In recent years, civil discourse has gone the way of the dodo bird. We seem societally incapable of contending with anyone who does not share our analysis or opinion. Rather than dealing with the merits of our opponent’s argument, we are more likely to demean them and cast aspersions. Politics and social media serve up prime examples of these behaviors. But they don’t end there. It has migrated into the manner in which we handle our cases.

By its very nature, the law is a contentious business. But that doesn’t mean we can’t deal with each other in a civil manner, with integrity, and have productive discussions when we are at odds with one another. Our legal communities are small. If you approach every problem with a scorched-earth mentality, it won’t be long until all that remains of your relationships with opposing counsel is charred bones and ash. And it’s very hard to have a productive relationship with a dead person.

I was recently handling a subrogation case arising out of a car wreck. Defense counsel was another insurance defense lawyer who I knew. Ultimately, it became clear his client was at fault for the accident. But there was a question of law about one of the items of damages we were claiming. The law surrounding the issue was pretty gray, allowing both of us to argue our positions with a straight face.

I’m going to share with you the emails we exchanged back and forth as an example of how to argue with opposing counsel in a civil manner. It can be done. And mostly, it should be done. Because we will all be better served by treating one another with respect, even when (or perhaps, especially when) we find ourselves at odds with one another.

Arguing about the recoverability of rental fees

OC’s settlement offer

I’m offering $4,500, less the salvage value received for the total loss.  If you’ve got documentation for the salvage value that shows that less than $375 was received for the car, send it to me and I can adjust accordingly.

I cannot offer anything for the rental expenses, since rental expenses are not recoverable in total loss situations involving personal vehicles.

My request for OC to support his position?

Will you send me some caselaw supporting your contention that the rental expenses paid out by [my client], which it was contractually obligated to pay and which are consequential damages arising from this accident are not recoverable?

OC makes his argument

Yes, it’s Fuller v. Martin. Lary v. Valiant Ins. Co. is a more recent case, but it relies on Fuller.

You’ll see it’s redflagged, and was overruled in part in 2012 by Ex Parte S&M LLC v. Burchel.  However, you’ll also see that Burchel actually only applies to commercial vehicles. The exact quote from it is “[o]ur current rule as set forth in Hunt and applied in Fuller and Lary is insufficient to accomplish that purpose when the commercial vehicle at issue is destroyed and a replacement vehicle is not immediately available. Therefore, we modify our existing vehicle-damage rule with regard to a damaged commercial vehicle that is not repairable to allow the recovery of reasonable loss-of-use damages during the time reasonably required to procure a suitable replacement vehicle.

Conclusion: The decisions in Hunt, Fuller, and Lary are overruled to the extent that they conflict with the modified vehicle-damage rule set forth in this opinion.” (Emphasis added by me.)

Based on that, I’m of the position that Fuller is still good law when it comes to a personal vehicle. It says “[t]he general rule is that if the automobile is injured so that it cannot be repaired the measure of damages is its value immediately before the accident, less its wreckage value, if any. Recovery cannot be had for both total loss of an automobile and loss of use of the same vehicle.”

I will admit that I’ve never considered this in the context of another insurance company seeking subrogation.  I’ve only encountered it in situations where the third party is seeking to recover rental car expenses. I don’t see why the analysis would be any different though…the car was a total loss. The measure of those damages would have been the reasonable market value of the car, not the reasonable market value plus rental car expenses, especially considering that rental car expenses are totally reliant on how long the other party feels like car shopping, or whether they happen to have an extra car sitting around they can drive.

Making my counter-argument

I am waiting to hear back from my client, but I expect a counter-demand that will include the rental fees.

I’m familiar with the cases you sent, but this is not the same as a “loss of use” claim, which is akin to a lost wages claim. Clardy v. Royal Ins. Co. of America 495 So.2d 58 (Ala. 1986) specifically states that rental vehicle expenses are recoverable. Additionally, the rental expenses are not uncertain claims like a loss of use claim, but a real actual expenses that my client incurred resulting from [your client]’s negligent conduct. If your client is willing to pay the rental fees, that may make this easier and quicker.

OC’s response to my counter-argument

Jeremy, below is a discussion covering some of the reasons I think I’m right. If you’d like to avoid reading more than necessary right now and just get this thing done, just assume that my response to your counteroffer will be to suggest that we split the rental charges.

Clardy is not applicable here, for a couple of reasons. One is that it concerns only costs that the defendant’s carrier was alleged to be responsible for as a result of a separate and independent obligation it undertook. (In that case, the insurance company told the plaintiff to not have his vehicle repaired until after they were able to have someone look at it, and they specifically told him that they would pay him for the rental costs incurred while it was being repaired, but then refused to do so.) The other reason it’s not applicable is that it’s not a total loss case. I don’t think there is any question that reasonable rental charges may be recovered when the plaintiff’s vehicle is not a total loss.

I’m also not sure that the distinction between loss of use and rental expense is as clear cut as you suggest. The Clardy case cites to Hamrick v. Daniel, 449 So.2d 1247, as authority for the proposition that the plaintiff could recover reasonable rental expenses.  However, Hamrick concerned loss of use damages…the plaintiff in that case owned a motel and he would rent out his car to motel guests. It did not involve any “actual” rental expenses. I believe that rental expenses are type of loss of use damages.

I also don’t think rental expenses here are any more certain than loss of use damages or lost wages damages would be in some other case. The [insureds] could have bought a new car the day after the accident. They also could have gone on a three week long cross country tour. Either way, rental expenses would have been incurred, but one option would have drastically greater rental expenses than the other. The difference in rental expenses in those two scenarios would have nothing to do with [my client]’s conduct, and I think that is the reason the courts have drawn a distinction between rental expenses in total losses cases compared to cases where the vehicle was repaired.

After this last email, rather than continue to argue with opposing counsel, I picked up the phone and gave OC a call. We agreed that this area of the law was open to some interpretation, with either side being equally likely to get an unfavorable ruling from the judge. So we split the rental fees and reached our settlement agreement.

How to effectively argue with opposing counsel

We are going to have plenty of opportunity to argue with opposing counsel about differences of opinion and interpretation. There is no shortage of that. But to do so effectively, it is important to remain focused on the issues and present meritorious, supported arguments. If you take bogus positions or make things personal, you’re going to lose the respect of opposing counsel and sabotage a relationship.

It is important that we have functional relationships with the other side. We are going to be working with and against the same people for the entirety of our careers. We are best able to serve our clients’ needs when we have a relationship with opposing counsel that enables us to navigate cases in a civil manner, trusting one another to play by the rules.

Even so, there will be times when you disagree and have irreconcilable interpretations of the law. When these arguments arise, conduct yourself with propriety. Support your positions with statutes and caselaw – and if your position doesn’t have any support, perhaps you should reconsider it. And above all else, act with civility toward each other.

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Photo by Wil C. Fry.