New Year’s resolutions shouldn’t be limited to our weight, exercise, and elimination of bad habits. For claims professionals and defense counsel, there is no time like the present to evaluate the efficiency and effectiveness of this partnership.
Claims professionals can effectively use defense counsel as a tool that moves a file to resolution and controls indemnity dollars. However, communication about strategy and expectations is indispensable to this partnership. Too often, defense counsel will assume they know what is helpful to the claims professional, and vice-versa. This is a great setup for miscommunication.
Take the opportunity of a new year to have a conversation about likes, dislikes, preferences, and peeves with your defense counsel. Here is a list of the top seven areas or issues to discuss with defense counsel that will help them help you. This is also a good checklist to use when hiring new defense counsel.
If you have never worked with someone, start the partnership off right by setting expectations and opening communication.
Reporting – This is considered by some to be the most important role of defense counsel. Claims professionals need someone to be their eyes and ears. It is essential to have reports of witness interviews, depositions, and document reviews that do not contain fluff yet are thorough and relevant to the legal and factual issues in a claim. Let defense counsel know how soon you expect reports, what documents and pleadings you want copies of, and the depth of reporting and summarizing you expect. Keep in mind that more detail is not always better; it should depend on the size and complexity of the claim.
Evaluation – In addition to knowing your witnesses and documentation, you need to know how they impact liability and damages. This is where the expertise of defense counsel is essential. However, the manner in which an evaluation is expressed is important. It must help form an educated decision about negotiations as well as the decision to settle or try a case. In addition to discussing the likelihood of an adverse verdict and potential verdict range, confer with defense counsel on other factors you need to know about that could impact these assessments.
Accessibility – The speed at which business moves has increased dramatically in recent years. Discuss with defense counsel how accessible you need them to be. With more firms integrating technology into traditional paper practices, it is easy for a lawyer to get information to you promptly. This is particularly true if the firm is able to gain access to electronic files from remote locations, forward direct number calls to cell phones, and correspond electronically on a regular basis. Find out what technology the defense firm has leveraged in its practice. Ask defense counsel for the best way to reach them. Also, be sure to clearly communicate your expectations about returned phone calls and emails.
Essential vs. Non-Essential Tasks – There are always some marginal tasks that defense counsel could perform that may or may not help with the analysis and defense of a claim. Have a discussion about what tasks you need done on every file and what tasks require special approval. This will mean fewer surprises for you and for defense counsel when bills are submitted and reviewed.
File Staffing by Defense Counsel – Question: How many lawyers does it take to screw in a light bulb? Answer: Upon a review of all the possible answers to this question, we will go with “more than it should take to staff your file!” (For a few minutes of entertainment, Google provides some great answers to the question.)
Claims counsel should be careful to ensure that no work is duplicated. There are occasions where more than one lawyer is needed at a hearing, deposition, or (most often) in trial, but there should be an understanding about when this is appropriate. It is usually dictated by the size and complexity of the claim in litigation. However, when files are overstaffed, particularly in larger firms, claims departments may end up paying higher rates for less experienced lawyers to perform non-essential tasks. Clear communication will put some controls on these costs without sacrificing the handling of the file.
Macro Claims Strategy – It is always wise to let defense counsel know your workload and environment. Are you handling a high volume of small claims? Are you handling a small number of large-loss claims? What is your company’s philosophy on trying cases with excessive demands where liability is clear? Knowledge of the number and types of claims you are handling will enable defense counsel to help you do your job better.
Billing and Expense Control – This is perhaps the area that has the potential for the most amount of friction in the partnership. However, it is also the one about which is the least communicated. Be up front with defense counsel on your expectations regarding billing. Go beyond simply providing a copy of the litigation and billing guidelines. Let them know what they can expect from your company. Are you reviewing bills? Or is bill review outsourced to a vendor? What billing issues affect payment for your company? The more you can communicate about this, the less defense firms will worry about these issues, and the more they will focus on the defense of the claim.
Jim Pattillo is a partner with Norman Wood Kendrick & Turner, an Alabama-based law firm. He has been a CLM member since 2010, and can be reached at jpattillo@nwkt.com, www.nwkt.com.