Thursday, October 22, 2015

Incompetent insurance defense lawyers make good spies, apparently

I just saw Bridge of Spies, the much-praised Steven Spielberg movie in which Tom Hanks plays an insurance defense lawyer who ends up negotiating a spy-swap with the Soviet Union. 

In Hanks' first scene in the movie, he demonstrates an incompetence that should get a real lawyer fired.

Hanks is negotiating settlement of a claim.  Apparently the sticking point is how many occurrences there are in a multi-vehicle crash for the purposes of a per occurrence limit.  Typically the starting point for this type of discussion would be the policy definition, followed by legal research on both sides.  If the issue is still open for debate, there might be some analogizing.  Hanks' character, perhaps anticipating his future role as a bit player in the cold war, decided to do the equivalent of Khrushchev banging a shoe on the table at the United Nations. 

Sure, that'll work.  (Not.)

In the same scene, Hanks says repeatedly that he does not represent the tortfeasor, but the insurance company.  Huh?  Any second year insurance defense associate should have a thorough understanding of the tripartite relationship--a cornerstone of an insurer's duty to defend that  says that an insurance defense lawyer fully represents the insured in all cases assigned to that attorney.  It's true that the attorney also fully represents the insurer -- that's the third "partite" in tripartite -- but generally that only comes into play as a reason that insurance defense counsel can't advise on coverage issues, or when there is a possibility of an excess judgment.

The response of any competent personal injury attorney to Hanks' negotiation strategy:  See you at trial.

Which brings us to the courtroom scenes in the movie.  During them I kept forgetting I was watching Tom Hanks in a Serious Movie About Serious Matters and thought I was watching James Spader in Boston Legal.  Same apparently senile crazy old coot judge who made rulings he admitted from the bench were wrong but he made them because he felt like it.  Same utterly inappropriate over-the-top goading of opposing counsel.  Same ex parte communications with the judge that could get both attorney and judge disbarred.  

Spoiler alert:  Hanks succeeds in negotiating the hostage exchange.  He uses the same tactics he uses in his insurance defense negotiations:  No research whatsoever and a lot of bluster.  The fact that he does succeed is a testament not so much to his skill as to the fact that when both parties really want a settlement , and what they are each willing to give is within the other side's settlement parameters,  a settlement will generally be reached.  That doesn't take heroics; it takes a telephone call. 

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