If you market yourself as a “settlement planner”, or even consider yourself a “settlement planner”, how do you define “settlement planning?”
During his presentation titled “Expanding Your Planning Network & Advanced Certifications,” featured as part of the recent Society of Settlement Planners (SSP) 2021 virtual Annual Conference, multi-credentialed settlement planner Joseph Tombs highlighted this issue, perhaps unintentionally, when he challenged his audience with the following thought-provoking question:
“if opposing counsel rigorously objected, would there be enough evidence to persuade a judge that you are an expert in the specific field of settlement planning?” (emphasis added)
Tombs prefaced his question with a summary explanation of the Daubert Standard which he characterized as involving a court hearing “when the admissibility of an expert’s testimony is challenged because of the underlying reasoning and methodology used to form their opinion. Basically, is this a real expert testifying about real science?” (emphasis added)
Although “settlement planning is rarely a subject of trial,” Tombs recommended settlement planners frame their engagement as if the plaintiff attorney were hiring an expert when settlement planners market their professional credentials to plaintiff attorneys.
Settlement Planning Credentials
Tombs left no doubt which professional credential best qualified a consultant as a settlement planning expert: the Registered Settlement Planner (RSP). The RSP is earned upon successful completion of an educational program which Tombs helped develop and which SSP promotes on its website.
Tombs, perhaps the most credentialed settlement planner in the industry, also recommended other professional credentials as beneficial for settlement planning including the Certified Financial Planner (CFP), the Chartered Financial Consultant (CFC), the Masters Structured Settlement Consultant (MSSC) and the Certified Trust and Fiduciary Advisor (CTFA).
One relevant credential Tombs admitted he lacked, but aspired to obtain, is the Certified Structured Settlement Consultant (CSSC), a program which has graduated more than 500 structured settlement professionals and which The National Structured Settlement Trade Association (NSSTA) is currently revising and updating. Both the RSP and the CSSC programs feature “Structured Settlements and Periodic Payment Judgments,” co-authored by this writer, among their educational resources.
Beyond his focus on credentials and expertise, however, Tombs’ Daubert-inspired question begs another, perhaps more fundamental question: does an “industry standard” definition for “settlement planning” currently exist? And, if so, where?
Or, alternatively, can anyone who calls herself a settlement planner adopt whatever definition of settlement planning best suits her or his own professional practice and therefore arguably self-define themselves “an expert ?"
Tombs did not offer a definition of “settlement planning” during his SSP presentation – although he has addressed this issue previously in other forums. And regardless of intent, he is doing the industry a favor by highlighting the issue currently.
So, reconstructing Tombs’ question above, where would you, a settlement planner, look to find “an “industry standard” definition satisfactory enough that if opposing counsel rigorously objected, a judge would determine the definition as accurately describing the specific field of settlement planning ?”
What is an Industry Standard?
Traditionally, a “standard” has been defined as guideline documentation (including definitions) that reflects agreements on products, practices, or operations by nationally or internationally recognized industrial, professional, trade associations or governmental bodies. By comparison, “best practices” generally represent “recommendations” rather than agreements. An example of a “standard” definition, for tax purposes, is the definition of “structured settlement” in IRC 5891(c)(1).
Questions: do Wikipedia entries now qualify as “industry standards?” Does the Wikipedia definition of “structured settlement” represent an industry standard?
Labels don’t dictate what qualifies as a standard. For examples, NSSTA’s “Model” Qualified Assignment and Release Agreement and NCOIL’s “Model” State Structured Settlement Protection Act arguably represent industry “standards.”
What about the SSP Settlement Planning Practice Standards, available for download from the SSP website. Do they represent a set of “industry standards”, or rather a recommended set of “best practices?”
Settlement Planning Definition
Currently there is no entry for personal injury “settlement planning” on Wikipedia. Although many NSSTA members refer to themselves as “settlement planners,” the NSSTA website does not mention “settlement planning.” The SSP Settlement Planning Practice Standards do not provide any definition of “settlement planning.”
Although the SSP website describes “settlement planning” and the RSP website defines “settlement planning”, the explanations are not only brief, but also inconsistent and arguably incomplete if not inaccurate.
The SSP website states: “Settlement planning focuses on helping injury victims meet their needs and goals after they receive a legal settlement. SSP members work with the injured party to create a comprehensive and integrated settlement plan.” (emphasis added) This description effectively eliminates not only pre-settlement planning but also structured settlement annuities and qualified settlement funds.
The RSP website “Education Page” defines “settlement planning” as “financial planning for a recipient of a legal settlement.” Strictly construed, this definition eliminates medically-based life care planning.
To better understand the industry challenge in developing a “standard” definition, consider Independent Life’s own description of “settlement planning.” Not only is settlement planning complex, it can also describe different applications: 1) the settlement planning profession; 2) the settlement planning process; 3) the settlement planning vs. the claim management structured settlement business model; and 4) the settlement planning market.
Joseph Tombs’ original question in which he refers to “the specific field of settlement planning” presumably refers to the settlement planning profession. However, his question could also encompass any of these three other applications.
In an article titled “Provoked by Zeno’s Paradoxes”, which appeared in the April 3, 2021 edition of the Wall Street Journal, Frank Wilczek wrote: “Paradoxes arise when different ways of thinking about a situation lead to contradictory conclusions. Since nature cannot contain contradictions, physical paradoxes point to flaws in our thinking. They invite us to do better.”
It is difficult, if not impossible, to be an expert in a “specific field” that lacks an agreed upon definition. Among other accomplishments, Joseph Tombs SSP presentation highlighted the priority for the “emerging” settlement planning profession to develop a better definition of “settlement planning.”