Beyond Structured Settlements

2007 Advanced Elder Law Institute

The National Academy of Elder Law Attorneys (NAELA) hosted its 2007 Advanced Elder Law Institute November 2-4 at The Peabody Hotel in Memphis, Tennessee under the leadership of NAELA's 2007 President Mark Shalloway and NAELA's 2007 Institute Chair Christine A. Alsop.

Titled "Elder Law and Advocacy: It's Now or Never", the NAELA conference featured 24 outstanding and diverse presentations. In addition to 275 NAELA members, 23 law students attended. NAELA's 2007 law school writing competition attracted 26 submissions.

Highlights from the Advanced Elder Law Institute:

• The 24 presentations included four breakout sessions offering multiple program options plus extensive supporting written materials.
• Tim Nay and Stephen Dale were honored as recipients of NAELA's 2007 Powley Award and Gelardi UnAward respectively.
• Mariam Piven Cotler, a bioethicist, presented the 2007 Clifton Kruse, Jr. Professionalism and Ethics Luncheon address.
• 21 exhibitors confirmed a growing awareness that NAELA's 4700 members represent an important market for many product and service providers.
• NAELA's Not Ready For Prime Time Players performed two amusing scenes from "Sly Fox" with proceeds donated to the Alzheimer's Association of Memphis.
• NAELA's PAC sponsored a tour of Graceland with dinner at the Elvis Presley Car Museum.
• NAELA's President Mark Shalloway impersonated "The King" (born in 1935) as a 72 year old senior citizen complete with walking supporter and nurses.

From a structured settlement perspective, the following NAELA presentations were especially valuable:   

• "Representing the Unwary Client After the Purchase of Unsuitable Annuities"
  
  • Andrew S. Friedman, an Arizona plaintiff attorney who specializes in class action lawsuits, summarized current class action lawsuits against insurers and insurance agents who sell deferred annuities to senior citizens.
  • None of the defendants Friedman identified appear to be NSSTA or SSP members.
  • Although the annuity products (equity-indexed vs. fixed annuities) and the sales targets (elderly persons vs. personal injury victims) are different, structured settlements (at least the primary market) appear to share many of the business practices Friedman described.
  • According to Friedman:
    • The equity-indexed annuities are sold through "independent insurance agents";
    • Many of these insurance agents:
      • Promote their professional expertise with:
        • Bogus credentials (example: "Certified Estate Planning Specialist") resulting from a one or two day "certification program"; and
        • Assurances that state insurance departments regulate insurance sales practices - which, according to Friedman, is totally inadequate to prevent sales abuses.
      • Invariably recommend annuities and do not sell any other product;
      • Do not undertake any due diligence to prevent misleading or incomplete sales presentations;
      • Promise high rates of return, safety, liquidity and assets sheltered from potential creditors with no taxation;
      • Intentionally conceal or fail to disclose important information about their products;
      • Engage in the unauthorized practice of law;
      • Make sales misrepresentations and omissions - for example: "you don't pay me anything".
      • Develop marketing and sales materials that appeal to vulnerable elderly investors and exploit their fears of risky or insecure investments and living out their retirement years without financial security.
    • The insurance companies pretend to be innocent and to know nothing about these allegedly unethical business practices;
    • The class litigation claims include RICO conspiracy charges against three groups:
      • Annuity companies;
      • Insurance sales agents;
      • Related companies that assist with product development, marketing and administration.
• "Advocating for the Most Vulnerable: Financial Exploitation Lawsuits to Discover and Recover Assets Stolen from Persons with Disabilities"
  • Charles P. Golbert, Deputy Public Guardian for the Office of the Cook County Public Guardian, explained how financial exploitation of elderly and disabled persons is becoming more common and widespread.
  • Golbert summarized the common legal theories for recovery:
    • Incapacity;
    • Undue influence, coercion and duress;
    • Breach of fiduciary duty; and
    • Fraud.
• "Comprehensive Representation of Personal Injury Plaintiffs and Special Needs Trusts"
  • Frank Johns, an expert in disability rights, special needs trusts and legal ethics, outlined a process for elder law attorneys to negotiate their engagement for special needs trusts in personal injury litigation.
  • Johns' presentation included annotated documentation addressing as many as five potential roles for elder law attorneys:
    • Drafting the special needs trust;
    • Appearing in court to obtain approval of the trust;
    • Drafting a qualified settlement fund;
    • Administering a qualified settlement fund;
    • Drafting an RFP for potential structured settlement consultants;
  • Johns' proposed RFP for structured settlement consultants:
    • Addresses structured settlement:
      • Roles;
      • Expertise; and
      • Services.
    • Does not currently address structured settlement compensation issues.
• Clifton Kruse, Jr. Professionalism and Ethics Luncheon Address
  • Miriam Piven Cotler's presentation was one of multiple NAELA programs that addressed ethical issues;
  • Cotler warned against common perceptions and misperceptions about the elderly including the dangers of becoming paternalistic.
  • According to Cotler, when the primary issues relate to power and control, "you can forget about ethics".
• "Why Can't We All Just Get Along: The Battle Between Special Needs Trusts, Retirement Accounts and Tax Rules"
  • Bradley J. Frigon, a NAELA Director who recently participated as a featured speaker at the NSSTA 2007 Fall Regional Meeting, addressed this complicated relationship of overlapping and sometimes conflicting laws.
  • One recommended follow-up would be a similar presentation about the relationship among special needs trusts, personal injury settlements and tax rules.   
    
  • Concept maps represent a valuable communication tool for explaining and discussing complex overlapping legal rules.

Congratulations to NAELA for an educational and enjoyable Advanced Elder Law Institute.  NAELA's 20th Anniversary 2008 Symposium will take place May 14-18 at the  Hyatt Regency Maui Resort and Spa.

For additional S2KM reporting about NAELA, see:

• NAELA Annuity Policy White Paper
• NAELA 2006 Advanced Institute
   

Web 2.0 for Lawyers Concept Map

This blog post re-publishes an updated S2KM concept map titled "How Web 2.0 Impacts Lawyers" developed with Dr. Barbara Bowen, Managing Director of Sound Knowledge Strategies.

Related resources:

• Barbara's audio interviews with Ned Arthur of Truffle Media Networks:
  • S2KM Podcast Tape 10 - discussing the "Web 2.0 for Lawyers" concept map;
  • S2KM Podcast Tape 4 - introducing Barbara and concept maps.
• A "Web 2.0 for Lawyers" wiki developed with Denham Grey and featuring Barbara's concept map.
• A blog post by Luis Suarez about the evolution of Knowledge Management.

In addition to Barbara's audio interviews, the Web 2.0 for Lawyers concept map includes:

• Six (6) embedded (linked and related) concept maps
• Improved links for:
  • Web 2.0 Google searches
  • Web 2.0 commentators including:
    
    • Tim O'Reilly
    • Dion Hinchcliffe
  • Web 2.0 commentators who focus on lawyers including:
    
    • Professor Lawrence Lessig; and
    • The Kennedy-Mighell Report.

S2KM will continue to feature leading "Web 2.0 for Lawyers" commentary and resources on this blog - including periodic updates and improvements for the S2KM-sponsored Web 2.0 for Lawyers concept map and wiki.

S2KM Podcast Review - 1

This blog post highlights and summarizes S2KM's first six audio podcasts which can be subscribed to and are accessible from the upper left corner of S2KM's blog: "Beyond Structured Settlements". Future S2KM reviews will also highlight podcasts from other structured settlement podcast sites including Ringler Radio, The Settlement Channel and The Factoring Channel.

Truffle Media Networks - S2KM initiated its own podcast channel (S2KM Podcast Channel) June 10, 2007 in collaboration with Truffle Media Networks.  Ned Arthur of Truffle Media hosts S2KM's podcasts. During the past six weeks, S2KM and Truffle Media have begun to develop a collaborative public podcast library.  We intend to continue this collaboration throughout 2007.

Preliminary S2KM podcasts focus on these topics and people:

Participant introductions

• Ned Arthur - S2KM Podcast Tape 1 introduces S2KM Podcast host Ned Arthur and Ned's company, Truffle Media Networks. In Tape 1, Ned and Patrick Hindert, S2KM's Managing Director and blog editor, discuss Ned's background and provide an overview of Truffle Media Networks. They also discuss the application of podcasting to the following industries:
  • Structured settlements - including the primary and secondary United States markets
  • Personal injury settlement planning
  • Special needs planning
  • Secondary insurance markets for annuities and life insurance
• Barbara Bowen - S2KM Podcast Tape 4 introduces Dr. Barbara Bowen, Managing Director of Sound Knowledge Strategies. Barbara is a knowledge management (KM) expert who specializes in eliciting and visually representing tacit knowledge to achieve shared mental models. In Tape 4, Ned and Barbara discuss Barbara's educational and professional background and introduce concept maps. In subsequent S2KM podcasts, Barbara and Ned will discuss specific S2KM concept maps including "How does Web 2.0 Impact Lawyers".
• Joseph Dehner - S2KM Tape 5 introduces Joseph Dehner, a partner in the law firm Frost Brown Todd and co-author of "Structured Settlements and Periodic Payment Judgments". Ned and Joe discuss Joe's historical study of, and role within, the structured settlement industry beginning in 1977. Ned also elicits Joe's preliminary S2KM podcast analysis of structured settlement public policy. Joe will be providing additional podcast commentary about structured settlement public policy for S2KM during the next couple of weeks.

Supplemental S2KM reporting - The following S2KM podcasts supplement prior S2KM blog reporting:

• Special Needs Attorneys - In S2KM Podcast Tape 2, Ned and Patrick discuss the relationship between structured settlements and special needs attorneys. Related S2KM commentary and analysis includes:
  • Structured Settlement Law - a public wiki S2KM developed for a June 12, 2007 presentation to the Academy of Special Needs Planners.
  • Academy of Special Needs Planners - an S2KM blog post reviewing the Academy's March 2007 Annual Conference.
  • Inconvenient Questions - S2KM's three-part series about the Deficit Reduction Act of 2005 and its potential impact on structured settlements.
• Structured Settlement Mid-2007 Report - In S2KM Podcast Tape 3, Ned and Patrick identify and review important mid-2007 structured settlement industry developments as highlighted in a prior S2KM blog post. They also review June 2007 structured settlement newsletters from the law firms Drinker Biddle and Pullman & Comley.
• AAJ 2007 Annual Conference - In S2KM Podcast Tape 6, Ned and Patrick review the American Association for Justice (AAJ) 2007 Annual Meeting which occurred in July 2007. S2KM's blog coverage of the AAJ meeting included three posts. S2KM and Truffle Media will be publishing additional AAJ Conference podcast reviews in August featuring other structured settlement stakeholder attendees.

For additional information about podcasting, see S2KM's prior blog post "Introduction to Podcasting" which features an embedded concept map developed by Barbara Bowen.

How the Primary Market Views Factoring

How the Primary Market Views Factoring root,
originally uploaded by Patrick Hindert.

This concept map was developed for S2KM Limited by Barbara Bowen of Sound Knowledge Strategies was originally distributed by Patrick Hindert as a hardcopy presentation handout at the 2006 "Affiliate Member Conference" hosted by the National Association of Settlement Purchasers (NASP) at the MGM Grand Hotel in Las Vegas on October 19-20, 2006.

You can click on the concept map to see a larger version which is posted in flickr.  To access the links and sub maps embedded in this concept map, however, you will need to view the concept map in this alternative format.  Please also see a second related concept map titled: "Overview of the Structured Settlement Market" which appears in a previous S2KM blog post with that title.

The following structured settlement market definitions may be helpful when reviewing this concept map:

Primary Market - The "primary" structured settlement market consists of stakeholders involved in the original sale of structured settlement products including annuities, trusts, custodial accounts, reinsurance - and various "blended products" like Medicare set-aside arrangements (MSA) and special needs trusts (SNT).  These stakeholders create the structured settlement funding in the context of resolving a personal injury claim.

Secondary Market - The "secondary" structured settlement market consists of stakeholders involved in the transfer or sale/purchase (aka factoring) of structured settlement payment rights created by the primary market as part of a personal injury settlement or periodic payment judgment.

Overview of the Structured Settlement Market

Overview of Structured Settlement Market,
originally uploaded by Patrick Hindert.

This concept map was developed for S2KM Limited by Barbara Bowen of Sound Knowledge Strategies and was originally distributed by Patrick Hindert as a hardcopy presentation handout at the 2006 "Affiliate Member Conference" hosted by the National Association of Settlement Purchasers (NASP) at the MGM Grand Hotel in Las Vegas on October 19-20, 2006.

You can click on the concept map to see a larger version which is posted in flickr.  To access the links and sub maps embedded in this concept map, however, you will need to view the concept map in this alternative format.  Please also see a second related concept map titled: "How the Primary Market Views Factoring" which appears in a subsequent S2KM blog post with that title.

The following structured settlement market definitions may be helpful when reviewing this concept map:

Primary Market - The "primary" structured settlement market consists of stakeholders involved in the original sale of structured settlement products including annuities, trusts, custodial accounts and reinsurance - and various "blended products" like Medicare set-aside arrangements (MSA) and special needs trusts (SNT). These stakeholders create the structured settlement funding in the context of resolving a personal injury claim.

Secondary Market - The "secondary" structured settlement market consists of stakeholders involved in the transfer or sale/purchase (aka factoring) of structured settlement payment rights created by the primary market as part of a personal injury settlement or periodic payment judgment.

Concept Maps

What are concept maps? 

How do concept maps impact:

• Education generally?
• Specific knowledge-based industries such as law or structured settlement or personal injury settlement planning?

How do concept maps interact with other Web 2.0 tools such as podcasts, weblogs, wikis and Voip?

Robert R. Hoffman, Ph.D, a senior research scientist at the Institute for Human and Machine Cognition (ihmc), addressed the topic: “Applications of Concept Maps” at the University of Cincinnati's new Recreation Center on April 20, 2006.  The Rec Center is an exciting new addition to the UC campus and provided an outstanding venue for Dr. Hoffman's presentation..

Sponsored by UC's Center for Enhancement of Teaching & Learning, Dr. Hoffman:

• Summarized the theoretical and research foundations of concept maps:
• Provided guidance for building concept maps ; and
• Highlighted concept map examples involving education, knowledge management, problem solving and collaboration.

Dr. Hoffman is a Fellow of the American Psychological Society, recipient of a Fulbright Scholar Award, and an Honorary Fellow of The British Library, Eccles Center for American Studies. He received his BA, MA, and PhD in experimental psychology at the University of Cincinnati, where he also earned McMicken Scholar, Psi Chi, and Delta Tau Kappa Honors. He is currently a Senior Research Scientist at ihmc in Pensacola, FL.   

Dr. Hoffman has been recognized internationally for his research on human factors in technology for terrain analysis and weather forecasting, the psychology of expertise, the methodology of knowledge elicitation, and human factors issues in the design of workstation systems and knowledge-based systems.  Hoffman's most recent experiments have investigated novice and expert interpretation of aerial thermograms and meteorological satellite images. Another current project involves an effort to define the methodologies for human-centered computing and cognitive technologies.  Dr. Hoffman is an advocate of concept maps and an expert in their design and application.

Originally developed by Joseph D. Novak, concept mapping is defined in wikipedia as “a technique for visualizing the relationships between different concepts.  A concept map is a diagram showing the relationships in between concepts”.  wikipedia also identifies and describes specific applications for concept maps - many of which Dr. Hoffman featured in his presentation. Dr. Hoffman differentiated concept maps (aka cmaps) from other types of digital maps including mind maps and topic maps. One point of differentiation, according to Dr. Hoffman, is the importance of "linking phrases" in cmaps.

Most of Dr. Hoffman’s cmap examples utilized “CmapTools”, a free software tool developed and supported by ihmc.  ihmc is a not-for-profit research institute of the Florida University System based in Pensacola and affiliated with several Florida universities.  ihmc describes CmapTools as a “knowledge modeling kit” that “empowers users to construct, navigate, share, and criticize knowledge models represented as concept maps”.

Dr. Hoffman’s presentation highlighted a growing international interest in concept maps. According to Dr. Hoffman, cmaps are now being used in over 150 countries.  Among other countries, Dr. Hoffman cited Panama and Finland where educators are using cmaps as an "infrastructure framework".  The Second International Conference on Concept Mapping (CMC 2006) will take place September 5-8, 2006 in San Jose, Costa Rico. The First International Conference on Concept Mapping (CMC 2004) was held in Pamplona, Spain.

Additional examples of concept maps:

• ihmc's CmapTools documentation
•  Social Software - created by Barbara Bowen for Denham Grey
• Podcasting - created by Barbara Bowen for S2KM Limited