and thankfully, when opposing counsel is finished with you,
you get “redirected” where the home team counsel attempts
any needed damage control by lobbing softball reminder
questions and prompts.
This is all done under oath and just like on television the opposing counsel is out to harass, confuse, trip up, and anger you.
In my case I was kept on the stand late into a Friday afternoon
as the time for my departure to meet my wife and catch a plane
for an international vacation grew ever closer.
Also, by the time you get sworn in the opposing counsel
has (at least in the case of an expert witness) read your report,
deposed you, and trawled the Internet for any prior musings
that might prove useful to his case. You are known. There is
nowhere to hide and no advantage in “walking back” prior
I was challenged to square statements from my Report of
Findings with statements I made in published articles several
years earlier. I left the arbitration hearing convinced that with
the possible exception of my mother no one else had ever read
my writings as extensively or deeply as the opposing counsel.
It did occur to me at one point of stress-induced hilarity in
the hearing to offer him my autograph, but the gravity of the
The lawyers were smart, focused and relentless. They
talked in terms of winning and losing and they did whatever
was within the law to achieve those ends. I was being paid for
my opinions. I expected to have to defend them. Some other
witnesses, young innocents from the project team, were caught
in the crossfire and survived as best they could, which wasn’t
always terribly well.
To be honest, the lawyers impressed the heck out of me.
These were very bright guys (the leads on both sides were
males) who dug into the technical and insurance-related details
of the case in a way that somewhat took me by surprise. I had
assumed that, being the “expert” would afford me some degree
of wariness by opposing counsel.
Would he really try to take me on in my own intellectual
backyard where all kinds of unknown trap doors might swallow
him? Yes he would, and he actually did very well as I struggled
on more than one occasion. But here was my realization; I
knew what I knew, but I didn’t know what he was going to ask
me, which he had time to plan for, and to which I had little time
to formulate a reply. Playing defense for several hours is hard
Then there were the arbitrators. These were the gallery to
whom we were all playing. They would choose the winners and
losers and they did not have the background to easily absorb
some of the complex arguments that we were all trying hard to
simplify in order to tell our story. It seemed to me that arbitration is what lawyers do when they are no longer sharp enough or
aggressive enough to argue a case, but are not yet ready to retire.
There were several comical moments during the week of
my involvement in the arbitration proceeding in which one or
another arbitrator would ask a question that made it obvious
they were not completely with the program. In fact it was even
open to speculation what the basis for a decision would be. Ac-
cording to the vendor’s counsel the case stood on whether the
software was ready for user acceptance testing when the carrier
pulled the plug; the carrier, by contrast, focused on the project
execution, or purported lack thereof.
In order to participate in the arbitration many people flew a
long way (across the U.S. and internationally), stayed in hotels,
and spent weeks (in the aggregate) away from their day jobs.
The lawyers had to be paid. The arbitrators had to be paid. The
expert witnesses had to be (less well) paid. The proceeding took
more than a year from beginning to end and absorbed thousands of hours. By the time some of the witnesses were sworn
in it was almost two years since the events under consideration
had happened. No one’s memory is that good, and (surprise)
neither was the project documentation.
In the end the arbitrators found in favor of the carrier. I
was surprised by the outcome, as was my client and our lawyer. The whole arbitration process was absorbing and quite
riveting. I learned a lot and I hope I am never involved in
anything similar again. I came back to my day job with one
overwhelming reaction: This will never happen to CastleBay
The fact is there are ways to avoid a legal showdown but for
people who haven’t been through it before and don’t know how
unpleasant and costly it is, their focus tends to revolve around
moral stances and company reputations. The bleak reality is
once two parties head down this road backing out gets harder,
opinions get more entrenched, and the ability to see other viewpoints becomes limited.
The bleakest reality comes at the end. There are winners
and there are losers. The arbitrators arbitrate and the losers feel
offended and then scratch their heads. The winners may feel
vindicated, but they must face the simple math of deducting
the costs of the arbitration from the settlement amount. The
final truth is as facile as an old cliché: In this instance the only
folks that won were the lawyers. Not that they didn’t earn every
The courtroom drama is a staple of the entertainment
industry for good reason—from John Grisham to The Merchant of Venice—it is about those most human traits of intellect,
argument, and persuasion. But within the canon of William
Shakespeare these plays are not comedies or histories they are
minor tragedies. ITA
(George Grieve is a popular writer and speaker on the
subject of insurance technology solutions and is the author of the book Shop Talk. He is CEO of the consulting
firm CastleBay Consulting. The views and opinions in this
column are those of the author and do not necessarily
reflect the views of the Insurance Technology Association
and its members.)