1/25/2019
The Art of Convincing

The Art of Convincing

Utilizing Socratic methods of persuasion in the claims process

By Eric Rudich , David T. Shoults

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. 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 days either persuading or being persuaded by claimants and their counsel. Let’s look at several ways to use persuasion techniques to achieve better and more efficient claims 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 claimants to deal directly with them through the life of a claim.

• Persuade attorneys to delay or abandon filing lawsuits.

• Persuade attorneys to have their clients provide statements or medical authorizations.

• Persuade attorneys to engage in settlement discussions.

• Persuade management to concur with their liability decisions or settlement values.

• Persuade mediators or settlement conference judges to properly convey their stories to the other side or focus on one or two important themes.

To maximize one’s persuasive ability, the use of Socratic methods of persuasion are extremely useful throughout the lifecycle of a claim and in negotiating a favorable settlement or attaining a favorable outcome at trial. The three methods of persuasion are ethos, pathos, and logos.

Ethos

This type of persuasion consists of the combination of authority and credibility. Simply put, persons who have established their credibility and authority are often believed simply because of their positions. To establish this, claims professionals should demonstrate that they are both knowledgeable and credible. This is crucial not only for the simplest property damage claim, but also for the most complex of tort claims.

As soon as a claim is filed, the claims professional can begin to build this rapport and credibility by initiating phone calls rather than just responding to them. The claims professional 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 it is one that is often lost or overlooked. If claims professionals can establish their subject matter knowledge and trustworthiness, it can go a long way toward resolution. Even the denial of a claim can go uncontested if the professionals issuing the denials have established their ethos beforehand.

An example of ethos is used by a well-known mediator in New York City, who prefaces his discussions with litigants by stating, “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 was a former judge.

Pathos

Pathos involves making an emotional appeal to persuade someone by tapping into the listener’s feelings, such as fear, greed, or sympathy. We see this used by plaintiff’s attorneys at trial through their use of the reptile theory to activate jurors’ safety concerns or by appealing to their sympathies.

The use of a pathos argument was exemplified in a recent trial in which the plaintiff’s attorney, in his closing arguments, pleaded with the jury to imagine being trapped in their own minds when discussing his client’s 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, or frustrated.

For claims professionals, pathos can be used from the outset of a claim by expressing sympathy and empathizing with the claimant. If the claims professionals have 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, claimants who are treated with sympathy and respect and encounter claims professionals who are responsive to their accident-related needs will be less likely to want to punish a defendant.

Logos

This type of persuasion involves making 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, who 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 companies, experts, and witnesses will be perceived by a jury and understand 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 reptile theory approaches. In this scenario, a mock trial or focus group can provide great value.

Evaluating Persuasion Techniques

Each case is different, and jurors often focus on issues and decide cases differently than anticipated. Mock trials help claims professionals evaluate litigation risks by determining jurors’ perceptions of the plaintiff’s claims and the effectiveness of ethos, pathos, and logos forms of persuasion on 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), testimony (logos), 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 a case and the experts involved. Based on this information, defendants then have a data-driven approach for determining the strength of their cases and evaluating settlement options.

Let’s say you have done everything correctly. You were proactive, empathetic, and 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 is where patience is required. Sometimes the other side needs time to absorb your message. They may want to speak with someone or just simply contemplate their options. Don’t let this bother you. In fact, encourage it. Take this real-world example, which involved a settlement conference with a trial judge.

It was necessary from the defense’s perspective that the judge in a case speak directly with the minor claimant’s mother to properly convey the defense’s message. The judge resisted by saying that he knew the plaintiff’s attorney and that this attorney always had client control. It took several conversations with the judge to finally convince him to even ask the plaintiff’s attorney if he had client control. When the judge finally did, the plaintiff’s attorney shrugged and answered that he only had partial control. It was then that the judge brought the mother in and conveyed the message directly to her and the matter was resolved. The key to this was patience and persistence.

Keep in mind that, in some cases, the more intelligent the person is, the more time it may take for them to be persuaded. Continue to restate your arguments and continue to remain empathetic. It may be that they adopt your position and make it their own. If this happens, then 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. Be cognizant of whether or not 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.



Eric Rudich is partner/senior litigation consultant at Blueprint Trial Consulting. He can be reached at erudich@blueprinttrial.com.

David T. Shoults, MBA, CPCU, CLU, ChFC, is team manager for Broadspire Services Inc. david.shoults@choosebroadspire.com

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