Tips for scripting a successful arbitration story — Part 2
Effective storytelling allows subrogation professionals to present claim details in an engaging and powerful manner.
While written contentions are an important aspect of intercompany arbitrations, offering an interesting narrative from start to finish that keeps the arbitrator absorbed in your story relies on three things you control: The structure of the contentions themselves, the language and persuasive prose you use and the clear direction you give them to the evidence that supports the outcome you seek. A foundation for the persuasiveness an advocate wants to maintain needs to exist in both the visceral appeal of the case you offer and in the writing style you use.
Part 1 of this two-part series discussed these concepts and offered an example of how to successfully implement them in the subrogation process.
Tying everything to evidence
We know arbitrators use deductive reasoning and draw inferences from the evidence to make conclusions. They are relying on the advocate to present all of the evidence necessary to support their theory. Storytelling comes into focus when one views not only the facts that are included in the transcribed statement, photos from the scene or a police report, but you specifically told them what the evidence was intending to prove.
When I reference my insured’s statement, I might use language such as “corroborates,” “reinforces” and “certain.” If I offer scene photos, I might leverage “establishes,” “clarifies” and “proves.” I harken back to that mental image of my insured’s vehicle landing on the grassy median and rather than simply stating the facts, I quote my insured directly into the body of my contentions. In essence saying: “Don’t hear from me, hear from my insured.”
The approach is as follows: Take the one statement from your insured’s interview that best supports your theory and copy-and-paste it right into the middle of your contentions. Add and connect it to corroboration; perhaps from what they told the officer at the scene. Now your arbiter is following your script.
We know arbitrators value demonstrative evidence. Think of it as show and tell in grammar school. While we were nervous getting up in front of the class, we truly wanted to show and tell our classmates what we had brought. It is no different in an arbitration hearing. Whether an aerial photo, a scene diagram or any other form of visual evidence, be sure to tell the arbitrator what it is intending to show or prove. Do not leave it to chance that the arbitrator will see or interpret the evidence in any other way than what you intended. Be specific and direct the arbitrator to the takeaway from the exhibit.
Closing and the soundness of a story
By the time you arrive at your closing, your story for this hearing has kept the arbiter reading along, referencing intermittently your evidence with a realization that all you’ve offered fits together and matches your theory. This is called the soundness inference. That the narrative you’ve tied to the evidence is more likely to be truer than not and certainly plausible. It’s the preponderance of the evidence standard inherent in intercompany arbitration cases. Yet, the advocate can still be productive in the summation by referring back to the theory established in the opening and reiterating the one or two key pieces of evidence that (above all else) support the position.
Lastly, two final storytelling tips: As you prepare your closing, complete the sentence: “Our evidence has shown . . .’
We might suggest you actually place this sentence in your closing paragraph and then complete it. It’s a reminder to the arbitrator that cases are based on the evidence and that you have, in fact, shown them the proof in support of your theory. Additionally, reiterate the dollar amount you seek. Rather than stating “we pray for 100% recovery,” specifically place “we request an award in the amount of $ 7,289.” Intercompany arbitration cases are about dollars; you ask for what you seek.
No need for a screenplay
Keeping an arbitrator reading your contentions in the arbitration setting does not mean that an advocate needs to write a manuscript about the subrogation case to get the point across. The fact is the vast majority of claims making their way to inter-company arbitration are two-vehicle auto losses and close to one million cases need to be heard annually by arbitrators. Most of these insurance professionals hearing cases would agree; keep it brief and concise.
At the same time, advocates need not be formulaic in their approach. The storytelling method does require a bit of creativity with the fact pattern. But simply the more you do it, the easier it becomes. Leveraging the arbitration advocacy fundamentals we’ve discussed have not only (hopefully) kept you reading along but have also given you the backdrop for writing your most successful contentions.
Kevin Pike (KPike@Subroclaims.com) is arbitration manager for the national recovery firm Subroclaims, Inc. His background encompasses 34 years in arbitration and the dispute resolution field.
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