LETTERS TO LEX LARES

DEAR LEX:

What advice can you provide to lawyers that want to keep the insurance companies happy that are paying the bills, and still always represent their clients' best interests?

-Anonymous

DEAR ANONYMOUS:

I'm not sure from your inquiry if the insurance companies are your adversaries or your clients. Your inquiry could be interpreted either way. (Someone noted that the challenge of communication is not to express one-self so that it is possible to be understood, but rather to express oneself so that it is impossible to be misunderstood.)

Let's start with the assumption-that you represent clients with claims against insurance companies. A more basic question is, "Will I be a more effective advocate if my adversaries love me or fear me?" I recall an experiment that was conducted by a psychologist seeking to find the most effective motivation in teaching laboratory mice to learn a maze. Would it be sex (a pink-eyed beauty of the opposite sex at the end of the maze), hunger (a hunk of cheese for the successful solver of the maze), or fear (an electric shock when a wrong turn was taken)? Guess which proved the strongest motivator in learning the maze? It was fear of the electric shock. I hunch that there's a lesson for us in analyzing these results. An insurance adjuster or attorney is more apt to respond to your demands if he or she fears you rather than likes you. Remember, every negotiation has as its basic theme "do what I want you to do or else." The "or else" for a plaintiff's lawyer is "I'll see you in court." Adversaries must know that you're willing to "go to the mat" and when you do, you will be a worthy opponent. Nothing undercuts the value of a claim any more than a plaintiff's lawyer who has the reputation of a "settler". Does such a reputation make the insurance companies with whom you deal happy? Sure. Are you representing your clients' best interests? No.

Now let's assume that you represent the insurance companies and you are agonizing over the potential conflict between the interest of those companies and their insureds. You must first decide who is your client. If you get that right the answer will be simple.Although the insurance companies pay your fees, your client is the insured. When conflicts arise, such as in the question of coverage, you must advance the interest of the insured. Will that make the insurance company happy? No. Might you suffer economically from your adherence to professional ethics? Yep, but that's what being a lawyer is all about. There's a powerful message to be found in William Blackstone's Prayer, apart of which reads:

Fame and riches I resign,
The praise of honesty be mine.

And that is my prayer for you. Meanwhile, hang in there.

-Lex Lares

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