In this episode…

On this episode of our podcast Discussions at the Round Table, host Michelle Loux talks with Jane Marie Downey and they discuss her experience as an insurance and risk management expert witness. Jane shares some common occurrences within her day-to-day work as an expert, including some interesting stories about testimony and how to change the dynamics of a room.

Episode Transcript:

Note: Transcript has been lightly edited for clarity. 

Host: Michelle Loux, Assistant Project Manager, Round Table Group

Guest: Jane Downey: President, Clarity Concepts, Inc.

Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.

Michelle Loux: Hi and welcome to another great show at Discussions at the Round Table.  I’m your host Michelle Loux. Today’s guest is Jane Downey. She’s an internationally known risk management consultant and insurance industry expert. Her specialty industries include manufacturing, financial institutions and technology risks. Jane, thank you so much for joining us. Please share a little bit more about yourself. 

Jane Downey: My name is Jane Marie Downey. I am an insurance and risk management expert in the Philadelphia area. I am a graduate of Temple University’s Fox School of Business with a Risk Management and Insurance degree. I have served as faculty at Temple and Penn State. My career started in Risk Management, doing procurement of insurance, and segued into consulting a very long time ago. As a consultant, I have been building a practice as an insurance expert witness. Recently, I have trained and been certified as an arbitrator with ARIAS, a United States arbitration for insurance group, of which I am very proud. The expert work is going gangbusters. I work on insurer bad faith, broker errors and omissions, Risk Management standards, even some safety protocols, and coverage. Also, I am seeing some premium disputes concerning premium calculations, development factors in collateral agreements, and other things. I am happy to say I am busy.

Michelle Loux: Do you handle residential or commercial?

Jane Downey: I do both residential and commercial. I had a case resolved where a well-known homeowners’ insurer denied a claim. I tend to see either denials or disputes over whether it is not the insurance carrier. It is whether the broker got involved in creating values and when an insured finds himself underinsured. I see a lot of under-insured cases and insurance industry pricing designed so that you are supposed to purchase the total value or 100% replacement cost. Most people do not know what replacement cost is because it is not on your books. It is not on your bank balance. It is not in your Quicken. It is what a contractor would charge to rebuild your house down to every last nail. It is a common source of dispute, and I have seen many of them.

Michelle Loux: Sure. Do you have some stories in testimony or deposition where the case might have changed direction more than you thought it would be based on your report or outside the report.

Jane Downey: Well, I have two funny stories regarding testimony. The first was a deposition against three different parties. It was a very rough deposition. The one attorney says to me, “You have never worked for an insurance carrier.” And I said, “Well, I worked for a subsidiary of what is now FM Global.” Then he said, “Well, Jane, did they issue you a paycheck?” I said, “No sir, they issued me a pension.” So, I cleared that hurdle.

The funniest thing was the other opposing counsel happens to mention during break that that he grew up in Meadowbrook, which is a little tiny piece of a larger township in in the eastern suburbs of Philadelphia. I said, “I’m from Meadowbrook.” And he asks, “Where did you live? I told him and he goes, “Oh, you were two doors down from [so and so].” The other attorneys are looking at him like, stop talking to her. It turned out we went to the same grade school and I’m telling you, the whole the whole manner of that day changed.

My master’s degree is in Group Dynamics and I’m very skilled at how you change the dynamics of a room. In that story I was testifying in Philadelphia County, which is very hard to defend in that county, and I told the counsel, “You know, they’re going to say I’m not an insurance expert because I have this master’s degree in Group Dynamics.” He says, “Obviously Jane, you’re an expert. You’ve got this. You’ve got that.” The opposing counsel comes up to me, tries to impeach me, and he says, “What is this master’s degree you have?” I said, “Well, I call it Group Dynamics.” He says, “What is it really called?” And I said, “It’s called psychoeducational processes.” The judge looks to me and he goes, “What’s that?” I looked at him and I swept the whole room and I said, “Your honor, we take a group of people. We put them in a room, and we watch what happens.” He says, “Well, that’s what we’re doing here. Counsel, move on.” 

Michelle Loux: That is perfect. I love that one. It is great. How did you start as an expert witness? What was your first opening to that?

Jane Downey: Well, the first story is interesting. I was sworn to secrecy at the time, but it is not news now. What happened is the General Accounting Office, which is the United States government, was looking for bids from pharmaceutical companies to make smallpox vaccines. It was back when smallpox was supposed to be dead, and the government was not involved in vaccines. It is different today.

What happened is this one shrewd broker locked up the entire pharmaceutical products liability market. They looked like they were the winner of the bid because they had an insurance package. It was all bogus. I was brought in to discuss that any pharmaceutical carrier will go to that group of insurance carriers to get this kind of coverage. What I did not know was you only have 36 hours to protest a General Accounting Office bid. I was never taught this as one of my lessons. No one told me Jane you need to be tethered to your desk. This is 20 plus years ago when you did not have a cell phone. You did not have a laptop. You needed to be sitting at your desk with your hard-wired phone for someone to get in touch with you, and they did not. And believe it or not, I think I had a power outage. I had no coverage, and it was stressful, which brings me to today. I have recently just changed my retainer agreement, and it says if you give me less than 14-days’ notice on a deliverable, my rate is going up $50.00 an hour. I just had someone who did not want me to finish the report because they were negotiating, and the other side played hardball. I said, no, your report is due in three days. All of a sudden, I am under stress that is not my fault.

I had another case where they gave me 14 days and told me to deliver it on a Monday. They did not give me the edits until Thursday. So an email will go out with my version that says, folks, if I do not have your edits by 5:00 PM tomorrow, my rates are going up to $50.00 an hour. Simple as that. I cannot believe they showed up four days after I met their deliverables. And it is interesting because a colleague of mine who is general counsel for an insurance carrier said, Yeah, I don’t like that law firm. I am like, oh now you tell me. I am certain law firms have personalities. So, you start to get the rhythm of how they work and how you need to manage them. It is sort of like being a parent. You must manage how the process is going, or you will end up with an issue.

The other issue with another law firm is an attorney making edits to my reports. As my colleague, John Campbell of Cipriani and Werner says, “Yeah Jane, when you get on the stand, and they say is this your opinion, you will say, ‘Well the first version was’”. I had somebody rewrite my entire report. I said I have to rewrite it. So, when I get on the stand, they are my words and opinions. He did not change my opinion, but he put it in a format that was not my voice. So, what I am learning is many times you have to stand your ground. You need to have a strong personality and know where the boundaries lie. You need to be careful that you are not contradicting an opinion you made last month. Because attorneys will push you to do that and you have to say, “Well, I can support you here, but I cannot cross a certain line.” It depends on the other most important thing, broker errors, omissions claims and the insurance bad faith claims are on a state-by-state basis. What an insurance carrier can do in New Jersey is very different from what they can do in Pennsylvania or New York, so it is also important that you know state law. Even though I am not an attorney.

Michelle Loux: Sure, you said you have twenty-plus years as an expert witness. Right?

Jane Downey: But my insurance career is 35 years.

Michelle Loux: So, if you are pulled in from California, Florida, Pennsylvania, or wherever, how long does it take you to get up to speed on those different laws? Is it just trial by fire trying to figure that out, or do you have colleagues or mentors that help you out?

Jane Downey: I do have colleagues. I am not a member of the American Association of Insurance Managers, but today I have been searching their member database because I have been assigned as an arbitrator and am not allowed to be the expert. So, I have to find somebody to do what I would do. One of my colleagues who belong to that group gave me the list published, I believe by Swiss Re, of state-by-state discussions of the laws on broker liability. It is not that hard. Usually, I am engaged by an attorney, especially when bad-faith insurance carriers do not pay claims that attorney should know the law. So, it should be pretty easy to get up to speed, and it is usually one way or the other. Either it is easy to get a bad faith, punitive decision like it is in Pennsylvania, or it is not. It is hard to get one in New Jersey. I do not take a case unless I can support it. The first thing I am asking is, what is the issue? Which state law is going to apply? I have an interesting case right now where the broker was out of Illinois. The risk is out of Pennsylvania, but we need to be looking at it. I gave counsel an assignment. I said you need to research Illinois law because we may like that law better depending on the issue.

Michelle Loux: Sure, that makes sense. We talked about how you started in some of the more interesting cases that you have had.

Jane Downey: I should tell you that the first case with the General Accounting Office was so stressful that I was not interested in expert work. Well, somebody called the Insurance Society of Philadelphia for an expert, and my name came up. I worked with an amazing team on a complicated case. It was all about case value, replacing it with a warehouse, building it brick to brick. There was a previous inspection and the valuation was not sent to the insured. They got me interested in the work, and then I have been building it ever since. I work for your organization, take out different ads. It is interesting. I have got one group that is a paid referral source. I have never used them. They convinced me to take a case, and now I have three. So, it is word of mouth. Once you are into a law firm, someone will send a note to partners and refer me. Certain law firms will do that. To market my work, I went through all my cases and contacts to assemble a list of over 125 attorneys. I now have a marketing database that I will be emailing to let them know I just got certified as an arbitrary. The good news is I have been so busy arbitrating that I have not had time to do that email yet.

Michelle Loux: What about COVID? It sounds like you have not slowed down at all, even with COVID. Have you seen a change in the type of cases referred to you or anything adapted because of COVID?

Jane Downey: That is a good question. I have had a client for 25 years, a long-term risk management client, who sends me a paycheck every month. It is such a luxury I cannot even begin to tell you, and I found out the week of the shutdown that I might lose that account. It was upsetting, so I started to pivot and began looking at other jobs. I applied for a faculty position at Temple and was trying to look at jobs that would allow me to keep my consulting practice. It was luck that when I had reached critical mass, the referrals began coming in. My expert work grew a lot in COVID. What ultimately happened was my general counsel and finance teams supported me tremendously. They have an overseas parent who does not understand what I do, and the broker is buried in work because I am no longer babysitting. I am making more money, and I am less stressed. I should mention getting the ARIAS certification was an investment of time and money. It was a decision to pivot, and I think that it is going to pay off. While I was at the national conference presenting for the third time within the last year, I learned they are doing certification for mediators. I am trained and certified because of my Group Dynamics Degree, so we will see where this leads. I am fortunate enough to manage what I am accepting right now.

Michelle Loux: That is wonderful.

Jane Downey: There are some other things I am trying to figure out. Is there a way to adapt my business so that I am not doing things like billing? My problem is I also have an undergraduate degree in accounting. So, I am used to being to be a bookkeeper. By the time I train a bookkeeper, I could have this done. But that is where I have to start focusing.

Michelle Loux: In closing, do you have any other statements or thoughts about being an expert witness? Any other stories?

Jane Downey: One of the things I was fortunate enough to do was get licensed with Pacific Life. They put me through some LinkedIn and social media training, which helped me look at how my LinkedIn page appears and how important it is to be posting articles. I need to post the fact that I got certified as an arbitrator. I did not realize how my LinkedIn page appeared to somebody like you who might have been looking at it. So, I got a new professional headshot and went to Canva to create a new look for my LinkedIn page. Now I am building a new website. And the trouble I am having is I have more than one business. I am not only a risk expert, but I am also a leadership coach. I am having trouble answering the questions, Why do you want to work with me? Is it A, B, or both? I keep paying them, and I have not filled out this paperwork because they want a call to action. So that is what my message is you want to give people a call to action. Why do they want to work with you?  I might offer a one-hour review of your corporate insurance program. So, you have to keep working on how to stay in touch and tell your story. Even when you are doing well, you need to keep working on marketing and networking. ARIAS offers me a mentor. At the same time, I met someone at the conference two weeks ago, and I will reach out to her and ask her to be my mentor. I am entering into my very first arbitration, and if I could get her to commit to maybe three 15-minute phone calls over the next two weeks. I think everyone will be much happier with how we work together.

Michelle Loux: I think that is a great way to end, Jane. It is always about being adaptable and changing with the times, and it sounds like you are on an exciting path with arbitration and everything else. Congratulations!

Jane Downey: Great! It was fun.

Jane Downey, President, Clarity Concepts

Jane Downey, M.Ed, ARM is President of Clarity Concepts Inc, and provides Enterprise Risk Management consulting, insurance broker management, workers compensation claims reduction programs, and outsourced risk management along with leadership, mentoring and team training to corporations, universities and other organizations. Jane also serves as insurance expert witness in insurance related litigation. Her areas of expertise include Insurance Claims Handling, Risk Management & Risk Control Standard, Insurance Broker Service/Agent Professional Liability and Insurer Bad Faith.