David Shoults, CPCU, CLU ChFC, MBA; Eric Rudich, Ph.D.
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The resolution of a claim involves much more than simply attending a mediation session to negotiate a settlement. The final negotiation of the settlement is often only a small percentage of actual claims activity. And yet, there seems to be a greater focus among claims professionals on negotiation than on persuasion.
Claims professionals spend a great portion of their work day either persuading or being persuaded by claimants and their counsel. This article addresses ways to use persuasion techniques to achieve better and more efficient claim outcomes.
There are many opportunities for claims professionals to persuade. The claims professional who is skilled in the art of persuasion may be able to:
Persuade a claimant to deal directly with them through the life of a claim
Persuade an attorney to delay or abandon the filing of a lawsuit
Persuade an attorney to have his client provide a statement or medical authorization
Persuade an attorney to engage in settlement discussions
Persuade management to concur with the claims professional’s
1. liability decision or 2. settlement value
Persuade a mediator or settlement conference judge to properly convey their story to the other side or focus on one or two important themes
To maximize one’s persuasive ability, the Socratic methods of persuasion are extremely useful throughout the lifecycle of a claim and negotiating a favorable settlement or attaining a favorable outcome at trial. The three methods of persuasion are Ethos, Pathos, and Logos. A description along with potential applications of each type of persuasion is described below.
Ethos: This type of persuasion consists of the combination of authority and credibility. Simply, the person who has established their credibility and authority is often believed simply because of their position. To establish this, the claims professional should demonstrate that they are both knowledgeable and credible. This is crucial from the simplest property damage claim to the most complex of tort claims.
As soon as a claim is filed, the claim professional instantly begins to build this rapport and credibility by initiating phone calls rather than responding to phone calls. The claims handler who is proactively engaging the claimant is the one who is driving the process rather than reacting to it. This is a simple concept, but one that is often lost or overlooked. If a claims handler can establish their subject matter knowledge AND that they can be trusted, it can go a long way toward resolution. Even the denial of a claim can go uncontested if the person issuing the denial has established their ethos beforehand.
An example of ethos is used by a well-known mediator in New York City who prefaces his discussions with the litigants by stating that “As a former New York Supreme Court Judge for 20 years.” By reminding the litigants of his experience, he is establishing his ethos and letting them know that they can trust him because he has experience in litigation and as a former judge.
Pathos: This type of argument is an emotional appeal to persuade by tapping into the listener’s feelings such as fear, greed, and sympathy. We see this used by plaintiff attorneys at trial by their use of reptilian approach to activate jurors’ safety concerns or by appealing to their sympathy
The use of a pathos argument was exemplified in a recent trial in which the first author was involved. The plaintiff attorney, in his closing arguments pleaded with the jury to imagine being trapped in their own mind to sell a Traumatic Brain Injury. The attorney did not focus on the accident or causation. He did not refer to any medical records or to any testimony that was presented during trial. He simply tried to get the jury to “feel” the injury along with the emotions of being scared, concerned, frustrated, etc.
For a claims professional, pathos can be used from the outset of a claim when he or she expresses sympathy and empathizes with the claimant. If the professional has had a similar situation or experience, they can mention it to show that they possibly know how the claimant may feel. This can help establish a trust between the insurance professional and claimant. At the end of the day, most plaintiffs want to feel respected by insurance professionals. Research has shown that doctors with a good bedside manner get sued less often. Similarly, insurance professionals who treat claimants with sympathy and respect and who are responsive to their accident-related needs will be less likely to want to punish a defendant.
Logos: This argument is a logical appeal. Although it may be effective, people are often persuaded by emotional appeals (Pathos) and peripheral cues such as the credibility of the speaker (Ethos). People are emotional beings first and then filter information based on their decisions of what is “right.” A person who is presenting a logos argument would argue the specifics and details of the case in an effort to persuade. A logos argument should be equally persuasive regardless of the presenter.
However, sometimes the claims professional cannot reach an agreement or resolution with the claimant and a lawsuit is filed.When this happens, both sides have witnesses, experts, and company representatives who will present evidence to persuade the jury to find in their favor.
When a case is being litigated, both the defense and the plaintiff will want to know how their company, experts, witnesses etc. will be perceived by a jury and the drivers of their verdict decisions. They also want to know which types of persuasive arguments to use and how to mitigate plaintiff sympathy and counter any reptilian approaches. In this scenario, a mock trial or focus group can provide great value.
Use of Jury Research to Evaluate Persuasion Techniques
Each case is different, and jurors often focus on issues and ultimately decide cases differently than anticipated. Mock trials help claims professionals evaluate litigation risk by determining jurors’ perceptions of the plaintiff’s claims and the effectiveness of ethos, pathos, and logos forms of persuasion for persuading jurors. For example, in catastrophic accidents in which liability is questionable but damages are severe, jury research can help inform which types of persuasion techniques will help mitigate damage awards.
The use of mock trial and focus group panels help counsel identify themes and visual strategies for effectively advocating for the client’s position. Moreover, these techniques may also be used to evaluate and prepare key witnesses to assist them with communicating their credibility (ethos), logos (testimony) as well as identifying more emotional themes and arguments (pathos). Importantly, the results of the jury research may be used to guide any additional settlement negotiations to help determine the strength of your case and experts. Based on this information, defendants then have a data-driven approach for determining the strength of their case and evaluating settlement options.
Let’s say you have done everything correctly. You were proactive. You were empathetic. You properly investigated the claim and have the correct indemnity and expense reserves set. You have given your best persuasive arguments to the claimant, the attorney or the mediator/judge, but they are not convinced.
This requires patience. Sometimes the other side needs time to absorb your message. They may want to speak with someone or just simply contemplate. Don’t let this bother you. In fact, encourage it if necessary. The first author recently attended a settlement conference with the trial judge. It was necessary from the defense’s perspective that the judge speak directly with the minor claimant’s mother to properly convey our message. The judge resisted and told us that he knew the plaintiff attorney and this attorney always had client control.
It took several conversations with the judge to finally convince him to even ask the plaintiff attorney if he had client control. When he finally did, the plaintiff attorney shrugged and answered that he only had partial control. It was then that the judge brought the mother in and conveyed our message directly to her and the matter resolved. The key to this was patience persistence.
We would add that in some cases, the more intelligent the person is, the more time it may take for them to be persuaded. Keep this in mind. In some cases, continue to restate your arguments, continue to remain empathetic. It may be that they adopt your position and make it their own. If this happens, congratulate them on their “good idea.” Refrain from reminding them that it was your idea in the first place.
As a claim progresses towards resolution, keep in mind that you are either persuading or being persuaded. You should be cognizant of whether you have established your ethos. You should also be cognizant of when a pathos persuasion technique might bring more favorable results and always be ready to advance logic into your argument. All three aspects of the Socratic method of persuasion may be effective in the right situation, but the best result is when they are used in combination throughout the claims process.
David Shoults, CPCU, CLU ChFC, MBA
Broadspire Services Inc.
Eric Rudich, Ph.D.
Partner / Senior Litigation Consultant
Blueprint Trial Consulting