The “Macro” Approach to Defending Professional Liability Actions
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
“Prior results do not guarantee a similar outcome.” You hear this at the end of a commercial for a plaintiff’s firm selling their services. However, the reality is that this kind of statement is not limited to personal injury plaintiff legal services. Every professional sells their services based on prior results or “see testimonials,” or positive reviews of Yelp. It is not exactly a good business model to suggest that you can’t guarantee a similar outcome because you never have had any prior results.
It is fair statement to suggest that you have the experience to have very good prior results, and yet, you do not guarantee a similar outcome. Just think of professional sports. Even if your baseball team won on opening day by a 4-0 score, it would get pretty boring if you are going to game 100, and you already know the outcome, and the fact that the cleanup hitter will once again strike out four times. These are professionals and even if the first outcome was positive, you are expecting different outcomes. Of course, if you are the Cleveland Browns, “Prior results do not guarantee a similar outcome.” may be an effective marketing slogan for the team.
It is part of doing business these days for a professional to get sued, and once in a while, the professional, when confronted with the allegations of negligence, admits that they had dropped the ball, and they accept responsibility.
More often than not, however, the reaction is that they had done nothing wrong, and they want a vigorous defense. There is a reason for this. This professional has been doing this kind of work every single day for every single month out of many years. Their inquiry is quite normal. “Did I deviate from what I normally do in similar transaction?” If the answer is “no”, you would not fault them from denying liability.
The professional opines as to their own negligence based on the full body of work that they have compiled over a life time. However, too often, defense counsel, in their representation of a professional, ignores the body of work, and focus on the single event that gives rise to the lawsuit. They look at the single event, and investigate, typically with the help of an expert, whether the professional deviated from the standard of care as opined from a retained expert.
This is what I would call the “micro” approach. It focuses in on a single incident, and that approach can be somewhat limiting and play into plaintiff’s counsel’s hand. Defense counsel retains an expert to testify that the professional acted within the standard of care. Plaintiff’s counsel retains an expert to testify that the professional acted below the standard of care.
If we assume that the battle of experts results in a draw, plaintiff’s counsel has an advantage because the lawsuit will be typically over a large loss, and the jury may want to be able to find someone to blame. If there is no one else out there, the professional can be left as a sitting duck.
Because of this, defense counsel will have to adopt a “macro’ approach. This is not about just saying that “prior results do not guarantee a similar outcome,” and these things just happen. That is a bit tone deaf. The fact is that people will want to be able to rely on prior results as their way to have some trust in a professional they are retaining, and they will want a good reason as to why there is not a similar outcome.
Many professionals, whether it is an attorney, an accountant, a design professional, a real estate professional, just to name a few, conduct their business in a specialized way, that the transaction for which they are being sued in the present case is nearly identical to the many transactions that they have completed over a lifetime. So, the macro approach is to bring in the professional’s entire body of work, or a good sample of that work, and examine what steps are taken, how the “I”s are dotted and the “T”s are crossed, and typically, the services are performed to a client’s satisfaction. However, something happened in the present case that was out of the control of the professional.
I want to be very convincing in the statement that if the professional being defended acted negligently in the present case, the jury must believe that the professional was also negligent in every undertaking. The professional was negligent for other clients last year, last week, yesterday and tomorrow.
However, the reverse must also be true. If the jury finds that the professional provided professional services in a way in the present case that not in any way deviated from how they conducted business in hundreds of hundreds of other cases, then it must be as equally true that the professional was not negligent in the case before the jury, despite the fact that there is a loss for which someone has to be at fault.
This “macro” approach will be certain to make the professional client happy because it is the exact analysis they had conducted when they first were sued. If there is a problem with the general way that business is being conducted, the attorney can be fresh eyes to look at how business is done in a “macro” sense, and not only does this help lead to a resolution of the current case, it may also help prevent future actions being instituted against the professional you have been retained to defend.
Two examples come to mind where it is typical for a professional to get sued, and the professional believes that negligence was not committed because they did not deviate from their normal course of practice.
The first example is the case when the professional has the “it was not my responsibility” defense. If we are looking at this from a “micro” perspective, it has limitations. Plaintiff’s counsel will point out that his or her client relied on the professional to take care of this matter, and the professional was not saying “not my job” when taking on the job.
When you use a “macro” approach, the defense is restated in a positive statement. “Here is my job. These are my responsibilities.” Defense counsel walks the jury through this to convince them that the professional did what the professional was supposed to do. It is about what the job was, and not what the job was not.
A second example is one that happens quite often. A third party committed a fraudulent or criminal act, and there is a large loss, and the professional is being blamed for the failure to discover the fraudulent action.
The “micro” approach again has limitations. Plaintiff’s counsel presents all the “red flags” that should have been caught by the professional, and the defense is on the defensive to explain why the client did not see the “red flags.”
The “macro” approach looks at this differently.
“Q. How many transactions have you been involved in over the course of your career?
A. Thousands.
Q. How many of these transactions have you been confronted with a fraudulent or criminal action as we saw in this case?
A. This is the first one. I have never seen anything like this.
Q. So, you do not have experience in identifying a fraudulent event such as this?
A. Thankfully, I do not.
Q. How would you get such experience?
A. I would need to be involved with more transactions that involved criminals.
Q. How much were you paid in this matter?
A. $500.”
Here, using the “macro” approach, we not only show that the professional conducted business in the normal professional manner, and unfortunately, the criminals also happened to be professionals as well. You can even use the “macro” approach for the criminal professional. “Hey, this guy was involved in 200 previous fraudulent deals and was not caught.”
So, we have one professional who has never seen this, and another professional who knows how not to get caught.
It does not hurt either if the professional you are defending was not paid much for the services performed.
There are countless other examples on how the “macro” approach can be used. While it is not necessarily a “magic bullet” in every case, the “macro” approach is helpful in putting the case out there in a “common sense” way for the jury and opposing counsel to understand and agree with the statement “prior results do not guarantee a similar outcome.”
