To Win Insurance Recovery Lawsuits, Lawyers Must Think Like a Judge

In today’s blog post, Miller Friel attorney Kimberly Wehle continues her four part series, Four Tips for Advocating Insurance Coverage Disputes.  In the second part of this series, she addresses an essential characteristic that insurance recovery lawyers need to win cases: the ability to think like a judge.  She emphasizes that judges have brilliant legal minds.  But, time pressures may not allow judges to build a deep reservoir of knowledge pertaining to specialized legal disciplines such as insurance recovery law.  Unless handled correctly, complexities in insurance recovery law can lead to confusion and waste a judge’s time.  Effective advocacy in insurance recovery law requires that complex legal arguments be distilled down into a simple yet comprehensible format.  Given the complexities of insurance recovery law, this is not always an easy task. 

Her series continues next week with part three, addressing theory of the case, and telling a great story. 

We have included a transcript of the video below:

Four Tips to Effective Advocacy in Insurance Recovery Cases:

#2 Think like a judge

One of the questions I’m often asked is how to make routine argument, written argument sing, so to speak. How to make it particularly interesting and particularly engaging for the court. The answer is to write it in a way that’s tailored to that particular audience. The role of an advocate is to take complex, sometimes sophisticated legal questions and translate them into terms that are accessible to a generalist. Judges are highly educated, they know a lot about the law, but they don’t have the time or the desire to read every single case, every applicable statute, regulation subsection. The role of the advocate is to take multiple competing, sometimes intersecting complex legal concepts and translate them into soundbites that are not only accurate and comprehensive, but digestible to a generalist. When we’re writing for a court, we’re aware that this judge is a lawyer, this judge has all different kinds of cases, this judge is sophisticated and intelligent, but not necessarily steeped in insurance recovery law and certainly not always steeped in the particular state law that would apply to that insurance policy.

One of the objectives is not just to answer the question presented, to write about the law, but to write about the law in a way that’s engaging to the judge and accessible and understandable quickly, while at the same time being accurate and comprehensive. That’s a challenge for sophisticated advocates. I also teach law students and what I tell my law students is if you can’t explain this to your seventh grade niece, you don’t understand it yourself. Any concept, however complicated, any complex litigation should be able to be translated into three to five points that can be explained in a very conversationalist way to an intelligent, educated middle schooler, so that they know in accurate, but comprehensible terms what you’re talking about. That’s a challenge for litigators whose instinct is to be as thorough and comprehensive as possible and often times we can get into the weeds, so to speak, and they can get so wordy that you lose the forest for the trees. One of the key objectives early on is to identify what the theory is that we want to convey and translate that into ways that are really understandable to anyone who’s willing to listen, particularly to obviously a sophisticated court.

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