Steven Schulwolf’s Post

Great meeting chairing the ABA TIPS Dispute Resolution Committee. ABA TIPS Section In the background is the Cyber and Data Security committee and Dan Cotter

Mediation that will blow your doors off! Major successful compromise yesterday. When in Kauai everyone tells you to take a helicopter ride. So, there is one big decision - doors off or on! To me, easy decision: the wind, the better pictures. No doors, please. Beth: Umm, no, we need doors. Compromise - Beth up in the cockpit with a door. Me in the back with no door. A win-win, just like mediation. . . . . OK, this might have been slightly more awesome! :)

I didn't need LinkedIn to send me a note telling me my analytics had declined since I have not posted in a few days. . . . So, what's up, Steve? First, I atoned for a year's worth of sins, one of which was I completely had forgotten to double check my calendar for the high holidays this year. So, while I know somewhere up there my dad was mad, he probably thought it was cool that I was able to participate in a memorial Yom Kippur service on a beach and I broke the fast in Kauai. He loved the beach. Later this week we have leadership meetings for ABA TIPS Section, but Beth and I got here early and took a few days to enjoy the island. But this post is not to rub it in that I am in Kauai and you are not (OK, not completely). Yesterday my wife and I completed an 8 hour hike to Hanakapiai Falls. And since this is a professional platform, here are the similarities between hiking and mediation: While a shorter mediation is better than nothing, like hiking, sometimes you need all day to get to the promised land. After 4 hours we could not even see the falls! Everyone has their own pace. My wife is deliberate with every step. Maybe its hubris, but I keep moving forward and trust my feet to land on solid ground. Beth needs to feel 100% in control . . . I trust the process. I see a little of me and Beth in every party. In the end hiking, like mediation, is a lot of monotonous steady movement interspersed between challenges. I am an optimist. When I get to a difficult stream crossing my default is to figure out how best to move forward. Beth is more hesitant. In the end, just with parties at mediation, I can offer advise and perspective, but ultimately they have to take the next step themselves. When it works, you might feel exhausted, but the view from resolution is worth it. Aloha.

Next week ABA TIPS Section is having its Fall Leadership Meeting in Kauai. It is a tough assignment, but as the Chair of the Dispute Resolution Committee I look forward to attending and am proud to be a sponsor of the conference. It is fitting that we head to Hawaii as the Hawaii Supreme Court just issued an important ruling answering two certified questions dispositive on the question of whether an insurer owed a duty to defend gas companies for emitting greenhouse gases. The Court resolved two issues. First, in favor of the policyholders, it determined that reckless conduct could be an accident for purposes of insurance. Clarifying the standard the court noted that if an insured did not intend harm with practical certainty then there still could be an accident. The next issue was whether greenhouse gases are pollutants. The largest coverage matter I ever litigated was whether there was insurance coverage for improvements required at certain coal fired utility plants. It was over $1 Billion dollars. Ultimately that case turned on whether there was an occurrence and whether the damages sought were business expenses or property damage. But because of my involvement in that case I was invited to the ABA TIPS ICLC annual conference and was on a panel with an attorney from Anderson Kill to discuss issues related to emerging areas of climate litigation. Twelve years later these issues are still emerging. The absolute pollution exclusion is a unique provision. Most jurisdictions find it overly broad such that it could apply to anything. Slip on some oil in the parking lot? Oil is a pollutant so no coverage, right? The general rule is if an exclusion is ambiguous it is not enforced. Yet, the majority of states apply the exclusion to "traditional environmental claims." Here, the Hawaii Supreme Court determined that suits against oil companies for discharging gases into the environment were traditional environmental claims (even if they are relatively novel). As such, the exclusion applies and there is no coverage.

I have a challenging day in front of me. First, I got the flu shot yesterday and have some flu symptoms (which has never happened to me before). Next, my mediation today is court ordered, which can be tricky if the parties have the mindset that they only need to check a box for the court. It is a pro bono mediation in which one party is represented and the other is not. Those cases can be tricky especially because often the unrepresented party is seeking legal advice. Finally, I recently got a large new monitor. It raised my camera and now people can see more of my office behind me. Usually not a problem because it displays two sleeping greyhounds which have a tendency to calm people down. BUT . . . . this is a malpractice claim against a vet. I would prefer not to rub the plaintiff's nose in the fact that I have two healthy dogs, but our new puppy will not take kindly to not being in the room. So, while I usually am not a fan of fake backgrounds, I think that might be the plan today. Creating the mood for compromise sometimes involves assessing whether these guys might help.

This year I was a bad son because I had not put the High Holidays on my calendar. So we had to find a home for our ACL tickets and left Austin to visit my mom this weekend for a belated New Years. For those that don't follow me and may have missed some of my posts we had to move my mom into assisted living after my dad died. She is now in NC near my brother and her great grandchildren. Las Vegas is the city of gamblers and I took a gamble earlier this year when I gave into my mom's demands and took her to Vegas. So many things could have gone wrong, but that's her happy place and it bought me 3 months of not being on the receiving end of her claiming I had stolen her life. Sure she still said it, but there was not the edge it had since we made the decision to move her two years ago. Despite complaining about not being a "real" person anymore, my mom has exceeded expectations in her new home. She loves the arts and crafts and runs various game nights. But sadly many of her new friends have died, she hates the food and has become more depressed. It's hard for me to help because she blames me for her lack of independence even though deep down she understands. I am not the person to whom she can vent her problems since, to her, I am a part of those problems. All I can do is be there and make sure she is in a good environment. I tried this weekend. But on Friday, after lunch, mom had had enough and wanted to go back to her home rather than meet up with me and my brother. On Saturday when I called her she also wanted to stay in. But with the skills of an effective mediator I finally got her out of the house to see her great grandchildren! :) She had fun and I am now back in Austin. Good results for my favorite client. My niece's hubby, an award winning BBQ chef, passes the meat inspection.

My mom really wanted me to love the piano. I took lessons for longer than it was necessary to conclusively demonstrate that I lacked even a smidge of musical talent. But it was not a complete loss. The piano teacher's son was a little older than I and was told he needed to get rid of his baseball card collection. Opportunity knocked and led to the sale of the century. Two huge boxes for $20. I spent the rainy days in my youth flipping baseball cards against the wall with friends. I think, but can't be certain, that I had the sense to not do that with the most valuable of my cards. OK, probably not. Rookie cards are considered the most valuable and I have several that, if they were in mint condition, would be worth some real money. The photo has rookie cards for: (1) Nolan Ryan; (2) Jack McDowell; (3) Robin Ventura; (4) Rickey Henderson; (5) Eddie Murray; (6) Paul Molitor; (7) Andre Dawson; (8) Frank Thomas; and (9) Mike Schmidt (and Ron Cey). It might be a Chicago-laden sheet, as George Brett, Robin Yount and Dave Winfield rookie cards are pretty good too, but didn't make this page. So why the talk re baseball cards? Yesterday, in Alt Platform v. Beckett Collectibles, Judge David Godbey (N.D. Tex) denied defendant's summary judgment motion in a case involving a rating the authenticating sport memorabilia company assigned to a Steph Curry rookie basketball card. Based on the rating on 9.5 Gem Mint, a predecessor buyer paid $168,000 for the card. Unfortunately, the card had been trimmed -- a way to make it seem in better condition. The owner of the card sued. The defendant argued the SOL had run, but the court applied the discovery rule. After defendant appraised the card it was sealed. It was impossible to know the card had been trimmed until a third-party removed the seal and inspected it. Judge Godbey also rejected the argument that the current owner lacked standing to sue for negligent representation saying such a rule would dramatically undercut the entire sport card certification industry. Finally, the Court determined that the mint condition rating was not a "pure expression of opinion." Under the totality of the circumstances the defendant's rating indicated that the card was not altered, an incorrect statement of fact. As such, the plaintiff could proceed with its negligent misrepresentation claim. So, putting aside that none of my cards is in mint condition, which one of them do you think is worth the most? Any favorites? Did you collect growing up?

While tonight it will be brisket for the Jewish New Year, last night it was nachos with folks from the Insurance Section of the bar. It was a fun time. Happy New Year's for all who celebrate and best of luck for all who took the insurance specialization exam. So, what's your go-to appetizer?

Implementing technology is a key for any business and, in my opinion, is a great equalizer for smaller entities like my one man shop (I think I am inspired today by my new, large curved monitor - game changer). I try to keep up on technological changes and their impact on the legal profession. Susan Guthrie is a great resource and advocates for the use of AI in mediations. The American Arbitration Association, of which I am a panel member, is also always looking into ways to incorporate technology into our arbitrations. I know it is inevitable, but when it comes to mediation I still have my reservations about AI and have written about my concerns in articles for the Data & Cybersecurity and Dispute Resolution Committees for ABA TIPS Section. My two main concerns are confidentiality and how to maintain the appearance of neutrality while avoiding debates over the wording of prompts for ChatGPT. Just like Westlaw replacing Shepards and the books, I know change is inevitable. My articles analogize it to jumping into a cold lake (Barton Springs for the Austinites). I will get there, but I need more data points. Data is key to making good decisions. That's why the U.S. Department of Transportation National Highway Traffic Safety Administration requires driverless vehicles to immediately report data re accidents. General Motors is paying a $1.5 million fine for failing to timely disclose an incident where one of its driverless cars hit and dragged a pedestrian. I admit I was not ready to get into a driverless car. But I was hoodwinked. Earlier this year I spoke at CLM Alliance (Claims and Litigation Management Alliance) in San Francisco. Unfortunately, while I was away my wife took our poor Ellie the greyhound to the emergency vet and I flew back to Austin to say good bye before heading to Chicago for a large mediation. Then my flight to Austin got canceled. I was lucky and stayed the night in San Francisco with friends who did their best to cheer me up under the circumstances. "We are going out for dinner and you need a drink," they correctly proclaimed. In a daze I got into what I thought was an Uber. We had been driving for 5 minutes when giggling my friend pointed to the empty driver's seat. "Holy, s%$@." Now as far as data points go it was an extremely small sample size, but I was very impressed at how the car handled things like a four-way stop sign where everyone arrives at about the same time, how it tracked pedestrians and overall how well it drove. When we got I realized it had more radar looking devices than most large ships. Impressive . . . . but sill scary. So, what about you, what would you do first: (1) Ask ChatGPT to assist in your mediations, or (2) drive in a driverless vehicle?

Henry Moore and I are sponsoring tomorrow's networking event for the Insurance Law Section of the State Bar of Texas, which is after the second insurance certification exam. Curious about the exam? Learn more about it and how to prepare. The 25th anniversary edition of the Journal of Texas Insurance law is now out. Robert Cunningham was kind enough to thank me for my role in providing free webinars for section members. There was a lot of thanks to go around as he highlighted the excellent work by other council members in furtherance of our mission. But since we are talking about the Journal kudos to Jason McLaurin for putting it all together. I had the pleasure of being the second editor for Mark Ticer and Jennifer Johnson's piece on Misrepresentation. The bulk of the edition includes notes from prior section chairs and is filled with history, wisdom and tips. Read it for yourself, but some points we can all discuss tomorrow: Ernest Martin was the first chair of the Insurance Section and was inspired after having attended an ABA meeting in Tucson. Having been a presented at both, his vision has been successful. I have had the pleasure of moderating multiple presentations by Christopher Martin. In his piece, Chris recounts the early difficulties of starting a Journal from scratch. We owe much to his hard work and dedication. As he points out the Journal, when initiated, was one of a kind and developed into fertile ground for courts to cite as persuasive authority. I first met the late, great Mike Huddleston at a networking event for the American College of Coverage Counsel: His advice that “Building relationships is one of the most important things you can do in any type of law practice, but especially in insurance” rings true in his absence. His warning of whether a case is “Too Complicate to Win” is one I often raise in mediation and his admonition "Beware of the lawyer who responds to you softly and simply without hyperbole or rancor" is sound advice. We also lost John Tollefson too soon and the note from his "proud" partners, Beth Bradley and Stephen Melendi, reminds us to enjoy the time we have with our colleagues while we still can. While Lee Shidlofsky's central point seems to be that he is a lot younger than other past chairs, he recounts how as a young lawyer he asked lots of questions and parked himself in the offices of those more experienced. He also writes about civility and having a national practice. As someone whose wife dragged me to Austin, where Lee mediates, I can vouch for his generosity in giving me time, advice and encouragement. When I first met Lisa Songy we quickly turned to baseball and her love of the Astros. It is the playoffs and as Lisa writes, "So, I would encourage all young lawyers to go to the in person events, raise a glass with a colleague or opposing counsel, and get to know them as a person, not just as a lawyer." Happy to play a small role in continuing the tradition. Cheers.