Leverage from Vulnerabilities

Leverage determines litigation.  Leverage is a product of vulnerabilities. As 90%-95% of cases settle, vulnerabilities determine the amount of the payout by you and your insurer in virtually all cases.

Leverage in Litigation

Litigation is a jousting match of attorneys seeking the best financial outcome for their clients. This is particularly crucial in today’s world of increased deductibles and retentions by trucking companies to hold down premiums. 

I had a client with a $1 million retention that I represented around the country. Its owner told me their year end bottom line was primarily a function of how well I did for them. No pressure.

The key is to minimize the leverage of plaintiffs and maximize our leverage.  Much of this contest occurs post-accident.  In my current presentation I talk about the four phases of litigation and the competition for leverage in each. Three of those are post-accident—accident response, the “dark period”, and after suit is filed.

However, the most important is the fourth—pre-accident. This is the period that plaintiffs are leveraging into excessive settlements. 

Vulnerabilities=Leverage

Vulnerabilities are the primary source of plaintiff leverage. They are the detonator for a nuclear settlement.  They inflate a $15K case into a $100K settlement.

Exploiting vulnerabilities is the primary premise of “The Reptile Theory”. For those (few) who have actually read the book, it tells you that if fails if there is nothing to “meliorate” or correct.

Think about it. That strategy based on inflaming a jury based on a need to protect community safety fails if there is no underlying, systemic failure of the trucking company. Otherwise, what is the motivation that fires up a jury to respond to the plaintiff’s plea?

Denying Leverage=Identifying and Addressing Vulnerabilities

Identification and elimination of vulnerabilities needs to occur today. Before the accident. To deprive the plaintiffs of the fissionable material they need for detonation.

Doing so is an “infinite competition” as I wrote in my last blog post.  (If you haven’t read that yet, what’s been so darned important? I mean the season’s over for Ted Lasso, Succession, and the Boston Celtics. And Bruins)

This “infinite competition” is constant. It is existential. 

Failure to do leaves these vulnerabilities unidentified and unaddressed. The result--exposure to excessive payments.

Intentional Failure to Identify Vulnerabilities

Many trucking companies choose not to identify vulnerabilities. “What I don’t know…”

Their “intentional ignorance” a product of internal and external legal advice—“If you know, you’ll have to disclose in discovery. Better not to know.”

That, my friends, is the “discovery fallacy”. 

Fallacy? It is at best naïve to believe that the billboard plaintiffs won’t find the vulnerabilities on their own. They have conferences and seminars on what you have and how to get it.

Question:  Who do you want to control the narrative as that that “vulnerability”-you or the billboard attorney? You have the opportunity today to get ahead of it.

Demonstrate constant vigilance. Correct what you can. At least develop a plan of action so that you can present “no message needed. We’re on it.”

Make it your narrative.

Bottom Line

Vulnerabilities create leverage. Leverage is costly. Identify and eliminate vulnerabilities today.