Building an All-Star Lineup for Litigation

Winter is in the rearview mirror, and spring is around the corner. In addition to saying goodbye to freezing temperatures and driving home in the dark from the office, one of my favorite things about this time of year is coaching Little League baseball. This year, it is my privilege to lead the seven-year-old Blue Jays into battle and, needless to say, there are a lot of moving parts involved in corralling this stellar group of athletes.

In fact, there are many similarities—some good, some unfortunate—to building a lineup for handling a claim through litigation. So let’s take a look at the key players involved in the life of handling a claim from first notice (first pitch) through the end of trial (final out) and even appeal (extra innings).

Claims Professional. This person is a lot like the leadoff hitter. He starts the game off and sets the tone for the rest of the team when the initial response to a claim is made. You will see him again periodically throughout the life of the file. He comes back up to bat at certain times, such as referral of the file to defense counsel, mediation, and, potentially, at trial. If he is slotted to appear as a corporate representative at trial, you may see a pinch-hitter appear in his place. Overall, this person sets the tone for the rest of the game.

Litigation Supervisor. This person is the manager of the team and is the claims professional’s direct superior. He oversees all of the moving parts, sets the lineup, and makes changes as needed. He never makes an appearance in the game itself, but is always involved in the strategy and direction, at least from a training and philosophical level if not actually getting his hands dirty in the file. While he may not be a part of the day-to-day communication of the litigation, when it is time to make a major decision on personnel or strategy (try versus settle), the buck stops with him.

Defense Counsel. Defense counsel is the starting pitcher for the team. He has the most direct influence on the outcome of the game and generally is involved at all stages. Like most baseball teams, while there are several pitchers in the starting rotation, there is one who is your go-to “ace” for the important game. He must have the stamina to go the distance if the team needs him. He needs good pitches in the early innings (discovery) and the ability to be strongest in the late innings (through trial). He needs to keep his opponent off balance through discovery and motion practice in order to set up the best result by the ninth inning (trial) if the case doesn’t settle.

Appellate Counsel. This relief pitcher needs to be ready to go regardless of whether the team is winning (defense verdict) or losing (favorable plaintiff’s verdict), particularly in extra innings. Many times, defense counsel can pitch a complete game and fulfill this role. However, having a specialist in the bullpen who does nothing but appellate work is always a good idea.

Investigator. Like a good middle infielder, an investigator is a necessary piece of the puzzle and is willing to get into the nitty-gritty when called upon. He can make an impact on the game at any point. By getting out and interviewing witnesses early, an investigator can be a cost-effective tool that can help defense counsel at any point in the life of the file. Like a timely double play, he can provide significant value through early witness interviews and surveillance that can turn the tide of the case.

Judge. Just like with umpires behind the plate, you never get to choose who is sitting on the bench. Sometimes they make bad calls that affect the outcome of the game, so it is important to know who is calling the strikes and what that person’s tendencies are. Just as pitchers will adjust their pitches to an umpire’s strike zone, defense counsel must adjust to the tendencies of the judge on the bench. Be careful which calls you argue (interlocutory appeal anyone?) or you may lose the benefit of the doubt down the road.

Just like in any sport, especially baseball, the team must work together like a well-oiled machine to be successful. Communicating about each person’s respective role early and often in the claims process ensures that everyone is on the same page and that the outcome is as predictable as can be.