round out the year.

Here is a subjective list of the books I enjoyed most in 2022.

Two are by authors I follow on LinkedIn (Ross Guberman and Jay Harrington). Although their books are aimed at attorneys, I find in them shovelful loads of actionable insights applying to my (non-lawyer) work as an expert consultant on insurance claim-handling.

Drumroll, please. My Top Ten list for 2022:

1.     “Dopamine Nation: Finding Balance in the Age of Indulgence” by Anna Lembke
2.     “Empire of the Scalpel: The History of Surgery” by Ira Rutkow
3.     “Sweat: A History of Exercise” by Bill Hayes
4.    "The  Earned Life: Lose Regret, Choose Fulfillment” by  Marshall Goldsmith
5.     “The Productivity Pivot: Build a Profitable Legal Practice By Selling Yourself One Hour Every Day” by  Jay Harrington
6.     “Point Taken: How to Write Like the World's Best Judges” by Ross Guberman
7.     “Scars and Stripes: An Unapologetically American Story of Fighting the Taliban, UFC Warriors, and Myself" by Tim Kennedy
8.     “What Doesn't Kill Us Makes Us: Who We Become After Tragedy and Trauma” by Mike Mariani
9.  "The Future Is Analog: How to Create a More Human World” by  David Sax
10. “How to Take Smart Notes: One Simple Technique to Boost Writing, Learning and Thinking – for Students, Academics and Nonfiction Book Writers” by Sönke Ahrens

What have been YOUR favorite books in 2022?

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Thanks for reading. I am an insurance consultant who helps clients nationwide improve case outcomes through expert analysis and testimony (usually, but not always on) high-value claim disputes.  If you have a comment, a request for a future blog topic, or a concern about a pending case, please contact me at kevin@kevinquinley.com.