DVDs Help Define Acting Styles

The choice of acting style is a challenging one, for it’s the culmination of numerous dramatic choices, ones that require precise balancing. What is style? It is the selection and arrangement of acting elements and qualities to portray the dramatic truth, the purpose of the play. These acting elements consist of the degree of reality, the dominant dramatic flow, the selection of the emotions, intentions and the accompanying behavior. Additional items include the pacing, timing, the premise or purpose of the play, and the desired audience response.

Acting has to do with choices. One can define acting as the art and science of making and implementing dramatic choices with imagination, clarity, and purpose. Choices that support the dramatic equations, propel the story to its optimum potential, and create the desired illusion within the mind of the audience. Style is one of the more important choices.

For the acting ensemble, style is the full realization of the characters’ convictions. In other words, saying what we want to say just the way we want to say it. To illustrate how the style affects the actor’s portrayal I’ve selected two films, the drama “Michael Clayton” and the comedy “A Fish Named Wanda.” The two films are actually hybrid styles, a drama/thriller and comedy/farce respectively, each drifting between the two styles. Yet the same selection parameters apply. Understand that each genre has its own look and feel, a set of characteristics that makes it credible and gives it purpose. By comprehending these distinct attributes, the acting ensemble can express the truth, the essence of the play and pursue the desired response from the audience.

Let’s look at the drama/thriller “Michael Clayton” and see how style parameters are used to fulfill the purpose of this film. Tracking times indicated in parenthesis show the location of the various examples.

Michael Clayton (George Clooney) is brought in by his law firm as a “fixer” to remedy an embarrassing situation. The firm’s star litigator, Arthur Edens (Tom Wilkinson) suffers a nervous breakdown while representing a chemical company, one that he knows is guilty in a multi-billion dollar class action suit. The crux of the story revolves around Michael’s growing suspicions about this case and his conflict between loyalty to the firm, his need to pay off a loan shark, and his ethics as a human being. A moral dilemma has him searching for answers. When the lawyer’s death looks like a suicide or accidental overdose, Clayton delves deeper into the case probing about what the lawyer might have uncovered.

Obstructing his pursuit for the truth is Karen Crowder (Tilda Swinton) the chief legal consul for the chemical company. She finds her entire company’s future hanging on the outcome of a multi-billion-dollar settlement.

While the movie is a blend of the two genres, the acting styles are drama intertwined with the thriller aspects. It starts out as a drama. Reality is natural, truthful interpretation of human conditions having universal roots. It is lifelike and typical of everyday situations. It remains that way until Michael’s car blows up (15:28). Unknown forces have placed his life in jeopardy and the story now becomes a thriller. Reality becomes confined, almost claustrophobic as he frantically runs away. Where can he hide, whom can he trust? This scene sets up the thriller narrative wherein the audience experiences a vicarious thrill by identifying with both the deeds of daring performed by the hero and the dangers to which he is exposed. The setting of thrillers is usually in a dark, corrupt and dangerous place, and this film slowly slips into this environment.

At this point, the movie jumps back four days in time. The genre reverts to drama; however, the audience lingers in the thriller mode. In this flash back, the main character doesn’t know he is in danger, however, the audience knows he will be. Thus, the audience seeks the identity of the culprits, plus why to they want him dead.

In drama, behavior is natural and normal with wide span of attitudes, from negative to positive. There is a balance of inner and external thoughts and feelings. Characters weighed with powerful motivations and struggles, conflicts and solutions are pursued in earnest manner. In thrillers, tension is inherent in characters and situations, and behavior is thus stress-ridden and on edge. Stress creates mistakes and errors of judgement such as not being able to see of full picture. When Arthur asks Michael (1:00:00) how they knew he had called Anna, he doesn’t realize that Arthur’s phone was tapped. Such myopic behavior is prevalent with sustained tension and multi-facets goals.

Deceptive behavior and betrayal from within are also found in this genre. Karen Crowder, (Tilda Swinton) the chief consul for the chemical company, places a contract (1:05:39) on Arthur’s life when she finds him detrimental to her case. It’s an act of desperation as there is no other option if she is to succeed. She justifies this immoral act to protect the company’s legal liability. Abnormal personality types are likely in thrillers and in this one; Karen Crowder might be classified as obsessive/compulsive. This is evident by her attention to detail and her meticulous preparation for an interview (23:04). In addition, her perfectionist drive likely contributed to having Arthur murdered.

Emotions in drama, more so than anything else, drive the story forward. They have a wide span, usually deeply played from full passion to concealment. Emotions can be elusive and subtle in quality making them apparent only through audience involvement in the story. They can also be highly volatile.

In thrillers, emotions have the same qualities; yet center more on the survival mode. They tend to be reactionary focusing more on the expected or imagined. Survival emotions include terror, horror, fear, dread, despair, grief, suspicion and apprehension. Michael Clayton likely feels terror when his car blows up (15:28), grief when his good friend Arthur is found dead (1:15:28), and suspicion when he learns Anna did not reveal her conversations with Arthur to anyone (1:23:40). He likewise feels apprehension; an uncertainty about what’s happening and this prompts him to dig deeper for the truth. When Michael decides to break into Arthur’s apartment (1:25:23), it’s likely done with the emotion of desperation.

In drama, intentions tend to be highly worthy, meaningful, and motivated, yet not always readable initially. At times, they unfold slowly pulling the audience into deeper involvement. True intentions are sometimes delayed or misdirected to increase tension and audience involvement. In addition, intentions are revealed more in subtext (implications) than in text (dialogue). In thrillers, the intentions tend to be reactionary and survival oriented. Missteps or being overmatched play into this genre where precarious outcomes keep the audience on edge. In this film, Michael’s choices include intentions such as, to do the job, to repay the loan, to save myself, to get Arthur right, to find the truth, and to make things right. Note that a new intention occurs when something comes to change it. In both drama and thrillers, intentions are portrayed in earnest as the characters struggle to attain a worthy goal.

In drama, pacing is deliberate and flexing to promote audience input through imagery, questions, speculation, anticipation, resolving and reflection of serious emotional caring forces. Time is required to nurture the unseen story, time to comprehend, process, embellish, and respond to what can be multiple story elements. In the thriller, pacing, while moderate, will slow at critical moments to extend the tension and create vicarious pain in the audience. When Michael gets out of his car to look at the horses (13:40), it’s a mystical moment extended to create added tension and set up the huge surprise, the bomb blast.

In drama, timing is flexing and loose. It is usually subtle, vague as complex presentations and strong emotional forces do not always generate a precise unison response. Emotional inertia is sustained, even heightened through pauses. Timing, especially in thrillers, optimizes the tension and stretches it near the breaking point. When Karen Crowder struggles with the decision to have Arthur killed (1:05:39), it is done through subtle implications that leave the audience speculating. Is she going through with this? Her ambiguity and well-placed pauses create the scene’s strong emotional impact. The scene is resolved later when the murder takes place.

Another key timing moment is when Michael receives the check from his boss (1:34:30). There is an extended pause where he weighs his options, taking the money or exposing the wrongs with the secret memo/booklet he holds in the other hand. It’s long enough to get the point across and allows the audience to speculate which way he will go. His timing and uncertainty creates the pressing question, how will this story end?

In this drama/thriller, the premise is highly worthy and has strong rapport with the audience. Powerful opposing forces (polarities) make for empathic characters. The writing is serious and intelligent having compelling arguments. The high moral implications give substance and purpose to the story. Human dilemmas are reflected through vital decisions and their consequences. The premise in Michael Clayton shows us how the truth can be adjusted. A powerful corporation suppresses the truth. However, the moral compass of one character unveils the conspiracy and rights the wrongs done to the plaintiffs in this case.

In the drama and thriller genres, the dramatic flow tends to be more emotional than informational. Emphasis is on the implied or inferred and almost lyrical in delivery. Multi-layered and with complex imagery, strong caring forces unfold gradually through wants/opposition–hero/villain polarization. Gaps are filled in by intense audience involvement in co-creation. In Michael Clayton, the dominant flow is emotional as we are caught up in the emotional struggles and decisions of the three main characters.

The emphasis for desired audience response for a drama is to care, feel and identify with the struggles of the main character(s). Caring ingredients include a sympathetic character in heighten jeopardy earnestly struggling to reach a worthy goal against formidable opposition–winning or failing with a satisfying resolution. In a thriller, the emphasis is to keep the audience on edge and deeply concerned about the harm that may come to the lead character(s). It is to elicit fearful excitement, an intensity of emotions, particularly apprehension and exhilaration generating that all-important thrill. By being in jeopardy, the pressing question is what is going to happen next.

The film, Michael Clayton, is a non-traditional thriller in that the climatic car bomb scene is pushed to the front of the movie. This ups the ante and makes the audience more invested in the story and its outcome. In addition, the identity of the bad guys takes some time to unfold and red herrings are tossed into the mix to deflect this revelation. This creates more interest in the story and the fate of the main character. While the film is a blend of a drama and a thriller, the creative team maintains the appropriate acting style throughout in a consistent manner.

In the final scene (1:47:57) where Michael serves up Karen Crowder’s comeuppance, he does so using his abilities as the fixer/janitor. It’s a risky play, yet he knows what cards she is holding. He cleans up a moral dilemma with a surprising twist that is both clever and satisfying. He turns the tables on her and records her trying to bribe him. The scene continues with a cab ride (1:53:47) in which his facial expressions recap the last four days, the uncertainties, the mistakes, the revelations, and the plan that made things right.

The film won numerous awards including Best Supporting Oscar for Tilda Swinton and Oscar Nominations for George Clooney, Tom Wilkinson, Best Picture, Director, Original Screenplay, and Original Music Score. It also won AFI Movie of the Year Award.

Comedy has a different set of parameters. I picked the film “A Fish Called Wanda” to illustrate how acting elements represent the essence and purpose of the play. This zany screwball comedy relies on farcical elements to bring this hilarious story to the screen. While farce is the dominant style the film, it does slip into straight comedy and is therefore a good example to dissect and discuss multiple acting styles.

“A Fish Called Wanda” is a funny farce about an uptight British barrister (John Cleese) who becomes involved with Wanda, a sexy con artist (Jamie Lee Curtis), her mindlessly macho boyfriend Otto (Kevin Kline), and their ambitious bank robbery and getaway scheme. After the robbery, Wanda and Otto turn in their ringleader, George and intend to take all the loot for themselves. However, they discover the loot has been moved to a secret location. Wanda decides to seduce George’s unhappily married lawyer Archie Leach (Cleese) to find out where it is hidden. The film uses the acting styles of both comedy and farce to unleash this story, and aptly illustrates how specific acting parameters define the genre.

In comedy, reality is distorted, and lacks balance. Proportion is over-emphasized, under-emphasized, and most of all surprising. It is founded on a real truth and real character values. The level of believability is suspended, fragile and detached. Settings are vivid and specific. When the film opens, it does so in a comedic style. As each character is introduced, they appear almost normal. However, when the gang assembles (05:12) to plan the robbery, their true qualities come out and the foundation for humor is laid.

They are a diverse group of characters with idiosyncrasies that can and do get them in trouble. Otto is a macho gun-totting self-style intellectual with an IQ of a gnat. Wanda is a con artist who would double-cross her own gang members. Ken (Michael Palin), the gang’s procurer, is a stuttering animal lover who is bullied by Otto. George (Tom Georgeson) is the debonair leader of the gang sleeping with Wanda. However, behind his back Otto and Wanda have a clandestine sexual relationship while pretending to be brother and sister.

All of these dynamics play into the potential for humor in a reality that is off-center, distorted and lacking balance. Likewise, when Archie and his spouse enter the story (00:34), we see that he is a hen picked husband living with his oppressive self-absorbed wife. This adds another element to the equation and opens the door for more comic situations.

In farce, the level of believability is further suspended and reality is more distorted and exaggerated. However, there is a delicate balance of exaggeration with believability. Incongruent facts and situations, while the corner-stone of comedy, must be restrained enough to be plausible. There has to be an element of truth to them. For example, in the robbery scene (07:25), Otto catches the manager reaching for the alarm bell (08:38) and forces him to stand erect then places an apple on his head and takes aim with a crossbow. Because Otto has been established as eccentric and psychotic, this reality appears plausible.

Behavior in comedy is exaggerated, usually with high energy and definite positive attitude. It is precise is movement, abnormal with wide contrast among characters. The behavior is readable, definitive, open, and outward. In the sequence of scenes beginning with Ken entering the apartment (23:15), he shows the safety-deposit box key to Wanda the Fish, while Wanda, the girl, watches from the bedroom. What follows is a series of situations with each character pushing his or her agenda. Wanda wants the loot, Otto wants to possess Wanda, and Ken wants to know why Otto is in the bedroom with Wanda. While the characters hide details from each other, nothing is hid from the audience. What we see is what we get, and it’s done in a definitive heightened manner. The characters are identifiable almost immediately and this allows the story to move forward with limited exposition.

In farce, behavior is more exaggerated and more energetic. It has a definite positive attitude, broadly painted, underlined, and falsely accelerated. It is executed with bold simple strokes. Before playing the outrageous or ridiculous, it is best to establish credibility. This credibility is aptly portrayed when Archie’s wife almost interrupts Wanda in mid-seduction (47:22). With participant’s traits firmly established, we know we are in for an explosive scene. Ambitious Wanda and jealous Otto hide while the mortified straight-laced Archie tries to explain a bottle of Champagne and a gold locket to his righteous self-centered wife. With these three people in panic, this is classic farce at its best.

In both comedy and farce, emotions are light, decisive, readable, and played predominantly on the surface. Vanity, greed and lust generate the comic richness of this film. Otto’s inflated pride believing he is a superior being produces his running retort, “Don’t call me stupid.” Wanda’s greed forces her to betray her fellow gang members and foster plans to abscond with the jewels. Archie hunger for a real relationship drives his lust for Wanda. Ken is the loyal soldier and with determination, he follows his ringleader’s orders. These emotions become apparent almost immediately even though the characters are divisive and have self-serving agendas.

Comedy intentions are usually meaningful, and pursued with considerable vigor and enthusiasm. Objectives are normally simplistic, apparent, and played externally. In the scene where Wanda and Archie meet (18:29), Wanda pursues the lawyer pretending to be a fan to get his name. Her enthusiasm awakens Archie’s primal urges and he becomes babbling schoolboy again. He is so befuddled by her advances he drives away with his briefcase still on the roof of his car. Her intention, to get his name, is meaningful in that it serves her overall object, to locate the jewels.

In farce, intentions are highly meaningful to the character and pursued with frantic desperation. Let us go back to the scene where Archie’s wife interrupts Wanda’s seduction (47:22). While Wanda and Otto hide, Archie enters the room with a bottle of Champagne from the fridge. He mortified to find his wife seating on the couch. He has a panic-attack and his mind goes into a survival mode. He is surprised with each snowballing revelation. Otto is now a CIA agent, Wanda is no longer behind the liquor cabinet, and Wanda’s gold locket lies on the carpet. In this scene, Archie’s over all intention is to not be caught. This intention is pursued with frantic desperation and while he succeeds, he digs himself a deeper hole when his wife assumes the locket is a gift for her.

Pacing is the rate at which interesting story materials are delivered to the audience. These include dialogue, actions, movement, gestures, and technical aspects such as cuts, lights, and sound. Music is another dimension affecting pace. In comedy, pacing is quick, energetic, fast, rapid, to limit exploration of transparent story where logic and reality are distorted. The quick pace also maintains focus on the lighthearted wit and humor, and replaces dissipating info with new, more exciting information. Usually in farce, pace can become frantic to up the sense of importance.

In “A Fish Called Wanda”, scene length is a function of pacing as short vignettes offer quick glimpses of the story; many having gaps the audience fills in. The montage comparing Archie’s drab life to the sexual escapades of Wanda and Otto (34:54-37:27) allows the audience to project a more romantic pairing, that of Archie and Wanda. The actors aptly portray this contrast.

In addition, in the longer scenes, more complications arise keeping the audience involved. Questions come up that speed up the film, as the audience becomes a collaborator supplying interesting facets of the story. The expectations, judgements, and reflections by the audience play a key role in the success of this film. The actors and the director, Charles Crichton, understand it is far funnier to not say something, and let the audience speculate on what is not being said, than to blurt it out. The imagination of the audience exceeds that of the creative team.

The cast understands this storytelling force. John Cleese, in particular, is highly adept at using readable behavior to generate this collaboration. In the aforementioned scene (47:22) where Archie’s wife interrupts Wanda’s seduction, Archie’s behavior states the unsaid. “What are you (my wife) doing here?” “Where is Wanda?” “Who are you?” (Otto). We relish in seeing him squirm, being humiliated by his own folly. The pace moves moderately fasts as his reactions and dialogues by others fill out this hilarious sequence.

In comedy, timing is an obvious part of the performance. Timing is the ability to sense what is going on in the mind of the audience and use this dimension of time to encourage and enhance the desired response. In comedy, it is highly calculated, highly responsive, building on audience reactions. Sharp accents are used to emphasize, control focus, and punctuate intended humor. In the scene where Wanda visits Archie’s at his office (28:49), Archie learns her full name. There is a long pause where he weighs the possibilities. He is looking to bed this young thing; however, she is an alibi witness in the case he is handling, and thus forbidden fruit. He pauses long enough for the audience to sense this struggle and his reversal of fortunes. The timing establishes his attraction for her and sets up the torrid affair that follows.

In farce, timing is very precise and dynamic taking advantage of accelerated pace and strong beats. It is heavily accented to emphasize and punctuate intended humor. I’m using the example beginning at (47:22) again as it best illustrates timing in a farcical setting. The scene’s inertia is predicated on close calls and expectations of being caught. Precise timing is thus required to sustain this hilarious sequence.

What length of timing is desirable? Delayed timing draws attention to the behavior; therefore we question its authenticity and the emotions behind it. On the other hand, by rushing the timing, the full impact of the behavior is not realized and the humor, suspense, or caring forces are not optimized. Note also that the timing in reactions, pauses, and behaviors varies depending on the importance of the moment. Some moments need more emphasis than others do and the timing flexes to accommodate the desired audience response. The timing in this scene is as good as it gets and due mainly to highly accomplished comedy actors.

The premise in comedy is moderately worthy in an ultra serious pursuit of sometimes ridiculous and irrational goals. Comedy is affirmative in spirit where protagonists triumph and it provides an external observation on human nature. At best, it is a distortion of a truth providing higher insights and better understanding of ones self.

In farce, the premise has little concern with the truth or mirroring life, yet can be founded on highly worthy themes. Whether absurd, ridiculous, satire, sheer tomfoolery, or having completeness of character, the intent of the play is to be funny. Stories are usually structured on “possible, but improbable” and more emphatic in situations than in character.

The premise in this film could be many things; however, my version is as follows. There is dishonor among thieves but not among lovers. The gang is set on double-crossing one another, however, when Archie and Wanda fall in love, the story takes off in a different direction. They combine their efforts, end up on the plane together and leave the country with the loot.

In comedy, the dramatic flow is much more informational than emotional. Rhythmic pointalistic deliveries build upon a simple singular line of thought. Comedy produces almost immediate clarity of wants/opposition–hero/villain polorizations.

Farce tends to be more informational than emotional. It has the externals of comedy and emphasizes antics more than language or character. In this film, the antics of gun-totting Otto and stuttering Ken add to this frantic style of humor. The running gag, “Don’t call me stupid,” (1:04:15) has a huge payoff when Wanda points out his absurd thinking. Film fans have quoted these zingers repeatedly. It is the comeuppance for which the audience has long waited and delivered in a matter of fact way. The information is what is funny.

Patterns play a vital role as they build up expectations and pull us deeper into the comedy. Pattern recognition is a pleasurable engagement for even when we guess wrong there is still a big surprise waiting, one that is likely better than what we anticipated.

A good example of patterns is Otto’s propensity for messing things up with his jealous interruptions. The audience comes to expect this behavior, yet does not know how it will unfold. In addition, with Otto at the wheel there is usually a fender bender due to his insane driving. In the third accident, he stops and shoots the wig off the man driving the other car.

Wanda and Archie likewise have a pattern where something or someone obstructs their romantic rendezvous. When things finally look promising, Archie is caught dancing naked by a family who leased the apartment (1:14:17) he and Wanda were using. The embarrassing situation is resolved in an amicable British manner. In comedy, patterns are punched up to emphasize their existence and comic value.

In this film, the classic three-part joke is used when Ken attempts to knock off the old lady, a witness to the gang’s get-away. The gag, commonly call the triple is a staple item in many comedies. Ken tries three times to snuff out this witness and each time he ends up killing one of her three small dogs. He uses a fierce Doberman Pincher the first time (52:49) and instead of attacking the old lady, the animal snatches up one of the small dogs and scampers away. In his second try (1:02:55), he attempts to run her down on the street, but instead runs over one of her small dogs. For his third attempt (1:18:13) he shoots a wedge holding up a huge concrete block, that plummets downward killing the last dog. He thinks he has messed up again; instead, he is surprised to find that the old woman has died from a heart attack. He can’t believe his good fortune and laughs while others mourn her death.

The irony to this joke is that he’s a passionate animal lover and sorry for their loss. Yet he is exhilarated in accomplishing his goal, that of eliminating a witness.

In the triple, the first item is a stated truth or the expected. The second is a variation reflecting on the first, and the third, with punch line, is a complete deviation from the first two.

In comedy, the emphasis for desired audience response is to surprise the audience in a humorous manner. It is to make them laugh; make them feel that life, with all its frustrations, is still worth living. It stretches the soul toward heights where laughter triumphs over fear and hate. By observing from the outside, we form new perspectives on human nature.

In farce, the emphasis is to surprise the audience in a humorous manner through recognizable characters in panic. This could be via discovery of one’s self, one’s anxieties, facades, or one’s ideas. The constant goal being the belly laugh farce uses the routine and roll–laughter building on laughter through precise timing and interconnecting situations/subject matter.

While “A Fish Called Wanda” drifts back and forth between these two genres, the desired audience response remains focused on surprising the audience in a humorous manner. The dramatic choices are made to facilitate this objective. Emotions are readable and played on the surface. Intentions are highly meaningful to the character and pursued with frantic energy. Pacing is quick, timing precise, and dramatic flow is much more informational than emotional. This selection and arrangement of acting elements defines the acting style, and more importantly, how the ensemble portrays the characters and their story.

The film won numerous awards including an Oscar for Kevin Kline in a Supporting Role, plus Oscar nominations for Best Director, Charles Crichton, and Best Original Screenplay, John Cleese.

Style is an important part of ones dramatic craft. Get in the habit of applying these style considerations to scene studies, auditions and your performances. Explore it by analyzing numerous genres. Then you will be able to create strong credible characters that fulfill the purpose of the play and the efforts of the ensemble cast.. For a more information on this subject, see the EzineArticle entitled, “Acting Styles, What Defines the Differences?”

Is the “Never Pay Policy” Making a Comeback? How to Fight It (Part IV)

In your policy it quite clearly states that no claim you make will be paid. You unfortunately plucked for our Never-Pay Policy, which if you never claim is very worthwhile – but, uh, you had to claim – and there it is.”

-Mr. Devious to Reverend Morrison about the letter from the insurance company refusing to pay the Reverend’s claim for damage to his car that was hit by a lorry while standing in a garage. Monty Python and the Flying Circus, circa 1971.

This is the final article in the “Never Pay Policy” series. The series deals with the fact that, at least in my small part of the world, many carriers are acting as if they sold the proverbial “Never Pay Policy.” When the “Never Pay Policy” goes from being a joke to reality, many people lose. Insureds, whether businesses or individuals, are left to defend and settle claims with their own resources. In some cases, an insurer’s failure to perform has the potential of putting an insured out of business or into bankruptcy. Claimants may face the prospect of not receiving compensation for their injuries. Damaged or destroyed property will not be repaired or replaced.

The prior articles covered some common sense steps that insureds can take to prevent a carrier from acting like it sold a Never Pay Policy in the event of a claim. Unfortunately, an insured can take all of these steps and still encounter a Never Pay approach. Even carriers that are generally responsible may have certain claims adjusters who think it is their job to deny as many claims as possible rather than making an objective and reasonable coverage determination. An insured’s experience with any carrier may turn out to be a crap shoot, depending on which adjuster is assigned. Some adjusters are reasonable. Some are not.

When an insured receives a reservation of rights letter (at least on serious claims) or a denial letter, it is time to consult with coverage counsel. Actually, if there is a serious claim, it is even better to consult with coverage counsel at the outset of a claim. Obviously, if a carrier has filed a declaratory judgment action, which is a lawsuit asking a court to determine coverage, the insured will need to hire coverage counsel to handle the lawsuit.

1. How to find coverage counsel. It is important for insureds to consult with counsel experienced in handling insurance coverage matters. It is tempting for many lawyers to take coverage cases even if they have very little experience in the area. These lawyers reason that an insurance coverage case is just a variety of contract claim, and that there is thus no reason they cannot handle it. I am not suggesting that a general litigator cannot handle a coverage claim, but if an insured is paying hundreds of dollars an hour, it usually makes sense to find someone with experience in the area.

Be aware that insurance carriers have legions of lawyers available to them. Each carrier has “panel counsel” consisting of lawyers from law firms pre-approved to represent the carrier in coverage disputes. In larger or troublesome risks (for example, those that may be relatively small but may set a precedent for other claims), the carrier may involve its national or regional coverage counsel. National or regional coverage counsel typically do little more than represent carriers in coverage matters, and will often fly in from out of state to work with the insurer’s local counsel. In a prior part of my career, I was on one of these teams and, although it is not what I do (or want to do) now, the experience was invaluable. Fortunately, the carrier I represented was one of the good ones.

There is no doubt that the carrier and its lawyers will check out the credentials of an insured’s attorneys. If the credentials show that the lawyer is an experienced coverage attorney, then the carrier will probably take an insured’s case more seriously. An insured will want to engage a lawyer with a lot of experience representing policyholders. Many policyholder lawyers formerly represented insurance carriers. Prior experience representing carriers is an advantage, because it provides insight into how carriers analyze claims and the issues that carriers tend to view as important.

There are resources to find experienced coverage counsel. A referral from a company’s usual business attorney is one method. There are other resources, such as Martindale.com and AVVO.com, which are directories that also rank attorneys. Be sure to review the lawyer’s credentials (most law firms have websites with online biographies), and ask questions about the lawyer’s coverage experience.

2. A word about attorney’s fees. In Georgia, the insured should expect to pay the fees of its coverage lawyer. The fees of the coverage lawyer are not part of the defense obligation (the obligation to provide a lawyer to defend the underlying claim). Even if the insurer sues its own customer and the insured prevails, an award of attorney’s fees is the exception, rather than the rule. This is a flaw in Georgia law that needs to be addressed by the courts or the Georgia General Assembly. The law in other states may differ.

3. Options for dealing with a carrier. The first thing a coverage attorney will want to do is to review the insurance policy and all communications between the insured and the insurer, particularly any reservation of rights or denial letter. After that review, the coverage attorney can advise the insured about possible options. Those options may include the following.

a. Negotiating with the insurer. A coverage lawyer may write a demand letter to the carrier asking it to reconsider its position. The demand may include additional facts that could affect the coverage determination or legal analysis. Sometimes, negotiations are successful.

It should be noted however, that many claims adjusters seem to become personally invested in their effort to deny coverage. Some adjusters seem incapable of being able to look at a claim objectively, particularly once a denial has been made. The only hope in such a situation is the involvement of another person. Sometimes, a supervisor may take a fresh look at the situation. In some instances, the carrier may choose to involve outside counsel. Outside counsel may advise the carrier to take a different approach. Although this sometimes works, carrier representatives and their counsel can be a particularly obstinate lot, so an insured should never count on an insurer changing its position.

Depending on the nature of the denial, an insured’s counsel may put the carrier on notice of a bad faith claim. Under Georgia law the bad faith remedy is limited to a penalty equal to 50 percent of the loss or $5,000, whichever is greater, plus the insured’s attorney’s fees in pursuing the claim for coverage. This is in addition to amounts due under the policy. However, obtaining a bad faith penalty requires suing the insurer. Georgia’s remedies are, in my opinion, far too limited, and virtually invite insurers to act irresponsibly. The law in other states differs.

There is another form of bad faith that may come into play. If a carrier has an opportunity to settle a liability claim within policy limits and unreasonably fails to do so, the carrier may be held liable for any resulting judgment even if it exceeds the policy limits. If a carrier has an opportunity to settle and fails to do so, then coverage counsel may put the carrier on notice that the insured will look to the carrier to pay “excess judgment” over the policy limits.

Negotiating with the carrier can sometimes be successful in resolving claims. In many instances, however, the carrier will be obstinate and will not reconsider its position. This leaves litigation as an alternative.

b. Filing a lawsuit. If negotiations fail, coverage counsel may recommend filing a lawsuit against the carrier. If the carrier has already filed a declaratory judgment action, then counsel will probably recommend filing a counterclaim.A lawsuit (or counterclaim) for coverage is essentially a breach of contract action. Nevertheless, it is a special type of breach of contract action, and some special rules apply.

Because insurance policies are contracts of adhesion — meaning they are drafted by carriers and sold on a “take it or leave it” basis — they are interpreted against the carrier and in favor of the insured. These and other rules give the insured at least a theoretical advantage in litigation. In many coverage cases, however, inexperienced counsel do not take full advantage of the rules. This has led to a number of unfortunate, and, in my view, wrongly decided decisions against insureds.

In reviewing the briefing (the legal arguments filed by the lawyers) in some of these cases, the lawyer representing the insured simply failed to make arguments and cite case law that might have changed the outcome. When an inexperienced lawyer (or one who fails to educate himself) goes up against an insurance company’s hired gun, it often not a fair fight.

What are the chances of winning a coverage case? Obviously, it depends on the facts of the case, the terms of the policy, the lawyers on the other side, and many other factors. The recent Georgia decisions suggest the result is a bit uncertain, as the decisions are not entirely consistent. The law in other jurisdictions varies.

c. Filing a bad faith claim. If an insurer’s refusal to defend or indemnify is objectively unreasonable, the insured may have a bad faith remedy in addition to recovering under the policy. The Georgia remedies were briefly discussed above. A bad faith finding is far from automatic, and requires an insured to show more than than the insurer simply made a mistake in denying the claim. There is no hard and fast rule about when an insurer crosses the line from good faith to bad faith, and the Georgia decisions indicate that a jury should usually decide the question.

In practice and in reviewing the recent Georgia decisions, the ability to prevail on a bad faith claim seems to depend as much on the court one is in as the facts. The federal court in Atlanta sometimes seems to take a very hard line against insureds asserting bad faith claims.

On the other hand, the Georgia Court of Appeals has issued a couple of recent decisions that are far more receptive to a finding of bad faith. In one very recent Court of Appeals decision, the court affirmed the trial judge’s finding of bad faith on summary judgment, meaning that the trial judge found the bad faith so obvious that the case could be decided without a jury trial. This case involved an underlying claim by a building owner against a building contractor resulting from a fire that was negligently started by a subcontractor. The insurance company refused to defend or indemnify the insured based upon a broad interpretation of “business risk” exclusions in the policy, which generally limit coverage for damages to the insured’s own work.

The Court of Appeals found that the insurer’s reliance on the builder’s risk exclusions was incorrect and affirmed the trial court’s decision that the insurer acted in bad faith. The Court of Appeals also quoted approvingly from the trial court’s order observing that the failure of an insurance company to provide a defense where it clearly should have done so could have put a smaller contractor out of business. This is one of the relatively few instances in which a court has expressly observed the enormous real practical consequences of a Never Pay approach.

Perhaps this case will start a new trend. In addition to affirming the trial court’s finding of bad faith, the Court imposed a penalty against the insurer and its appellate counsel for a frivolous appeal. This penalty is rarely imposed. The case appears to indicate that at least some judges are fed up with insurers adopting a Never Pay approach. In theory, at least, the federal court is bound to follow the decisions of the Georgia state courts on issues of Georgia law.

There is case law in Georgia suggesting that an insured may only recover its attorney’s fees in pursuing coverage by proving bad faith, rather than simply prevailing on the coverage determination (proving that the insurer breached the policy). This is true even though another statute allows attorney’s fees in contract cases upon a showing that the other party had been “stubbornly litigious” or had caused “unnecessary trouble and expense.” There is a federal appellate case to the contrary.

The former decisions are particularly unfortunate, because they indicate that a party to a commercial contract – which, unlike an insurance policy is likely to be highly negotiated – has a better chance of recovering attorneys’ fees in a lawsuit over the commercial contract than an insured whose insurance carrier has breached the policy, a non-negotiated contract of adhesion, by incorrectly denying a claim.

There is great irony here because insurance company lawyers love to argue that an insurance policy should be treated the same as any other contract instead of being construed against the insurance company, as Georgia law provides. When the subject of attorney’s fees comes up, however, the same lawyers argue that insurance policies should be treated differently from other contracts.

Once again, this discussion is based on Georgia law. The law in other states in this area varies considerably.

4. Possible future relief for insureds. In addition to the millions of dollars insurers spend on television advertising, as noted in the first article in the series, insurers also spend a lot of money on “governmental relations,” or what might be known colloquially as lobbying. Any change in the current circumstances will surely bring substantial opposition. At least in Georgia, I suspect the carriers pretty much like things the way they are.

Insurers argue that if they are forced to pay more claims, premiums will go up. There are a couple of obvious rejoinders to that argument. First, what do insureds pay premiums for in the first place? Second, insurers rarely seem to take into account the huge costs associated with paying an army of claims adjusters, national counsel, regional counsel and local counsel in trying to support coverage denials.

In many instances, the result is that the insurer has to pay the claim anyway, and sometimes even a bad faith penalty. It would be truly interesting to see the results of a study comparing the costs of the current approach adopted by many carriers to the cost of a an approach that would give the insured the benefit of the doubt in simply paying claims.

I am not suggesting that insurance companies should be forced to pay claims that their policies were never intended to cover. What I am suggesting is that insurers should recognize they are in the business of covering risks. Therefore, doubts should be resolved in favor of the insured, rather than trying to force a claim into an awkward or forced interpretation of a policy term, condition, or exclusion.

Here are a few minor suggestions that would make the playing field a little more even for Georgia insureds.

a. The General Assembly, the Insurance Commissioner and the courts should prevent and give no credence to “Never Pay” provisions in policies or “Never Pay” interpretations of such provisions. It should be clear that an insurer’s fundamental promise is to defend and indemnify claims. Insurers should not be permitted to sell policies with Never Pay provisions. Courts should follow existing precedent and interpret exclusions narrowly so that they do not swallow up the fundamental promise of coverage.

The Georgia Court of Appeals has recently done this in connection with the “business risk” exclusions in commercial general liability policies that insurers have used to try to deny coverage for claims arising from construction defects or negligent construction. Similar results should follow regarding the pollution exclusion, the fungus exclusion and other policy provisions that are sometimes used to try to deny coverage under circumstances that were never intended.

Further, the General Assembly and the Insurance Commissioner should prevent carriers from adopting such blunderbuss exclusions in the first place, or interpreting them to swallow the fundamental promise of coverage.

b. If an insured prevails in a lawsuit against its insurer, it should recover its attorney’s fees. In Georgia, a carrier can deny a claim knowing that it probably faces little risk beyond possibly having to pay the claim, while at the same time forcing the insured to hire and pay for coverage counsel. This can be a double whammy if the carrier has denied a defense and the insured is also having to pay to defend the underlying claim. In many instances, the insured may simply lack the resources to fight.

This allows carriers to engage in economic warfare against their insureds with little risk of consequence. If insurers force their insureds to go to court on coverage and the insured wins, an award of attorney’s fees should be automatic. This rule should apply regardless of whether the insurer or the insured institutes the litigation.

The reverse should not be true. Why? Because the insured has no say in drafting the policy language, does not have access to an army of lawyers, and is typically at an economic disadvantage.

At an absolute minimum, the Georgia courts should overrule the line of cases holding that the general contract statute for recovering attorney’s fees does not apply to insurance coverage cases. An insured, as a party to a “take it or leave it” contract of adhesion should not be at a disadvantage to a party suing regarding a carefully negotiated commercial contract.

c. The bad faith remedy should be made more meaningful. Presently, an insured that prevails in a bad faith action may recover, in addition to amounts due under the policy, a penalty of 50 percent of the loss. Previously, the statute provided for 25 percent of the loss. This is simply not enough to get a carrier’s attention. A multiplier of 200 percent would change this, and such would not be at the radical end of bad faith remedies in other states.

Conclusion. This series has provoked a quite a bit of interest and a little discussion. That is not surprising, as the subject is one of general concern. Almost all businesses and individuals purchase insurance to protect against a wide variety of risks. Monty Python’s “Never Pay Policy” skit is still funny after many years. As is the case with much humor, the skit is funny because it points to a generally accepted underlying truth. It is no laughing matter, however, when insurers deny claims and act as if they were selling Never Pay Policies. The consequences to insureds can be devastating. Until the insurance industry changes its ways or the state legislatures and insurance commissioners take action, insureds must look out for their own interests. Hopefully, this series has provided at least a few helpful observations on fighting the Never Pay Policy.

Search Engine Marketing Mistakes: Common Decision Errors Business Owners Make

Most business owners who attend Search Engine Optimization (SEO) and Marketing (SEM) seminars have similar questions related to promoting their business online. Related to their other online content, Social Media Marketing (SMM) also brings up many questions about what to expect, how it works, how much is needed, and so on. Complicating the topic, there is so much conflicting information “out there” in the public-at-large that business decision makers are often either intimidated, misguided, or both on the topics. Add common gimmicks, fraud, and hidden-agendas to the mix, and the stage is set for people to get duped in their attempts to modernize and promote their business on the web.

Many business owners over-expend with regards to market by signing into binding contracts with commissioned sales people who are more interested in money than relationships or performance. The telemarketing sales person can convincingly “talk the talk” from a scripted pitch standpoint, but they commonly portray a skewed and misrepresented perspective. Most guilty of this type of solicitations are the large, big-name phone book and phone service related companies which opted to get into the online marketing arena as a necessity in the wake of diminishing paper phone directory sales. Though these companies tend to be poor at delivering desired results and decent customer service, business owners tend to buy into the sales pitches because of legacy brand name recognition.

It’s not until later, after spending thousands (with little or nothing to show for it) that the business owner realizes that their money would have been better spent with a skilled marketing company that customizes campaigns rather than following one-size-fits-all, “cookie cutter” recipes. The big phone companies survive via this ongoing cycle of “disposable customers” simply by the law of gross tonnage: They own the phone book databases so they have an endless supply of prospects to approach, and they already have the staff of telemarketers on payroll to exploit the unsuspecting business owners. In other words, when the market changed from paper to paperless, the big phone companies didn’t have to retool as much as they had to retarget. Performance, however, still remains sub-par.

Time and money lost equates to business lost, so many of these business owners try to learn from their mistakes by following the old adage, “If you want it done right, do it yourself”. Unfortunately with SEO, SEM, and SMM, this is yet another compounding mistake with additional negative implications.

Business owners who try to take on SEO, SEM, and SMM themselves, attempting to save money, are later dismayed to realize that their further demise is likely a result of their own efforts. Too often, these folks go through the motions of blogging, article publication, press releases, etc., but they aren’t up-to-date on Google’s ever-changing “best practices” or how to perform effective market research on keywords and target audiences, so their efforts are almost entirely wasted by spinning their wheels doing “busy work”, or worse, even hindering/damaging their search engine placement. More time lost means more business lost. Most of these same folks attempt to use social media as a sales medium rather than a relationship builder, and consequently their Twitter, Facebook, Pinterest, LinkedIn, Google+, YouTube, etc. efforts backfire on them.

Proper search engine marketing and social media marketing campaigns take consistent, ongoing time and effort, often dozens of hours per month. No one has that kind of time to waste, but it happens all the time. And the result of wasting the time by writing ineffective, non-optimized or improperly optimized content for the Web is that they yield to their competition while simultaneously creating a steep hill to recovery from the self-inflicted damage.

Then there is the “reputation management” crowd… smaller, but very distinct. These are business owners who really “torqued off” one or more customers, or who have a “problem customer” or two (we all know the customer who is unreasonable and demanding), and consequently have a highly visible-but very negative-internet presence from customer reviews and bad press. These folks have a really tough row to hoe, because they not only have to elevate their “good” face to the public, but they simultaneously have to bury the skeletons in their closet. (i.e., it doesn’t help XYZ Company to have their website found on Google’s page one for competitive keywords adjacent to an Angie’s List review that says “Avoid XYZ Company at all costs”. It becomes a multi-front war). Again, this scenario creates a sense of desperation for business owners who become low-hanging fruit to be exploited by unscrupulous companies and freelancers who take advantage of the situation by promising great results in unrealistically short-term (immediate) time periods at ridiculously low prices.

Keep in mind, the strategy and successful financial model of many profitable marketing companies is to undercut the competition with prices so low that a prospective customer’s judgment is clouded by the wishful thinking of massive cost savings, and the binding 12-month contract guarantees income to the marketing company by leveraging the threat of damage to the customer’s credit rating should the customer default. In this type of business model, volume of customers makes for high profits. Performance and producing a positive return on investment (ROI) for the customer becomes unimportant. Customers become “disposable” and have little to no recourse but to wait out the contract term and then try again with a different provider.

It’s ugly out there, folks. Your best defense is to develop a dialogue, rapport, trust, and confidence before signing a contract. Don’t make a decision based on the pitch or the price. Do your homework and research the company first. Search for complaints and customer reviews online. Check out portfolios. Spend the time up front before you commit the dollars (and lose the time) after-the-fact.

Unfortunately, there aren’t a lot of “plain English” resources to reliably and impartially spell out what’s real, what’s myth, what’s involved, what it should cost, etc. On the flip side, there is an abundance of agenda-based sources with convincing and alluring marketing materials that persuasively target your money. Consequently, there are five major inhibitors to the business owner becoming an informed website marketing decision maker:

  • SEO, SEM, and SMM companies tend to be guarded in sharing the information because that’s what they get paid to do. On one hand they don’t want to turn business away by showing their customers how to fend for themselves, while on the other hand, reputable companies want to protect their customers from self-destruction. Showing a business owner how to do SEO/SEM/SMM themselves out of context from the “big picture” of their specific marketing scenario is like showing a four year old how a loaded gun works and then handing it to them and saying, “Be careful, it’s dangerous”… “Um, okay, Dad. {Bang}.”
  • Even if a marketing company shares the SEO/SEM/SMM information outright with a customer, the volume, depth, and frequency that the information changes makes it impossible for the business owner to do it themselves (effectively) without practical experience. (i.e., a passenger on an airliner can recognize a smooth landing, but it doesn’t mean they can land the plane. Even if the pilot demonstrates it once to the passenger, if the passenger tries it alone without direct supervision, someone’s going to get hurt.)
  • The nature of the information is technical, and many (most) business owners aren’t. Business owners are very good at running their business and providing products & services within the markets they work within, but just as they hire accountants to do their taxes and lawyers to handle legal affairs, they should work with Internet Marketing Specialists who are up-to-speed on the latest rules, best practices, techniques, etc.
  • There’s more than one way to accomplish the task of effective marketing, but creating an effective strategy and campaign requires a consistent approach. With all of the conflicting information available from credible, experienced providers, business owners become frustrated and befuddled, often feeling like they’re being lied to. It’s unwise and unproductive for a do-it-yourselfer to attempt to mix & match everything they hear in attempts to end up with an effective approach that works. To illustrate, there can be two ways to get from your house to the food store. The first way involves a helpful advisor who says, “Turn left out of your driveway, go straight for two blocks, turn right, then turn left at the next intersection and you’re there.” The second advisor says, “Go straight out of your driveway for three blocks, then turn left, go straight for a block, then make another left and you’re there.” Though both ways get you from point A to point B effectively (i.e., neither advisor lied), if you try navigating on your own and you decide to use only the “left turn” instructions from each of the advisors, you will never reach your destination. In fact, you might get very, very lost. Likewise, it isn’t such a good approach for a decision maker to apply solely the common things they hear from different experts to perform their own SEO/SEM. Too often, do-it-yourself customers try to “play it safe” by only performing the steps that they have heard from multiple sources, operating under the misconceptions that the “common ground” must be right and if they ignore the individual differences they’ll be safe. Though the individual strategies used by different providers might work great for each respective provider, and there may be some similar factors between the various sets of instructions, selectively choosing only the overlaps between them probably won’t produce desired results. Done properly and effectively, SEO, SEM, and SMM involve big picture strategies that must be examined in context.
  • Most business owners don’t have the time or the desire to do what it actually takes to market via the web on a consistent, ongoing basis. They’re too busy managing their business and they don’t want to become website marketing specialists in the spare time that they don’t have. Even modest campaigns take several hours each week to implement properly. Large campaigns often require teams of people working in collaboration simultaneously each week (dozens of hours) to effectively penetrate a market for a positive ROI.

It’s good advice to stay away from subscription-based companies that offer “bargain basement” pricing but can financially hold customers hostage for a year, after which any listings and content may be deleted upon termination of the service contract. Beware of companies that claim copyright to the content you provide to them. Ensure that your contract does not require you to sign over your content or prevent you from using content that they produce for you as a work-for-hire. Many customer complaints about website design and marketing companies stem from businesses who discover all-too-late that they paid for a website but must abandon it (or face copyright infringement) if services are discontinued.

Lastly but important, if a marketing company quotes a price to optimize your website and marketing before they evaluate your content and analyze your specific market, walk away. There is a huge difference in work between optimizing a seven page website and a 30-page website, or optimizing a brochure-style site versus an e-commerce site with 2,000 items in a shopping cart catalog. How then can a credible marketing company legitimately quote a flat rate price to optimize a website for search engines without taking your unique situation into consideration. Promoting the site to your target market is equally unique, so avoid anyone who offers a price without considering your unique goals, market conditions, etc. Every business and every market locality is different, and your business needs an individual consultation to assess what’s best for you. If you find yourself picking services based on a pre-defined pricing menu, you likely won’t be happy with what you are served.

Bottom line, it’s essential that business owners and decision makers take the time to do their due diligence researching a company in order to make an informed decision. Some may decide to try it themselves. Some may decide to hire a firm. Some may decide to reject the whole notion of Internet marketing. But forewarned is forearmed, and it’s essential to be comfortable in making an informed decision.