Nearly 25 years after ending, “Seinfeld” lovers still recall a particular scene in which perennial loser George Costanza gives his best friend Jerry Seinfeld advice on how to beat a polygraph machine. Jerry is dating a police sergeant who suspects he is a fan of “Melrose Place,” a soapy, over-the-top ‘90s drama that aired around the same time as “Seinfeld.”
Embarrassed to admit that he is a fan of “Melrose Place,” Jerry denies it repeatedly. Undeterred, the police sergeant challenges Jerry to take a polygraph test. This suggestion prompts an anxiety spike in Jerry, who asks himself and his friends whether he has what it takes to beat the machine. Friend Elaine even asks him, “Who do you think you are, Costanza?”
Realizing that he has access to his friend’s devious mind, Jerry seeks Costanza’s help. In response, Costanza leaves Jerry with a pearl of wisdom that has had people laughing for 27 years since he uttered the infamous line: “It’s not a lie…if you believe it.”
The wisdom of the character persists today because he captured an astute observation of human nature, particularly when it comes to shaping the storylines we have about ourselves, our friends and families, and, for our purposes here, our work. With that said, it is worth pausing and asking ourselves, “What happens when we start to believe the ‘lies’ of our cases?”
Lies We Tell Each Other (and Ourselves)
Narrative storytelling is fundamental to the defense of any case. Lawyers weave together the facts as they see them in order to create a persuasive narrative. As defense lawyers, this is especially important because we are often placed in the unenviable situation of “explaining away” mistakes. Strong narratives are, therefore, the spine of any good defense.
It is certainly not a problem to create an excellent narrative that supports a solid and good-faith defense—in fact, that is the job. The issue is when the facts no longer support the narrative, or when the narrative we—and our insurers—want to believe ends up trumping reality. For example, let us examine a scenario in which the defense lawyer is neck-deep in the deposition phase of a case. The attorney has prepared those initial case reports and exchanged rounds of written discovery. The attorney has presented the claim to the insurance adjuster as frivolous (or, at the very least, very defensible). Now it is time to put it to bed. But what happens when the testimony starts coming and the harmful admissions start piling up?
After one little slip from a defense witness, the attorney is sitting there at the deposition quietly gritting his teeth as the plaintiff’s counsel probes with question after question. The lawyer is repeating the go-to internal mantras in monastic fashion (tell the truth, stick to the story, don’t educate the lawyer). The witness, however, who has been prepped for hours, has other ideas, and the harms start multiplying. This leaves you in the unenviable position of returning to your clients and insurers to begin the “explaining away” game: “Yes, the deposition went fine, but now we have to deal with this issue.”
This is also the area with the most potential to cause serious conflicts between clients, insurers, and their lawyers. How often have you been in a situation where the insurers have made up their minds about the value of a case and you are left trying to explain how the witnesses were not helpful, did not present well, and run a serious risk of aggravating that dreaded hypothetical jury? And how many times have the insurance professionals been unmoved?
The natural tension is exacerbated when either side has become too connected with the initial case narrative. Or worse, when either the attorney or the claims professional says, “This is exactly like the other dozen cases I’ve had on this topic.” They know what story they want to tell—facts be damned.
The downstream effects are worse. Without moving away from prior narratives, the defense suffers. Cases are often overworked as the lawyers change whatever facts they can to support the story they want to tell. Mediations are often unproductive, as the insurer does not want to hear what the lawyer or the mediator has to say about the defense’s weaknesses.
With all due respect to George Costanza, a lie is still a lie—especially when you believe it.
The OODA Loop and a Move Toward Strategic Thinking
Instead of becoming married to our creative genius and narrative storytelling, we might take lessons from other disciplines that have spent countless hours studying and refining decision-making in the most challenging circumstances. For example, a bedrock of strategic military thinking is known as the OODA Loop (OODA stands for Observe, Orient, Decide, and Act). Developed by fighter pilot and military strategist John Boyd, the OODA Loop is a way of thinking aimed at gaining a strategic advantage over your opponent. In the most primal sense, when applied in an aerial combat setting, the goal is to make better and faster decisions than your enemies. There are numerous dissertations, articles, and books that cover the OODA Loop concepts in both theory and practice, but here is a basic breakdown:
• Observe: This first stage is data collection and understanding the facts.
• Orient: The second stage involves breaking down your observed facts and data with an analytical framework. You are developing options.
• Decide: The third stage is when you have filtered down the options and selected the best course of action.
• Act: The fourth stage is self-explanatory. You have made your decision, and now you execute it.
Finally, to complete the loop, you observe the results of your decision and actions, then repeat the process. The idea behind the OODA Loop is simple enough: Develop a rhythm for making decisions that work, then acting quickly and effectively while at the same time evaluating changing factual circumstances. From a combat perspective, your goal is to disrupt your opponent’s own decision-making loop and get inside their head so that they make mistakes.
Applying the OODA Loop decision-making process to the defense of cases has the potential to reshape how we are representing our clients, as well as reframe our relationships with insurers. Instead of drafting narrative structures that both attorneys and claims professionals become wedded to, you are instead looking at the facts within a critical and strategic framework. Instead of relying on the points you know everyone wants to read in the case reports, you are orienting yourself to how the facts interplay with your potential options. Only then are you in a position to make decisions and execute your case plans properly, and you set yourself on a path to observe the results of your prior decisions so that the OODA Loop framework continues and can evolve along with the needs of your defense.
The challenge is to bring this approach to the daily grind of insurance defense work. Perhaps you are already doing it, and, if so, reviewing your claims through this lens will only confirm that you are on the right track for better decision-making. You may also realize that you are overly reliant on your preconceived narratives (or perhaps the insurers you are working with), and applying the OODA lens may help all parties see the reality of claims more clearly.
Change is hard, especially in a profession where experience is so revered. But just because something is hard does not mean it is not worth doing. Applying a mindful perspective when developing our case narratives is imperative, as is being internally wary of believing our fiction.