Resolution Expectations in 2021

What do claims professionals want from their assigned counsel? Adjusters rely heavily on counsel to provide important and relevant information, which the adjusters must analyze in order to determine the strategy for any particular claim. It is imperative that adjusters and counsel work collaboratively, and that each side understands the needs of the other in order to do their best work. While astute legal analysis is paramount, the ability of outside counsel to cultivate sincere and meaningful relationships is equally important. In the end, claims professionals want to know that there is an attorney-client collaboration to identify the best course of action in a case, but at the same time they want outside counsel that provides a personal touch with the legal services provided.

Legal Analysis

In the normal course of business, outside counsel are hired by insurance companies to defend their insureds in pre-litigation claims and lawsuits. Often, adjusters may have a significant number of pending cases. While law school may preach writing 50-page briefs and setting forth arguments from courts of multiple jurisdictions, this is not what adjusters seek.

Therefore, counsel’s written analysis should focus on substance over form. The more concise a report, the better. Counsel should provide an executive summary, succinct factual summary, pointed analysis of liability and damages, and a conclusion with respect to realistic exposure or recommendation for settlement value, if the case is ripe for such an analysis.

Responsiveness

Quick responsiveness to an adjuster’s questions is critical, too. During the pandemic, many offices are empty, and employees are working remotely. More and more, adjusters may be reporting to management in different locations across multiple time zones.

Therefore, in today’s legal environment, email is the quickest and best way to communicate. If counsel is unavailable due to a deposition or trial, then the adjuster needs to know this. It is acceptable to email the adjuster and explain a response will be forthcoming, but non-responsiveness is not an option.

Civility and in-person interaction are becoming lost art forms, but this should not be the case when dealing with adjusters. If the request to counsel is on an emergent basis, the adjuster should communicate this to the attorney. Of course, counsel should review the litigation guidelines provided by the adjuster at the outset of the assignment to determine the timeframe for regular reporting and any additional circumstances, such as in advance of mediation or trial. Any questions that arise from reviewing the guidelines should be discussed with the assigning adjuster immediately.

Reporting

Perhaps the biggest issue for claims professionals is the timing and quality of written reports. What may seem like arbitrary deadlines typically are not. The attorney’s failure to report may cause a chain reaction in which the adjuster is then unable to provide necessary information to his superiors, and the team manager does not have the data necessary for conferencing with claims supervisors. On the other hand, timely and thorough reporting ingratiates counsel with the adjuster and allows everyone to look good.

Another reality of reporting is that your adjuster contact may change at a moment’s notice. It is of utmost important to establish a relationship with adjusters early on in the file-handling, and, if possible, obtain the name of their manager. If you, as the attorney, find that your adjuster is being unresponsive to your inquiries and requests, then there is a possibility that the file may have been reassigned. Ensuring some level of communication with adjuster management provides for a seamless transition of file handling.

Additionally, counsel should provide a detailed life-of-case budget for the claim or litigation, unless the adjuster requests otherwise. In the event there are developments that warrant updating the budget during the case—i.e., factual issues are found in discovery that no longer make the case a good candidate for summary judgment and instead will need to proceed to trial—counsel should immediately notify the adjuster and the potential impact on the case. Counsel should understand that the cost of litigation directly affects the adjuster’s reserves and analysis of settlement value. Therefore, the budget is extremely important, and relevant information should be provided as soon as possible and updated when necessary.

During the course of litigation, instances may arise where a non-dispositive/discovery motion or a dispositive motion should be filed. Beforehand, counsel should collaborate with the claims professional to identify the pros and cons of making such a motion. This type of collaboration will make both attorney and claims adjuster feel like a team moving toward a common goal.

Additionally, as dictated by many insurance carriers, filing any sort of motion without the adjuster’s knowledge and consent could mean that at least some, if not all, of the attorney’s time put forth in making the motion could be rejected by the insurance company’s billing department or adjuster.

Communication

It is imperative that counsel communicate hard truths about the cases they are handling. For example, if the case is in a pro-plaintiff or otherwise unfavorable venue with difficult facts, the assigned judge does not grant dispositive motions as a rule, or the case is in a venue where damage verdicts are typically high, the adjuster needs to know well in advance to properly value the case and choose the best course of action.

For the last year, our world has been greatly impacted by the COVID-19 pandemic. In many jurisdictions, there are significant procedural delays, which affect trials, dispositive motions, or even discovery motions. It is important for counsel to discuss with their adjusters whether it makes sense to pursue resolution given the likely delays. Please note that many professional liability insurance policies contain consent-to-settle provisions, which require the insured’s consent to settle. The claim insured should be involved in discussions regarding resolution strategy; counsel and the adjuster should be aware of and sensitive to the desires of the claim insured in this regard.

Now more than ever, it is imperative for counsel to do whatever is necessary to move cases along. Adjusters are likely more understanding that outside counsel’s hands may be tied with respect to these delays. However, it is important to discuss the situation collaboratively because the adjuster may be more willing to pursue dispositive motions that could ultimately fail if the goal is to spur plaintiff’s counsel to take action. Strategies to consider may include filing an offer of judgment, direct negotiations, or mediation. It may be necessary to continuously follow up with plaintiffs’ counsel to resolve a case. Many plaintiffs’ attorneys are highly motivated to settle cases, given the procedural delays due to the pandemic.

Personal Connection

Perhaps what adjusters desire the most from their outside counsel is a connection. Simply put, adjusters want to develop a relationship of trust and confidence.

Law school teaches attorneys to rely on logic, but it does not teach the emotional component of the attorney-client relationship. In law school, attorneys learn to reduce cases down to a fact pattern, then spot the relevant issues. Adjusters are real people whose job it is to accurately assess and resolve hundreds of files. Adjusters desire a team member to help move the cases toward resolution. Sometimes, simply asking adjusters what types of cases they like or dislike, or about their education and background can go a long way in making this connection.

This can also mean that if outside counsel has written an article or comes across a decision of interest, it should be provided to the adjuster. This can serve as a springboard for further discussion and potential connection with the adjuster.

In the end, claims adjusters want skilled attorneys who can analyze an issue, move a case forward, and reach a resolution. If outside counsel can not only do this, but also cultivate a personal relationship with the adjuster, it will reassure the adjuster that any challenges in litigated cases will be met head-on with both parties working collaboratively toward successful resolution.