In part two of my commentary this week on the questionable marketing and side tracked mission of the plaintiff side of the structured settlement profession, I look at what I consider to be the four major flaws plaguing the plaintiff only side of the structured settlements. You can read part one of my earlier commentary on this by clicking here.
The problems as I see them 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. One of the biggest trends of the last 5 to 7 years is the almost comical rush by previously "defense exclusive" structured settlement brokers to rebrand themselves as plaintiff experts. In many cases their only pitch to trial lawyers is that " we worked for the casualty companies for years and we can get your case settled faster because they know us and trust us." Really? If your competitive position is that you are exploiting your long standing relationship with defendants for your new "friends" in the plaintiff bar, simply so you can get a commission, can I also assume you would just as quickly sell out a plaintiff if it meant you getting paid by a defendant. In short, these guys blow with the wind and who ever pays best and are no more friends of plaintiffs then a fox is friends with a barn full of chickens.
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. As anyone who has read my commentary over the years can attest, I've been very rough on the defense side of our profession and the claims practices they perpetuated in the business for years. However, I am here to tell you that most of those abuses are gone, the few remaining are on their last legs and it's time for plaintiff guys to move on. The continual rehashing of stories and tactics that haven't been practiced for years does nothing at this point other then discredit our profession, our products and diminish us in the eyes of trial lawyers. As I stated in my last post, calling everyone else a crook or clueless doesn't elevate you, it just drags down our professional status with trial lawyers and diminishes our value in their eyes and the eyes of their clients. In short, if all you bring to the table is that you are less rotten and less crooked than the other guy, you can probably expect to be replaced when your product is no longer competitive. ( Oh wait, thats where we are now, right?)
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. This is the one that really gets me. I would contend that few brokers in my business have been a bigger friend and ally of trial lawyers than I have. However, the attempts by many structured settlement experts to buy access and endorsements from trial lawyer groups and associations is both sickening and ultimately diminishes our profession. While anyone is free to donate to political campaigns and support trial lawyer groups, the fact that our profession is now often the first ones called to write a check for trial lawyers indicates not our loyalty but that we are being viewed as patsies and an easy mark when it is time to raise funds. We need more professionals willing to say no to this financial arm twisting and our requests for pay to play exclusivity as the "approved broker" for an associations members. We need to instead stand on our professional competence and our ability to help lawyers resolve difficult claims and to take care of their clients. When you continually hang a "for sale" sign around your neck, you will never be valued as a professional peer among trial lawyers.
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. The professional training and education of many plaintiff structured settlement experts is woefully lacking with many of them unable to properly explain what a special needs trust is, when it is used, what a MSA is or why it is crucial to trial lawyers, not to mention the complete cluelessness on non-qualified annuity issues. We need as a profession to stop relying on a single product sale and start crafting complete solutions for injury victims.
In short, the plaintiff structured settlement experts need to get out of the past and stop telling lawyers to not go on cruises because the Titanic hit an iceberg and sank a 100 years ago. Get over the past, shape a coherent and professional rationale as to why we provide value to trial lawyers and injury victims and get started spreading that message. The days of scare tactics, trading on inside information and attempting to buy loyalty must come to an end or our profession is going to stay stuck in the mud.
( Mark Wahlstrom is the President of Wahlstrom and Associates, one of the nations leading experts in structured settlements, settlement planning and structured legal fees. Based in Scottsdale, AZ he also writes for The Settlement Channel and hosts the weekly show Speaking of Settlements.)