Time is of the essence, but isn’t it always? Claims professionals have the nearly impossible task of assimilating large volumes of information to make an accurate assessment of a claim. And they have to do it on a daily basis for a pending file list much larger than those handled by most of the defense counsel with which they work.
Of course, every bit of information in litigation is important. You’ll never hear a lawyer say, “Let’s just leave that out.” But at some point a case has to be boiled down into a report or summary from which decisions can be made and strategy can be developed. Murphy’s Law in this situation dictates that, as soon as something is labeled “non-essential,” it will become the key piece of information upon which a claim turns.
Good judgment is always the rule at the end of the day. So what does every status report need so that it is useful for claims professionals?
1. An Overview — Although reports should not be redundant, a little background is helpful. There should be enough of an overview to give the new information some context. This is somewhat dependent on the frequency of reporting and the complexity of the case.
2. Detail — Many times an evaluation will turn on some very specific factual or legal issues. Defense counsel should know when to include minute details and when it is just adding pages to the report. If something is left out, then the report should say what is being left out. For example, in a products claim there could be a regulatory development that has no immediate impact but could potentially affect the claim at a later time. Simply state something like, “The FDA has addressed this issue, but it appears to have no impact on the claim to date.” The report should tell you what it isn’t telling you as much as it provides facts and analyses.
3. Direct Advice/Recommendations — The report needs to have a point. What needs to be done in light of this new information? If nothing, then it should state that the recommendation has not changed from the previous report. If additional questions have come up that need to be addressed with more discovery or depositions, then it should say so. If now is the time to try to resolve the case in light of the new information, then it should state that (and probably be followed by a call from defense counsel).
4. Plan Your Work and Work Your Plan — I have a friend on the national sales team of a major ATV manufacturer. This is his mantra, and it works for him. Every report should state what activity is expected before the next report is sent. Having a clear plan and roadmap helps move the claim along in litigation and keeps everyone on the same page. Both defense counsel and the claims professional should have a working plan to which they agree and to which they stick. Any deviations from the expected activity listed in a previous report should be explained.
5. The Bottom Line Is the Bottom Line — Reports should always have evidence-based liability and damage estimates. Liability estimates are most easily expressed in a percentage chance of a certain verdict (e.g., I expect an 80 percent chance of summary judgment in favor of the defendant. If the claim survives summary judgment, I expect a 60 percent chance of defense verdict at trial). A damage estimate is harder to come up with, but a range is usually appropriate (e.g., any verdict in favor of the plaintiff will most likely be between $350,000 and $400,000). It’s OK to change your estimate but only if it is based on case developments that couldn’t be anticipated. A looming trial date is never a good reason to change a liability or damage estimate.
There is a lot to include when providing an effective and accurate case summary; however, the “kitchen sink” approach to reporting is rarely helpful. No one wants a 20-page summary of a 40-page deposition. Almost every bit of information in a report should inform strategic decisions and case evaluations. If it doesn’t do that, it might be superfluous.
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 email@example.com, www.nwkt.com.