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National Clothesline
Sometimes winning feels like losing
I was asked recently by a potential client whether an insurance company could sue the
company for increased premiums.
In this particular case, the insurance
involved was workers’ compensation. I
explained that workers’ compensation
insurance was subject to audit by the
insurance company to determine if the
payroll had been reported correctly when
the company paid the premiums. Premiums
are usually based on actual payroll while
earlier premium quotes are estimates.
The potential client went back to the
insurance company and discovered that the auditors were using incorrect figures. The auditors
asked her to supply information that would show that the audit was incorrect, and I got the
impression that the potential client did not want to do this.
After I advised her to do so, she sent me back an email that began with something like “so
you’re telling me that…”
Basically, my response gave me the idea for this column. I have been an attorney since 1977,
and I can tell you that fairness and justice frequently have nothing to do with the outcome of a
legal matter.
People do not go into government service to protect citizens from the government; people do
not go to work for insurance companies to protect customers from the insurance company;
people do not go to work for the Occupational Safety and Health Administration to protect
employers from unfair safety regulations; people do not go to work for the National Labor
Relations Board because they think unions are bad for America. Likewise, people do not go to
work for the FBI or the Justice Department not to keep people out of jail.
Fairness and justice almost always take a back seat to what corporations, government, and
individuals who have the upper hand think should happen. The government can usually spend
more money than you can defending yourself before you run out of money.
Companies and individuals frequently settle cases because the cost of litigation far exceeds
the settlement amount, or the cost of fighting exceeds the benefit.
If you want to make your lawyer happy, constantly tell him or her that (1) it’s a matter of
principle and (2) that you don’t care how much it costs.
Unfortunately, it costs extraordinary sums to be proven right, and standing on principle while
your company is destroyed is hardly a good business tactic. Sometimes, you have to make an
economic decision, not an emotional one.
Many years ago, I made the decision that talking to a law enforcement officer in an
investigation was full of peril.
What would happen if the policeman thought that I had information that could be helpful,
although I had committed no crime? Would he figure out a way to threaten me?
If I said something to him that he believed he could argue was untrue, should I risk charges
of perjury by talking to them at all? I am sure that Martha Stewart and Scooter Libby have
different ideas these days how they would handle such an interview.
Nobody wants to have an investigation without a conclusion that justifies the investigation.
That is one of the reasons why I try to limit OSHA inspections, especially those arising out of
accidents. Even if the accident was not caused by a violation of the Occupational Safety and
Health Act, OSHA wants to do something to justify its existence, so it finds another reason to
issue an unrelated citation against the employer.
Many of our labor and employment laws favor employees to the detriment of employers, and I
do not mean in a way that’s fair or justified. Some of the laws immorally hurt employers, but it
is difficult to get sympathy for companies over employees.
Sometimes, the most ridiculous incident reported in a newspaper by an employee results in a
ridiculous set of laws that hinder production and advancement all across the country. Many of
our labor and employment laws hurt both employer and employees, primarily because bad
employees and bad lawyers have learned how to manipulate the system. Many of our labor and
employment laws have become the tools of scoundrels.
That said, however, it is a situation that we must deal with, so when someone says to me
“Are you telling me that…” I have to say “Yes, I am telling you that.”
Unless you are in a position to change the system, you must learn to work within it. Just be
grateful that in the United States at least, bribery is not a cost of doing business, at least not on
a regular basis.
Dealing with unfair and unjust situations requires a cost-benefit analysis, not a Custer’s-last-
stand approach to the situation. If you can avoid being sued, avoid it. Winners often end up
feeling like losers, so pick your battles wisely. Do not get hung up on principle, if principle will
give you an expensive lesson in futile gestures.

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Frank Kollman is a partner in the law firm of Kollman & Saucier