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Q: Disability Insurance ( Answered 5 out of 5 stars,   5 Comments )
Subject: Disability Insurance
Category: Miscellaneous
Asked by: shaggy124-ga
List Price: $75.00
Posted: 27 Oct 2004 12:18 PDT
Expires: 26 Nov 2004 11:18 PST
Question ID: 420862
In order for an attorney to prove that he or she is diabled under a
diability insurance policy the attorney must show that he or she can
not perform all of the material duties of the attorney's occupation. 
What are the material duties? I have found a case that stated that
spending long hours on complex legal issues was a material duty but
nothing else.

Request for Question Clarification by pafalafa-ga on 27 Oct 2004 12:23 PDT
Hello shaggy124-ga,

Is there a particular jurisdiction of interest, or would any case in
the US (where I presume you are based) be of interest...?


Clarification of Question by shaggy124-ga on 27 Oct 2004 15:44 PDT
Any jurisdiction will do as long as they deal with the issue in detail.
Thank you.

Request for Question Clarification by pafalafa-ga on 27 Oct 2004 17:18 PDT

I can't resist kids just finished watching Scooby Doo
2...are you related to **that** Shaggy?

As for your question, you're quite right.  There's very little in the
way of definition for "material duties" (for any profession, lawerly
or otherwise).  There are mentions in some cases of docket items that
were submitted for the record that describe "material duties", but
these types of documents don't make it into the online databases.

For the most parts, the courts seem to take it as a matter of common
knowledge, and -- with rare exceptions -- don't necessarily
distinguish between a variety of phrases such as:

"continuously unable to perform the substantial and material duties of
his regular occupation"

"unable to substantially perform all of the material acts of his
particular job in the usual and contemporary [sic...though I suspect
they meant "customary"] way"

"unable to perform the important duties of his own occupation on a
full-time or part-time basis because of an injury or sickness that
started while insured under [the] policy"

"unable to perform all the material duties of his regular occupation"

"able to perform none of the usual and customary duties of your occupation"

"completely unable to perform each and every duty of your occupation
because of accidental bodily injury or disease"

A major preoccupation of many of the cases is not so much the
definition of "material duties" as it is the distinction between full
disability and partial disability.

Anyway, I'd appreciate hearing your thoughts on this.  I wanted to let
you know I've been looking into the question, and also let you that
I'm dubious about the prospects of turning up a full-fledged defintion
of "material duties" as applied to lawyers, and as used by the courts.

Perhaps there non-court documents, such as job descriptions and the
like. Would those be of interest?

Let me know your thoughts on this.  Also, if you can let me know the
case you've found already, it might help in tracking down similar


Clarification of Question by shaggy124-ga on 28 Oct 2004 14:10 PDT

No relation to that Shaggy. The nickname came because I am bald and
used to follow the greyhounds who were named Shaggy Can I, Shaggy
Flyer, Shaggy etc.

The case was Ellen Lain v. Unum in the 5th district.  I think that a
job description would help if it was for a significant position with a
law firm.  Also, I think the material duties would be applicable to
CPA who is claiming disbility.  Seems strange that the essence of
determining whether you are disabled is based on being able to fullful
the material duties and none of the cases or commentators discuss it.


Request for Question Clarification by pafalafa-ga on 28 Oct 2004 20:36 PDT
Still not finding much (yet!), but I did come across the name of
Lain's lawyer in case you want to get in touch with him:

Paul D Clote
Plaintiff - Appellee         
FAX 713-654-0052
Suite 1600
[COR LD NTC ret]
909 Fannin Street
Two Houston Center
Houston, TX 77010

Request for Question Clarification by pafalafa-ga on 29 Oct 2004 05:48 PDT
By the way, there are plenty of job descriptions out there, quite
variable in terms of their level of detail and the types of duties
included.  It's hard to know which ones would best match your
particular job, but here's an example just for the heck of it:

Position Description:

Directly responsible for oversight of the Special Handling legal
process including enforcing BFS' rights and remedies (litigation,
foreclosures, Bankruptcies etc), documentation, and liaison with
outside counsel . This individual will report to BFS Head of Special
Handling and BFS General Counsel.

In consultation with BFS General Counsel and Office of General Counsel
Litigation Group this individual will:

* Proactively manage the legal process to insure BFS' risks are
mitigated and all rights and remedies are enforced in an expeditious
manner. Work closely with Special Handling Managers to develop a sound
exit strategy.

* Act as liaison between outside counsel and BFS Special Handling
Managers to aggressively monitor the litigation, bankruptcy,
foreclosure, or other legal proceeding being pursued.

* Proactively participate in the decision process. Periodically
evaluate retention process and performance of outside counsel.

* Proactively manage the documentation process and coordinate with the
Special Handling Managers to insure consistency and best practices in
documentation process and procedures.

* Periodically review and update relevant legal forms. 

* Coordinate and conduct training in legal and documentation issues
impacting Special Handling team.

* Establish, maintain and implement long-term strategic vision with
respect to the legal needs and opportunities of/within Special


If you think that sort of thing would be useful, let me know as much
as you can about what sort of description would best meet your needs,
and I'll see if I can provide one (or more) as an answer to your


Clarification of Question by shaggy124-ga on 29 Oct 2004 16:24 PDT
The points you have raised have led me to thinking about a good
location for the material duties.  Years ago I saw articles about what
it took to be a great lawyer.  What they do for clients, how they
socialize and keep in contact, how they stay abreast of current legal
developments etc. Something like that would probably allow me to
comprise the material duties.  Can you take a look? Thanks.

Request for Question Clarification by pafalafa-ga on 29 Oct 2004 16:44 PDT
Sure thing.  It may take a day or so, so stay tuned, and I'll let you
know what I come up with.


Request for Question Clarification by pafalafa-ga on 30 Oct 2004 09:24 PDT

A thought!

The US Department of Labor recently updated and expanded its series of
occupational titles and job descriptions, in a new system known as
O-NET.  It is very detailed and comprehensive.  I wonder if this might
be a better and more authoritative source than a magazine/journal

Here's what O-NET has to say about lawyers:


Details Report for:
23-1011.00 - Lawyers

Represent clients in criminal and civil litigation and other legal
proceedings, draw up legal documents, and manage or advise clients on
legal transactions. May specialize in a single area or may practice
broadly in many areas of law.


Act as agent, trustee, guardian, or executor for businesses or individuals.

Advise clients concerning business transactions, claim liability,
advisability of prosecuting or defending lawsuits, or legal rights and

Analyze the probable outcomes of cases, using knowledge of legal precedents.

Present and summarize cases to judges and juries.

Evaluate findings and develop strategies and arguments in preparation
for presentation of cases.

Examine legal data to determine advisability of defending or prosecuting lawsuit.

Gather evidence to formulate defense or to initiate legal actions, by
such means as interviewing clients and witnesses to ascertain the
facts of a case.

Interpret laws, rulings and regulations for individuals and businesses.

Negotiate settlements of civil disputes.

Prepare and draft legal documents, such as wills, deeds, patent
applications, mortgages, leases, and contracts.

Prepare legal briefs and opinions, and file appeals in state and
federal courts of appeal.

Present evidence to defend clients or prosecute defendants in criminal
or civil litigation.

Probate wills and represent and advise executors and administrators of estates.

Represent clients in court or before government agencies.

Search for and examine public and other legal records to write
opinions or establish ownership.

Select jurors, argue motions, meet with judges and question witnesses
during the course of a trial.

Study Constitution, statutes, decisions, regulations, and ordinances
of quasi-judicial bodies to determine ramifications for cases.

Confer with colleagues with specialties in appropriate areas of legal
issue to establish and verify bases for legal proceedings.

Perform administrative and management functions related to the practice of law.

Supervise legal assistants.

Help develop federal and state programs, draft and interpret laws and
legislation, and establish enforcement procedures.

Work as law school faculty member or administrator.

Work in environmental law, representing public interest groups, waste
disposal companies, or construction firms in their dealings with state
and federal agencies.


Work Activities 
[ranked by "importance", although these rankings obviously change
depending on the particular nature of one's job.  All activities with
an importance ranking of 20 or more are listed below]:

96  Getting Information ? Observing, receiving, and otherwise
obtaining information from all relevant sources.
--interview crime witnesses or victims to obtain descriptive information
--obtain information from witnesses, attorneys, or litigants
--review civil rights laws
--search legal records
88  Updating and Using Relevant Knowledge ? Keeping up-to-date
technically and applying new knowledge to your job.
apply court rules or strategy
--apply legal concepts to medical reports or documents
--follow confidentiality procedures
--follow contract, property, or insurance laws
--follow copyright laws
--follow professional ethics principles in law practice
--follow rules of evidence procedures in legal setting
--follow tax laws or regulations
--use administrative law
--use case logic or precedent
--use conflict resolution techniques
--use interviewing procedures
--use knowledge of environmental laws and regulations
--use knowledge of investigation techniques
--use knowledge of judicial system
--use knowledge of legal procedural rules
--use knowledge of relevant laws
--use library or online Internet research techniques
--use public speaking techniques
--use research methodology procedures in legal cases or issues
83  Interpreting the Meaning of Information for Others ? Translating
or explaining what information means and how it can be used.
--explain government laws or regulations
--interpret laws or legislation
79  Identifying Objects, Actions, and Events ? Identifying information
by categorizing, estimating, recognizing differences or similarities,
and detecting changes in circumstances or events.
--understand legal terminology
79  Evaluating Information to Determine Compliance with Standards ?
Using relevant information and individual judgment to determine
whether events or processes comply with laws, regulations, or
--determine if evidence is sufficient to recommend prosecution
--examine data against legal precedents
--examine evidence to determine if it will support charges
79  Making Decisions and Solving Problems ? Analyzing information and
evaluating results to choose the best solution and solve problems.
decide causes of legal action
79  Communicating with Persons Outside Organization ? Communicating
with people outside the organization, representing the organization to
customers, the public, government, and other external sources. This
information can be exchanged in person, in writing, or by telephone or
--communicate technical information
--confer with prosecuting attorney
--make presentations
--write legal correspondence
75  Communicating with Supervisors, Peers, or Subordinates ? Providing
information to supervisors, co-workers, and subordinates by telephone,
in written form, e-mail, or in person.

75  Provide Consultation and Advice to Others ? Providing guidance and
expert advice to management or other groups on technical, systems-, or
process-related topics.
advise clients or customers
--recommend claim action
75  Selling or Influencing Others ? Convincing others to buy
merchandise/goods or to otherwise change their minds or actions.

71  Documenting/Recording Information ? Entering, transcribing,
recording, storing, or maintaining information in written or
electronic/magnetic form.

67  Analyzing Data or Information ? Identifying the underlying
principles, reasons, or facts of information by breaking down
information or data into separate parts.
analyze data to discover facts in case
--analyze existing evidence or facts
--analyze legal questions
67  Organizing, Planning, and Prioritizing Work ? Developing specific
goals and plans to prioritize, organize, and accomplish your work.

63  Judging the Qualities of Things, Services, or People ? Assessing
the value, importance, or quality of things or people.

58  Resolving Conflicts and Negotiating with Others ? Handling
complaints, settling disputes, and resolving grievances and conflicts,
or otherwise negotiating with others.
conduct legal hearings
--participate in appeals hearings
54  Developing Objectives and Strategies ? Establishing long-range
objectives and specifying the strategies and actions to achieve them.

50  Estimating the Quantifiable Characteristics of Products, Events,
or Information ? Estimating sizes, distances, and quantities; or
determining time, costs, resources, or materials needed to perform a
work activity.

50  Establishing and Maintaining Interpersonal Relationships ?
Developing constructive and cooperative working relationships with
others, and maintaining them over time.

46  Processing Information ? Compiling, coding, categorizing,
calculating, tabulating, auditing, or verifying information or data.
--compile evidence for court actions
--compile information for court cases
--conduct legal research
--identify laws or court decisions relevant to pending cases
46  Assisting and Caring for Others ? Providing personal assistance,
medical attention, emotional support, or other personal care to others
such as coworkers, customers, or patients.

42  Monitor Processes, Materials, or Surroundings ? Monitoring and
reviewing information from materials, events, or the environment, to
detect or assess problems.

42  Training and Teaching Others ? Identifying the educational needs
of others, developing formal educational or training programs or
classes, and teaching or instructing others.
--teach college level courses
38  Performing for or Working Directly with the Public ? Performing
for people or dealing directly with the public. This includes serving
customers in restaurants and stores, and receiving clients or guests.

38  Performing Administrative Activities ? Performing day-to-day
administrative tasks such as maintaining information files and
processing paperwork.
file documents in court
--organize legal information or records
29  Thinking Creatively ? Developing, designing, or creating new
applications, ideas, relationships, systems, or products, including
artistic contributions.
draft laws or legislation
--draw up agreements in accordance with laws
--write legal documents
29  Scheduling Work and Activities ? Scheduling events, programs, and
activities, as well as the work of others.

29  Coordinating the Work and Activities of Others ? Getting members
of a group to work together to accomplish tasks.
--direct collection, preparation, or handling of evidence
--direct serving of legal documents
25  Interacting With Computers ? Using computers and computer systems
(including hardware and software) to program, write software, set up
functions, enter data, or process information.

25  Monitoring and Controlling Resources ? Monitoring and controlling
resources and overseeing the spending of money.

21  Performing General Physical Activities ? Performing physical
activities that require considerable use of your arms and legs and
moving your whole body, such as climbing, lifting, balancing, walking,
stooping, and handling of materials.

21  Developing and Building Teams ? Encouraging and building mutual
trust, respect, and cooperation among team members.


Hard to ask for a better list than this.  

What do you think?


Clarification of Question by shaggy124-ga on 30 Oct 2004 14:04 PDT
If a lawyer had chronic fatique syndrome or a disease that affected
his or her mental capabilities the list doesn't shed enough light on
how he or she couldn't fulfill the duties.  If you feel that you could
devote some time to the "how to be a great lawyer" angle try that. On
the other hand if you feel that you have devoted enough time to the
question we can call it a day. Thanks.
Subject: Re: Disability Insurance
Answered By: pafalafa-ga on 30 Oct 2004 17:09 PDT
Rated:5 out of 5 stars
Hello again, Shaggy.

Thanks for keeping up your end of what has turned out to be a very 
interesting dialogue...this question has morphed from an original one
about "material duties" to one about the qualities and skills that
make for a great lawyer.

I've provided excerpts from several articles that address exactly that
topic.  The answers differ in tone and content -- ranging from a bit
on the touchy-feely side, to those that list concrete steps to take
and skills to master.

Of course, I can only offer brief excerpts from the articles, but
there's enough here to give you the flavor of each and -- should you
so choose -- seek out the full articles for further reading.

I hope this information, along with the earlier information on
material duties, fully answers your question.

But before rating this answer, please let me know if there is anything
else you need.  Just post a Request for Clarification, and I'll be
happy to assist you further.

Best of luck....



What Makes A Great Lawyer

--extensive experience in a certain area of law 
--proven track record 
-- treats the client with respect and as an equal partner.
--clearly explains the law to a client 
--helps the client make an informed decision based on all of the
possible outcomes and alternatives
--regular written correspondence, returning phone calls and letting
the client know of all settlement offers and developments in the case
--honest and ethical
--The lawyer makes decisions in the best interests of his or her
client, not based on what is easiest or most convenient for his or her
--strong reputation in the legal community
--does not take cases that are frivolous


Nine Ways to Be a Lawyer Clients Love

New York Law Journal
August 13, 1991

1. Clients want creative solutions, not just statements of the law.
2. Differentiating the mountains from the molehills. 
3. Return phone calls promptly.
4. Anticipate, do not just react.
5. Take an interest in their business. 
6. Be available whenever clients need you.
7. Treat deadlines as if your livelihood depended on it.
8. Know when to say no. 
9. Learn how to listen. 


Observe: Being A Great Lawyer Is No Accident

New York Law Journal
September 7, 1999

...That is the goal: being not a great associate, but a great lawyer.
No one is going make this leap for you, so it is up to you to take
advantage of every opportunity your firm provides to make yourself
into an advocate, counselor and advisor....

Steal from the Bosses...Put simply, great lawyers learn from other great lawyers.

Ask Questions...Admit that you lack experience and ask simple questions.

Realize the Wheel Exists...The wheel has been invented, do not waste
your time (and your client's money) inventing it again. In all
probability, there is someone within shouting distance who has done
what you are being asked to do. Seek those people out, find the forms
and look for materials

Sweat the Details...You never know when, in the course of doing
something mundane, you will stumble on the significant and important.

Hone Your Skills...find ways to try on what you have learned. 

Be Professional...Everyone from the most senior partner to the
temporary support staff deserves respect and is entitled to work in an
atmosphere that is conducive to getting the job done.

Get Feedback...ask your colleagues how you have done and how you can improve. 

Get Help When Needed...Great lawyers all have great help. 

Have a Life...Great lawyers have interests outside the law. 



The Connecticut Law Tribune
January 26, 1998

Great lawyers are superb technicians, excruciatingly hard workers,
dependable team players and pleasant to be around...

Becoming competent is fairly simple: Take advantage of every
opportunity to learn...

Though you may be assigned to a small part of a larger transaction, do
everything within your power to facilitate the rest of the deal...

Long hours are an integral part of the job. The legal profession is a
service industry...Becoming a truly great lawyer is not a
40-hour-a-week job...

A great lawyer does everything she can to make her client, her
partners and her firm look good...

What Makes a Good Lawyer Great?

...the truly great lawyers are perhaps those who seem to have a
?higher purpose? professionally than personal material success.

...Think of your own personal, professional mission as being the
fusion of two parts, your vision and your personal action plan to make
this vision come to fruition.


Hope that does the trick.  As I said earlier, if you need anything
else, just holler.


search strategy -- searched Google and several legal and news databases for:

"material duties" (lawyers OR attorneys)
("how to be" OR "what makes")  ("great lawyer" OR "lawyer great")
shaggy124-ga rated this answer:5 out of 5 stars
This was a very difficult question that was handled extremely well.

Subject: Re: Disability Insurance
From: pinkfreud-ga on 29 Oct 2004 16:50 PDT
The Dictionary of Occupational Titles, prepared by the US Department
of Labor, is an authoritative source for brief descriptions of job
Subject: Re: Disability Insurance
From: markj-ga on 29 Oct 2004 16:54 PDT
You may also want to take into account the fact that not all types of
lawyers have the same job descriptions.  As just one of many examples,
a trial lawyer's  "material" or "regular" duties are a whole lot
different from those of a deskbound corporate contract lawyer.

Subject: Re: Disability Insurance
From: markj-ga on 30 Oct 2004 15:10 PDT
shaggy124 --

The "material duties" issue is generally a question of factual
interpretation for a jury or judge that would depend not only on the
specialty of the attorney, the specific nature of the alleged
disability and the exact wording of the specific insurance contract. 
A discussion of these issues in detail is typically found in the
transcripts or reported decisions of state or federal trial courts,
not many of which can be found online.

It is possible that a researcher with access to the right subscription
legal databases could come up with lower court decisions or law review
articles that would give you what you apparently need, but I don?t
have access to them.

I have seen a few appellate decisions reversing lower courts and
sending factual issues on disability claims back to the trial court
for consideration by the jury.  Here are excerpts from one example,
which I have quoted at some length to show how appellate courts
typically approach such factual issues:

?Milton Eichacker is a lawyer who started his own law practice
in Las Vegas, Nevada. On February 13, 1996, he purchased
a policy for individual disability insurance from the
Paul Revere Life Insurance Company. .  .  .

?The policy defines ?total disability? to require that, due to
injury or sickness, the claimant is (a) unable to perform the
important duties of his or her occupation, and (b) receiving a
physician?s care.  .  .  .

?On September 14, 1996, Eichacker was an innocent
bystander in a barroom brawl. When he attempted to stop the
fighting, someone hurled a billiard ball at him. It hit him
directly between the eyes, causing serious fractures and lacerations
that required substantial reconstructive surgery. He
received treatment from Dr. Andres Resto, a plastic and
reconstructive surgeon, who operated on Eichacker on September
18, 1996, and continued to see him regularly for over
a year following the surgery. By November 18, 1996, Dr.
Resto stated that Eichacker was sufficiently recovered from
his facial surgery to return to his daily activities. At that point,
Eichacker attempted to return to work, but he encountered
increasing difficulties in accomplishing even the most simple
daily tasks. On September 22, 1997, Dr. Resto referred him
to a psychiatrist, Dr. Robert Peprah. .  .  .

?On September 26, 1997, Dr. Peprah diagnosed Eichacker
with major depression. He found that Eichacker had been
depressed for the preceding nine months and had been ?completely
paralyzed into inaction.? His symptoms included sleep
disturbance, impaired concentration and thinking ability, feelings
of hopelessness, uncontrollable crying episodes, fear of
leaving the house, and low energy. By September 1997, his
emotional state had become so debilitating that he closed his
law office. Over the next several months, his inability to function
resulted in problems with the state bar, bankruptcy, and
the eventual loss of his home .  .  .  .

?Based on these facts, a reasonable juror could conclude
that, although he returned to work less than 90 days after his
accident, he met the policy?s definition of ?unable to work.?
Even if his return to work prevents him from meeting the definition
of ?total disability,?2 the substantial difficulties he
encountered on the job certainly could support a jury finding
that he was ?unable to perform one or more of the important
work duties or unable to perform the important work duties
for more than 80% of the time normally required to perform
them,? which would allow him to meet the first prong of the
definition of ?residual disability?  .  .  .  .

? Here, Eichacker has presented evidence that his disability
was caused by his facial injuries. If this causal link is
established, he would qualify as disabled under the clear
terms of the policy. Allowing the jury to make this determination
is appropriate given the well-established principle of
insurance law that policies are to be interpreted according to
their clear terms, as these terms would be understood by the
insured.  .  .  .

?Here, Eichacker has presented evidence that his disability
was caused by his facial injuries. If this causal link is
established, he would qualify as disabled under the clear
terms of the policy. Allowing the jury to make this determination
is appropriate given the well-established principle of
insurance law that policies are to be interpreted according to
their clear terms, as these terms would be understood by the

Milton Eichacker v. Paul Revere Life and Unum Provident; Case No.
02-17136, U.S. Court of Appeals (9th Cir., January 20, 2004)$file/0217136.pdf?openelement

I could probably come up with a few similar appellate decisions, but
it sounds like they really wouldn?t give you the information you want.
 If I am wrong, let me know, and I?ll give it a try.

Subject: Re: Disability Insurance
From: shaggy124-ga on 31 Oct 2004 13:16 PST
Thank you very much. I think I can put this together now.
Subject: Re: Disability Insurance
From: pafalafa-ga on 31 Oct 2004 13:58 PST
Thanks very much, Shaggy.  All the best with your situation, workwise,
insurancewise and healthwise.


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