When your insurance client has assigned a case to you, they have an expectation that you are going to undertake certain courses of action with or without specific instructions. They are relying on you to handle the case in an efficient and effective manner. I have derived this list from talking points at a panel counsel session with one of my firm‘s insurance clients.
What are nine things you should do after being assigned a case?
1. Establish prompt contact with the insured(s).
You are the insured’s conduit to the legal system. Once you’ve been assigned a case, the insured becomes your client. The insured may not be the one footing the bill, but you owe the insured (not the insurance client) a zealous defense, irrespective of the interests of the insurance carrier.
Establishing immediate contact with the insured should be your highest priority. They’ve been sued. They likely have questions and fears that only you can answer. Most haven’t been involved in a lawsuit before. The insured needs information and assurances. Be a resource for them. Communicate to them this is their case.
2. Make a prompt determination of liability.
Sometimes, immediately after being assigned a case, you can take one look and make a definitive and unwavering assessment of liability. In other instances, it’s going to take months of discovery before you can make such a determination. And in still other cases, you aren’t going to know whether liability lies with the insured until the jury comes back with its verdict.
Regardless, you need to be communicating these things to the insurance carrier. They are attempting to evaluate their risk and set reserves. The more information you can provide about liability, the more informed their decision-making can be.
3. Answer and immediately issue discovery.
Rarely is there a solid excuse for delaying issuing written discovery requests to your opponent. I make it a part of my work flow – file an Answer … [moments later] file written discovery. If you’re in a practice like personal or commercial auto litigation in which most of the information types you’re seeking from one case to are substantially similar, there’s (typically) not a great deal of personalization in written discovery. Establish your default set of base questions, add case specific questions as necessary, and get that discovery out. The sooner it goes out, the sooner it comes back in. And if you don’t get timely responses and/or communication from opposing counsel, … well, see below.
4. Engage in aggressive motion practice.
When I’ve issued written discovery that has gone unanswered, I’ll typically send a letter or two requesting that my opponent produce their responses within a specified timeframe. I put a reminder on my calendar. But after that, I’m filing a motion to compel. My client’s best interests aren’t served by me sitting around doing nothing, not moving their case forward. It’s not personal, and I’m not mad about it. I just want my clients to know their case is my priority, and I’m going to effectively represent them by getting all the information in to evaluate our situation.
Aggressive motion practice also applies to motions to dismiss, motions to compel, motions for sanctions (whether Rule 37 or 11), motions for summary judgment, etc. As much as I aspire to be a lawyer that gets along with other lawyers and be generally agreeable, I can’t allow my cordial relationships with other attorneys get in the way of prosecuting a case.
5. Evaluate potential damages.
You likely know the venues in your state better than your insurance client. I’ve written in another post recently that verdicts (and thus damages evaluations) can vary wildly from county to county in Alabama. You need to know what claims, and items and amounts of damages the plaintiff is alleging in your case before your can evaluate potential damages. And you can’t know what the potential damages are if you haven’t gotten the discovery out and back in (and been aggressive in your motion practice, if necessary, to effectuate getting ahold of that information).
6. Conduct an early analysis for resolution strategies, including creative options for favorable resolution.
According to The Law Dictionary, on a national level, “about 95 percent of pending lawsuits end in a pre-trial settlement.” The Alabama Unified Judicial System has released a report, which reflected that in fiscal year 2015, more than 99% of civil cases in Alabama resolved without a jury trial. Some can be settled early in the process, shortly after determining liability and evaluating potential damages. While in the short-term, in may not positively affect your billable hours, your duty to your client is to engage in settlement discussions as quickly as is plausible.
In order to be able to negotiate settlement, you need a strategy. Typically, in insurance defense cases, the authority to settle is going to come from the insurer, rather than the insured. Once you’ve provided the necessary information, you and the insurance client strategize as the best approach to resolving the matter. On your end, your knowledge of the venue, presiding judge, and opposing counsel will contribute heavily to your assessment.
Are there non-monetary offers you can make that can aid in resolving the case? Sometimes in addition to money, a plaintiff wants an apology from the tortfeasor. On the other hand, I have come across plaintiffs for whom settlement wasn’t an option because they wanted their day in court.
7. Present balanced view of the case’s strengths and weaknesses, with predictions of how the issues will be decided.
Your insurance client’s evaluation of the case and setting of reserves will be determined largely by your presentation of the facts and the law. Make sure to present an unbiased view. If there are bad facts that affect your defense of the case, your client needs to be made aware early on. Sugarcoating your analysis may result in false expectations that lead to doubt and mistrust. And these things lend themselves to an insurance carrier finding counsel in whom it has more faith.
In addition to an early assessment of the issues being beneficial to your client, it is intrinsically helpful for you in putting together a litigation plan.
8. Produce a proposed budget and explain the strategic value of proposed tactics.
As a part of measuring its risks, your insurance client needs to have a reasonable expectation of the costs of defense. Producing an accurate budget aids your client in making sound business decisions. Furthermore, a proposed budget lets the insurance carrier know whether you billing is in line with other panel counsel.
9. Explain procedural issues and strategies to aid the adjuster in making strategic decisions.
Your adjuster or claims representative needs to know the reasoning behind your proposed actions. In roundtable meetings, the adjuster is going to have to answer for the actions you have taken in prosecuting the case. If you intend to move to transfer venue, move to dismiss the case, move for summary judgment, be sure to keep your claims representative in the loop. They should be involved in the decision making, so long as it doesn’t interfere with what is in the insured’s bests interests. Inform your adjuster of the risk v. reward, likelihood of success, and costs you expect to incur.
If I’m considering writing a motion for summary judgment, I know that I’m likely going to spend about 15-20 hours, between brief writing and attending a hearing (Note: This estimate of hours spent on a dispositive motion is probably on the light side for all but your average slip-and-fall or car wreck cases). If there is only a small likelihood of success, my client may think the motion is not worth the cost. They may find it more beneficial to seek to have some of the issues dismissed at trial. Or to the contrary, despite a low likelihood of success, the client may find it advantageous to have a pending summary judgment motion hanging over the heads of the parties while informally negotiating settlement or mediating the case. Regardless, it’s a strategic decision that should be made together.
In short, your relationship with the insurance client should be collaborative and symbiotic. Your interests are aligned. And the more you work together, the more efficiently and efficaciously you can represent you client after being assigned a case.
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Photo by benuski.