As I look back on two years of columns for Claims Management, one of the biggest benefits to me as a litigator is the opportunity to evaluate my own priorities in serving my clients. Every column I’ve written challenges me to be a better defense lawyer.
The danger for the experienced lawyer is complacency. Having seen everything once lends itself to the temptation to be less exacting in our analyses, less thorough in our preparations, and less service-oriented to clients. Unfortunately, complacency is all too common. Recognizing that this is human nature, we annually come up with New Year’s resolutions to combat this tendency. With that in mind, I present the top 10 New Year’s resolutions for defense counsel.
1 Look for Cases to Try. It is a fact that a vast majority of cases settle without going to trial. In fact, it is easy to fall into the mindset of preparing cases to settle instead of preparing them for trial. The result for the defense lawyer is that courtroom skills become dull. Regularly trying cases sends opposing counsel the message that you are serious in negotiations. It also keeps trial skills sharp. Pick the right cases to try and develop a reputation for going to the mat for your clients. You will benefit as a lawyer and, more importantly, your clients will benefit whether their case settles or actually goes to trial.
2 Out-Prepare Your Opponent. When you do find the right case to try, the side that prepares the most and eliminates mistakes in trial is usually the winner. The “will to win” is a nice saying. We often compliment teams and athletes with this apothegm, but really it’s the willingness to prepare to win that makes the difference. This is true in sports, life, and especially the courtroom.
3 Communicate Thoroughly. With longstanding and institutional clients, it is easy to develop poor patterns of communication. As time goes by, you may think that you know what the adjuster or claims professional wants or thinks on a particular issue. However, you should never assume. Resolve to communicate regularly and in line with your clients’ guidelines. Never wait for someone to ask for a report or update. If you know your client has set the case on the 30-day diary, set your calendar to report in 29 days.
4 Ongoing Dialogue of Expectations with Clients. In addition to the previous points, maintain a dialogue of expectations. If there are litigation guidelines, follow them to the letter. But also take time during the new year to place a call to clients and ask them to how they think you can improve the partnership. Ask how you can help them be more effective in their role managing litigation. Give them an opportunity to give you constructive criticism.
5 Effective Witness Preparation. Thorough deposition preparation is some of the best spent time and money in litigation. It is easy to take a short cut, particularly if you have a deponent who you think will make a naturally good appearance. The only way to eliminate surprise in a deposition is for your client to have heard the questions in preparation, answer them, and review the answers before the real deposition. Mock video depositions are very easy to do and often will get the attention of a witness who thinks they don’t need any preparation.
6 Effective Use of Social Media. This should be a matter of routine in any personal injury case. I continue to be surprised at the number of lawyers who do not warn their clients to privatize their social media accounts. For the defense lawyer, there is too much to be gained from a simple social media search. But it must be done in a way that preserves the evidence for trial. The person securing the social media post or page must be able to authenticate it under the rules of evidence. Before you engage the services of an investigator, be sure the person doing the search is able to testify in court so the evidence can be admitted.
7 Identify the Decision Point and Work Toward It. It is true that effective negotiators prepare their cases for trial and not for settlement. If you are prepared for trial, then you increase the chances of a fair settlement. But also look for the appropriate time to discuss resolution. Each case comes with a key issue or two that must be resolved before mediation and other negotiations can be effective. Identify those issues and don’t discuss resolution until they are addressed in discovery.
8 Concise and Pregnant Reporting. It is much easier to write a lengthy deposition or document production report that includes every conceivable bit of information. However, effective and direct reports that give useable information are more concise. They also take more time and effort to write. The 20-page report of a 100-page deposition transcript is not helpful. Resolve to report concisely on issues that impact case development and value.
9 The Insured Is the Client. In liability insurance cases, remember that your duty of loyalty is to the insured. While the exact duties depend on what jurisdiction you are in, the insured is the client. Resolve to update the insured regularly, even if carrier guidelines do not require it.
10 Professionalism. The practice of law is more than a function of the risk transfer industry. It is a service profession. The way lawyers treat each other and their clients matters beyond the outcome of the litigation. Resolve to take every opportunity to represent yourself and your clients in a manner that is zealous, effective, respectful, and civil.