Last week I was having lunch with one of my friends in the structured settlement profession and we were talking about old times when we started in the claims and structured settlement business. The conversation turned to the claims and settlement practices that we commonly accepted and practiced in that era during the early 1980’s until the 1990’s, essentially agreeing that what passed as “aggressive negotiation tactics” then, would now get someone fired or even referred to the US Attorney for prosecution today. It was our mutual opinion that our profession has changed dramatically for the better over the years, with the current process by which settlements are negotiated and designed being far more equitable, transparent and largely eliminates most of the sins of the past.
We also both agreed that as a result of the efforts of a few tough pioneers on the plaintiff side of the settlement profession, companies were force to slowly admit that in order for the settlement profession to continue to grow and proper, that there had to be representation on both sides of the settlement transaction in order to temper the excesses and worst impulses of both defendants and plaintiffs. The result is that today we typically have settlement professionals on both sides of most cases and that trial lawyers and injury victims who decide to engage in negotiations or purchase a structured settlement with out a top professional by their side, do so by choice, not because they aren’t aware of the availability of settlement experts willing to assist them in the decision process.
So, if the settlement business is now more balanced and professional in it’s treatment of most injury victims, why do I keep bringing up all this dark history you might ask?
Largely because it is my belief that many of the worst business practices, intellectual laziness and marketing abuses practiced by defense brokers decades ago, are now permeating the plaintiff side of the profession and threaten to ruin our brand permanently with the very people who must make the important decision to structure or not structure. As someone who had a direct hand in establishing the plaintiff settlement profession, as well as one of the biggest advocates of the rights of injury victims and trial lawyers to informed representation, I think I have sufficient credibility and experience to call out the new breed of “plaintiff brokers” who I believe are directly and indirectly poisoning our professions reputation.
I will cover a lot of issues in detail in part two of this series, but as a preview, some of the topics to be covered are:
1. Brokers who state they are a “plaintiff experts” when in fact they are opportunists who work for whomever has the power in a particular case or transaction.
2. Using long ago discarded claims practices such as rebating or post case underwriting to needlessly defame and discredit structured settlements being offered by defendants, simply to get yourself inserted into a case.
3. Lavishing contributions, “soft money” and entering into business deals with trial lawyers or their professional associations simply to try and get the same “exclusive agent status” that was at the heart of many of the defense abuses and hubris over the decades.
4. Representing yourself as a settlement planning expert, when in fact you make most of your money from alternative investment products or brokering annuities, and you wouldn’t know what a MSA, SNT or QSF was if it hit you in the face.
However, as egregious as those issues are, to me the single biggest destructive element that has infected the settlement profession is the professional jealousy and out right defamation of other brokers, all in the name of trying to get a marketing edge.
As I stated in the title of this post, most plaintiff experts marketing program to trial lawyers can be summed up in the concept that “ everyone else in my profession is a crook or incompetent so you need to hire me, I’m one of the “good ones.”
Let me sum it up like this ladies and gentleman. If all you ever say, either overtly or by implication, is that our profession is filled with crooks, unethical brokers and incompetent planners with dubious motives, how long before trial lawyers, judges and plaintiffs start to view YOU as part of the same mess?
You can not possibly elevate yourself as a professional in the eyes of your existing and future clients if your business model is based on creating unreasonable fear of the product and the motives of the professionals in the business. All this while you blindly and naively throw money at trial lawyer groups in the vain hope that they will view you with admiration, when in fact they probably think your just as corrupt and incompetent as your competition, but you happen to be the patsy willing to finance their association or firms pet project, so they keep you around for a long as you are useful.
Sometimes the truth hurts and a lot of plaintiff settlement experts need to take a long look in the mirror and decide whether they are going to build a practice with enduring value to injury victims and trial lawyers, or if they want to take the short cuts and the certain path to destruction of simply slandering your competition and buying the business, all in the hope that you will be rewarded by lawyers who most likely hold you in contempt because you are bought so cheaply and turn on your profession so easily.
( Mark Wahlstrom is the President of Wahlstrom & Associates and is generally considered to be one of the nations leading experts in structured settlements, settlement planning and structured legal fees. His commentary is available each week on The Settlement Channel and Speaking of Settlements.)