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If it's more than 30 minutes old, it's not news. It's a blog.

Friday, September 24, 2004

Defective institutions hire defective counsel


Failed institutions will generally hire failed counsel. If there's a communication, understanding, or listening problem driving the problem at the lower level, you can be sure the counsel isn't going to understand something. Indeed, the very problems driving an "unresolved issue" are related to the same issues that outside counsel would expect to suffer.

The core issues relate to a failure to adequately plan, train, and assess the environment prior to interacting with the public-client. The same institutional failures [ineffectively plan, communicate, and solve problems in house early], could reasonably be expected to occur when the institution elevates the issue.

The net result is that a failed institution will simply bring in more failed institutions and parties to do more of what isn't working: Continue to ensure communication with outside counsel is neither timely, proactive, or effective.


We discuss the problematic institution and identify the tendency of failed institutions to act as a magnet for institutional failure. At each point along the way, we find that the attorney's defects closely match the institutional failures.

Ineffective logic

This is one of those examples where an attorney, when examined, suddenly starts skipping in their logic. Rather than simply accept the point, we have an interesting "discussion," that shows evidence they really missed the point.

An interesting method to evaluate an attorney is to see how quickly they miss the point, or miss the forest for the trees.

Negotiation warning

The trick for the public is to identify prior to first engagement those institutions and counter-parties that are most likely to engage in ineffective negotiations.

One interesting method of avoiding the issue it to argue the wrong point. Let's consider an example where the "basis for disagreement" is not only irrelevant, but actually misrepresented.

Rather than simply say, "Hmmm...good point," one lawyer shows they'll argue with a client by suggesting the initial analysis is flawed. Yet, let's consider the "facts" -- not that lawyers need facts to make a point.

Indeed when the public has shown and can demonstrate good faith efforts to reasonably settle a dispute, but opposing counsel-party continues to stick to unreasonable positions based on irrelevancies, the court takes a dim view on failed settlements. Especially when the basis for "inaction and non-settlement" are on trivialities.

Stop 1 Using a mirror.

The courts quickly discern whether counsel is responsive to reasonable requests and statements. This is why documentation is important. Counsel will assert during negotiations positions that the courts would otherwise find absurd.

Rather than apply the statement to themselves, it is noteworthy how an attorney turn the situation around and accuse the client of engaging in behavior that the attorney is actually engaging in.

One example is for the attorney to not listen, understand, or digest the core issue being presented, and then create the illusion that "a disagreed-with" issue is the core conclusion to be argued.

This quote is evidence of a very troubled person:

The biggest problem with your critique is that it's based on incorrect facts.

Congratulations, does this actually do anything to demonstrate understanding of the core issue? On the contrary, we should not be surprised why both counsel and the institution have failed. They've both demonstrated a propensity to focus on irrelevancies, and fail to focus on what is actually solvable, in common, or points that we can stipulate as being commonly agreed.

Congratulations on losing points for failing to also focus on the "negotiation tactics" at law school; and throwing that out the window along with the other courses that "didn't seem to apply." The court will ask, "Have you spoken with the opposing party" to resolve this issue; and if not, the court is going to ask, "What have you been doing all this time arguing over a minor point, when the core issues are in substantial agreement.

Again, we note that an institution that hires such counsel is likely suffering from the "we agree with the public," but are going to spend alot of money to argue over something trivial; rather than agree on the core issues, we're going to delay, waste time, and divert valuable resources and let this escalate, rather than focus on the issue when it is small, and let the "success" be measured in terms of "what we can put behind us through common agreement, not simply using excuses and trivialities to ignore what, in the end, otherwise has merit."

Insurance companies, institutions, municipalities, and other public entities that engage in this kind of "fight over the scraps to abuse the client-public" really don't have the much reason to believe they'll survive in the long run. You may win the battle and war, but you're going to lose clients and public support. Congratulations on losing goodwill. Friend tell friends, and that's why the smart ones start jumping ship early.

Step 2 Miss the point

The broader issue is to notice that an institution like a municipality, corporation, or other entity will suffer from flaws that "outside counsel" are simply going to duplicate, but with more paper.

The trick is to notice which institutions suffer from these flaws, not by engaging in costly litigation, but to know early and with minimal risk which entities truly respond, communication, and have effective systems in place to handle these problems.

This phase of the planning relates to understanding how a small issue can say much about what is more likely to fail in a bigger way.

The next step is to confirm they've missed the point by emphasizing something that really doesn't matter. Whether the attorney read the original statement remains to be seen; nor shall we comment on the merits of the claim.

Rather, the attorney has not offered any textual references to back-up the claim; merely asserted a position without stating the exact words that justify the conclusion. We need not consider the merits of the assertion given there is no textual reference. Nor shall we necessarily argue "there was nothing there" as we cannot claim "nothing is there" when there is nothing.

However, the greatest flaw with the "argument" is to imply that the assertion is either true or false; when the real issue is the thrust of the underlying argument. Indeed, the attorney agrees with the thrust of the discussion, so it's unclear why the attorney has used energy implying "the biggest problem with the argument" is X, when the argument is essentially correct.

A valid argument that is essentially true doesn't have a "biggest problem," as it is merely evidence of "having missed the point." No matter, we shall not attempt to remedy this mental defect; the senior partner must enjoy the gymnastics.

Here's an example of an irrelevancy:

The post to my blog that you reference was not about a municipal client.

You'll have to make a better presentation that this is correct; and that your assertion actually matters. You have failed. Try again.

Again, the issue isn't that there is a failure to communicate, but that despite court pressure during litigation to settle the dispute, the institution-counsel both are quick to justify the public requiring use of more costly resources. In fact, the real problem is a failure of the institution to plan, discuss, review caselaw, and ensure training and publications create reasonable expectations based on what the institution is most likely to do when push comes to shove.

Indeed, it is more noteworthy than simply an error, but that the institution and counsel will continue to fight over a triviality, rather than simply say,

"You're right, although there are some minor differences in perspective, we take responsibility for our failure to timely resolve this dispute when the problem is small. But please don't use this to convince other countries that the United States is equally unresponsive, arrogant, or incapable of solving problems. We demand special immunity, and please disregard our example when forecasting the probability of the American model being more responsive that what is in place. We focus on principles like "customer response" not because we actually practice them, but by parroting these principles, we can justify engaging in misconduct, abuse, and arrogance."

Step 3 Assert an untrue statement

Public institutions and their counsel can also be quickly examined by simply observing. Let's take a look at the dialog and show that there is a reasonable connection between the failings of the institution and the likely ineffective responses from counsel.

Let's focus on the counsel. The next step is to assert something that hasn't been demonstrated. If it was "truly clearly stated" [not that it matters for purposes of the general conclusion], where does the attorney point to textual references? None. Thus, we reject.

As stated clearly in the post, it was about a corporate, insurance client and the case was a bad faith insurance lawsuit.

Indeed, the point of this illustration is to demonstrate that the basis for disagreement is irrelevant; but that the institution rather than giving up a dollar in an insurance premium, or do something that might otherwise simply adjust procedures, is more willing to come up with excuses to continue doing what doesn't work.

This is noteworthy. For institutions then rely on risk management, not as an excuse to mitigate risk, but to continue doing that which would deny discussing that which is otherwise defective. IN other words, the institution uses "risk management" not to solve problems, but to "avoid solving problems" and "ensure that the source of the funding" [client] is treated the worst, when they are most vulnerable.

IN other words, an insurance company is paid so that 'when there is a problem', the client can get assistance. Yet, the representations of counsel show that the real problem is that insurance companies are so tight-fisted, they'll do much to create unreasonable expectations, and "when there is a real problem" [and the bereaved widow is most vulnerable], the institution and counsel will combine forces to take advantage of that vulnerability and perform more mental gymnastics to avoid doing that which the insurance was designed to prevent: The client being taken advantage of when vulnerable.

In short, the public institution has created an illusory expectation; and the public continues to act as if this expectation is reasonable. Yet, where is the insurance company when it comes to ensuring the public has reasonable expectations: Are they communicating, clarifying, or providing information that would ensure the public is actually educated on what the insurance company will actually do during a time of crisis; have they actually spelled this out in plain English? Of course not. Otherwise, there would be no disagreement.

The job of the "dude getting paid" is to ensure the "dude making the payments" has a clear expectation of what will happen; not create the illusion of X, and then when X-occurs come up with excuses not to do it. Again, has the insurance company actually made an effort to demonstrate that the coverage does not apply; that there are situations and problems that people might run into where coverage does not work; or that if there is a future problem, these are the ranges that the coverage can be expected to not cover?

A simple review of the insurance literature provided to the public could reasonably be used as an indicator of litigation risk. Indeed, if we show the momentum of claims and compare then with the public brochures, it would be noteworthy to see the difference between litigation trends, and the gap in information provided to the public. This is not to presume that all public claims have merit; only the extent that counsel appears to be brought late in the game, when other measures appear to have broken down far earlier.

The core problem with the above quote is that we find no textual references to justify the assertion. Congratulations on missing the point and providing not textual references to justify illusory assertions. We need not be surprised why the public has a hard time interacting with institutions that suffer from the same defects: Assertions without evidence; and going to battle over the wrong issue.

Step 4 Belately agree with the core point

Indeed, one of the greatest flaws is to miss the point: That the American culture is quick to escalate and government, institutions, and corporations are generally unresponsive at the lower levels when things could be amically resolved.

Aside from that, although I agree with you that many such disputes in our society could be resolved before getting into the hands of lawyers if people were less litigious, in my experience we lawyers are asked by clients to step into the situation only as a last resort when all else has failed.

Good point: The institution has failed to adequately plan and discuss the issue inhouse with counsel with the issue is minor; and the existing management controls, policies, and training to assist clients is at odds with client requirements and expectations. The institution has failed.

The time to know these problems is before the client even signs the agreement to work with this institution or counsel. This comes in the form of simply asking, "Which geographic regions and institutions have failed systems; how do we recognize them; and what are our options to avoid engaging in these transactions; and how do we identify counter-parties that are reliable, regardless the actual level of service provided." We'd rather have a counter-party that is going to reliability provide minimal service [so that we can ensure these gaps are covered], rather than be led to believe coverage and assistance is X, when the actual assistance "when most needed" is something different. The goal is to mitigate risks; not to find out after the disaster that the counter party and their counsel are neither reliable nor effective in focusing on solutions during engagement.

The goal is to screen first, not after the disaster and find out the coverage is abysmal, or the exclusions are unclear. The trick is to probe and explore well before the disaster strikes. And this country frowns on "people asking too many questions." Let us not be surprised why clients go to other geographic regions where discussion is encouraged, not used as the basis to assume there is a problem or some "grand conspiracy going on." Yet, it is amazing how counsel, the court, and institutions during this "pre-engagement phase" will avoid answering questions with reliable information, and simply do whatever it takes to secure agreement, all the while knowing full well they haven't really agreed to do anything. They aren't even hired!

However, rather than evaluate the situation prior to litigation, many clients [municipalities, or others] will simply use the "we're not going to bother", and do nothing meaningful, thereby proving the point: That reasonable disputes could be reasonably handled, but for unresponsive institutions, thereby requiring costly litigation to handle something that the institution has failed to adequately address.

Step 5: Reconfirm has missed the point

Again, whether an institution wants to bring an attorney into a situation at the beginning, or after the dispute has escalated to litigation remains to be seen. It is amazing that a potential litigation opponent will generally not consult an attorney until it is self-evident that there is litigation.

Rather, are more useful approach [that is not followed] is to assess the litigation risks at the outset and so structure the discussions with the public to ensure litigation is mitigated; rather than bring the attorney late into the game just as papers are filed.

The institution-government should already know prior to interacting with the public or the client what the range of litigation issues are; and have early signs of problems resolved, not allowed to fester and boil over into litigation.

Yet, institutions do what they can to avoid the issue, not deal with the problem when the issue is small, and require the catalyst of a lawsuit to actually have the situation resolved. Is that the kind of counter-party you want? Fire them: Both the counter-party and their counsel. They're a cess pool.

It is absurd to suggest that the client is well-served when they conduct a litigation analysis this late in the game; a more prudent approach [which the public institutions like municipalities, government institutions, and corporations fail to take] is to structure their interactions with the client-public so as to resolve issues.

The institution should already have a good idea going into the initial discussion the range of litigation issues, so that they do not unnecessarily allow the situation to escalate...and then do the litigation analysis. The fact that the "risks of litigation" were not actively factored-evaluated prior to first engagement with the public-client shows that the institution has a more reactive approach than a risk-management approach.

When a plaintiff hires his own lawyer and decides to file a lawsuit in court against your company, you really don't have much of a choice other than to get your own lawyers to begin reviewing the case.

Actually its your company when your firm is the target of a malpractice lawsuit. Again, the client should already know going into an interaction, the needs of the public; that counsel and management have failed to discuss these issues is of no surprise.

Indeed, it is not surprising that counsel for an unresponsive client misses the point. There's no reason to explain that which counsel doesn't understand: They're there to solve problems, not simply do more of what hasn't worked. Yet, given they've never actually been challenged, there's no reason to be convinced that they're going to do anything that would challenge the client to solve the problem in advance next time. More of the "wait until we have a disaster," then come up with excuses. Hello 9-11.

Because the institutions fail to assess the real risks of litigation until after papers are filed, this shows the institution hasn't really addressed the issue when it is small. But for the litigation, the institution is unresponsive; that is a sign of poor customer service, failed management-training of customer service, and a poor interface between human relations, training, management, and counsel. We should not be surprised why, in this cess pool of failed communications, that the public would get nothing credible resembling a response.

Again, whether attorneys understand the issues earlier or late is irrelevant; the issue is the existing training, management controls, policies, and indicators are not consistent with timely problem resolution. Rather, it requires Herculean efforts to get the corporation to respond.

It is a bad sign when this late in the game, management suddenly turns to outside counsel to evaluate the situation. This is something that should already exist in the existing training and policies in terms of customer interaction. That an attorney this late in the game has to be brought in, implies the corporation-institution-municipality hasn't really understood the clients interests'. Welcome to America! The land of "pay us alot of money to miss the point and treat the client-public like the problem. Those firms get fired and the dollars spent elsewhere.

In short, they've sent the signal that reasonable expectations are X, Y, and Z; but the actual performance is something else. That's a communication problem from corporate management, and not a client-perception problem.

The irony is that the same failing of the municipality-corporation-institution are also evidence in the attorney's response: Miss the point, make excuses, agree with core issues, fight over irrelevancies, and make excuses to justify "doing what has happened," rather than looking for solutions. We should not be surprised why an unresponsive institution hires counsel that suffers from the same defects. Birds of a feather.

It is clear that this late in the game, the institution has underestimated the client; that is not a communication problem, but evidence that the institution has failed to meet expectations. That is credibility problem, and materially undermines goodwill, operating cashflows. Indeed, an arrogant institution and attorney isn't going to care much about "goodwill" when they can generally shift the issue from their own failings, and blame the public-client.

Congratulations on making my point. Arguing with clients: Why lawyers get fired.