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Arguing in the alternative

I don’t want to be disparaging of the law, but as well as learning lots of good things in my training as a lawyer, I was also taught a bunch of strange stuff that ‘didn’t compute’.

So when I was recently attending a session at London Business School on influencing with Niro Sivanathan, I was reminded of one legal nicety that I was taught early in my career – the argument in the alternative. Niro’s premise was this – when making an argument, the strength of any argument is only as strong as your weakest link. Pretty simple – could be applied to a number of things (including your football team) and is invariably true.

There are some exceptions – one fascinating one is the ‘dilution effect’. In essence, this is where you throw in a trivial statement to deliberately obscure the forceful statement because you want to weaken the impact of the stark statements. You see this commonly with drug warnings in the USA – taking this drug may result in high blood pressure, heart failure and other serious ailments, and then they throw in ‘itchy feet’ to dilute the fear of serious injury. However this doesn’t really apply to an argument where you are aiming to defend allegations against you, such as negligence.

What the legal fraternity tend to teach you is to ‘include every argument’ because if you don’t, you may be precluded from arguing it when it gets to court (which conveniently overlooks that very few cases get to court). So often you see very weak arguments being advanced because they aren’t prepared to give them away. For instance, a common claim is one that arises when a claimant falls in a common area of a shopping centre. Many times we will have CCTV that demonstrates the cleaning was up to standard and offers a strong defence to a claim. But the temptation is to run a bunch of other arguments around why there is no liability – culminating in the potentially dangerous situation where you may be arguing ‘if there is liability for the plaintiffs injuries, which is denied, Defendant B (the cleaner) is liable as they didn’t do what we instructed them to do”

 

To me that always smacks of raising the white flag to some degree. At Proclaim we have been banging on for years about cooperation between defendants. Let’s face it, if you plan to argue that it was the other guys fault, even if ‘in the alternative’, it isn’t doing the overall case for the plaintiff any harm at all. We have always thought that it makes much more sense for co-defendants to unite in their case against the plaintiff as it gives them a number of advantages – more possibilities of resolving the claim cost effectively (lets fact it, the legal system is expensive, and having multiple parties with separate lawyers all running in different directions doesn’t make a lot of sense). Also, it gives you a better chance of defending the case successfully when the parties at the backend are united against the plaintiff and not chipping away at each other.

I thought it was good timing to write this as it looks like some parts of the insurance market are hardening up. Our experience in the last hard market (oh so many years ago now) was that there was an increased appetite for progressive, sensible claim management. In the softer market, it doesn’t seem to matter as much – losses aren’t measured to the same degree and insureds aren’t being given incentives to reduce their losses. With some premiums now escalating – together with a distinct movement from long tail to short tail in Lloyd’s capacity currently for the Aussie market – it may be time to start thinking about managing risk better. And working with co-defendants is one proven method of reducing costs. It means you can advance the best possible arguments on behalf of a group of defendants and not create weak links in the chain.   And the crazy thing is that most of the time these co-defendants have ongoing commercial relationships with their co-defendants – cleaners and shopping centres for example – and extending that relationship to the back end when a claim arises doesn’t seem to be a stretch (insurance cooperation notwithstanding)!

Warning: Arguing in the alternative or labouring over weak arguments may lead to missed opportunities to cost effectively resolve, longer duration of claims, frustrated insureds, angry plaintiff lawyers, increased costs, judges with ulcers, increased insurance premiums, wasted time, brand damage and itchy feet.

Written by Jon Broome

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