Henry is a partner in Obermayer’s Litigation Department and a member of the Catastrophic Loss Group. He focuses his practice on commercial litigation, product liability, catastrophic loss and liability, and professional liability....Read More by Author
5 Factors Insurance Companies Must Consider when Assigning Counsel to Defend High Exposure Civil Actions
Civil litigation is a multi-billion-dollar industry. The plaintiff bar invests millions of dollars annually and works collaboratively (much more so than the defense bar) among its practitioners to cultivate claims and maximize settlements and jury verdicts. In this article, I detail five critical aspects of litigation management that must be considered when faced with the onerous burden of defending a civil matter.
1. How Specialized is Your Team?
The civil litigation plaintiff bar recognizes that developing an expertise in an area of practice can be profitable. The most successful among them seek to specialize in litigating specific types of cases in certain venues. Considering this reality, when the decision of what lawyer and firm is best suited to defend a potentially high-exposure matter in a difficult venue, experience and proficiency must be considered. By virtue of their greater resources, panel firms are much more likely than insurance companies’ captive attorneys (who tend to be more generalized in practice), to have assembled a group of attorneys who have developed an expertise defending and defeating the unique claims being asserted.
2. Can Your Team Deliver on Demand?
When a corporation or individual defendant receives that initial disconcerting notice of litigation that prompts the duty to defend, the first consideration should be: who can do the best job in this matter? This is especially true when the stakes are elevated and the facts, law, and venue are not favorable. Perhaps an immediate response is needed. This is often the case in complex litigation as the plaintiff bar, whenever possible, will initiate a case to put the defense at an early disadvantage. Litigation of multi-million claims is high-level strategic competition, regardless of the urgency of the moment, that initial move must be well-thought-out and in alignment with the larger strategy. Panel firms are better equipped with seasoned litigators and experienced support staff to respond with the requisite immediacy and accuracy initially and throughout the litigation in order to yield the desired end.
Given the significance of this component, it is useful to further elaborate on its essential factors. They are:
- the ability to thoroughly preview the matter;
- the ability to perform in all aspects during litigation;
- and the ability to execute with precision at those distinct moments that will shape the outcome of the case.
Let’s examine each element.
In order to best understand the importance of previewing litigation, consider this analogy: Suppose a first time mom goes into premature labor and is rushed to the hospital to discover that she will not be able to give birth naturally, as planned, but instead, she must undergo an emergency Cesarean delivery. As you would expect, this moment would be full of anxiety and tension. However, it is not difficult to foresee that expectant mother being reassured by an experienced Obstetrician who can outline the process before any moves are made. Similarly, an experienced attorney with a specialty in the type of case that was just filed, adds immeasurable value by foreshadowing the lawsuit based on an acquired knowledge of the case law, the venue and opposing counsel. Panel firms are much more likely to have that experienced specialist to provide the essential litigation overview. The alternative for that mother perhaps would be to go to a family doctor who can deliver the baby in between setting a fracture and conducting a physical. One size does not fit all in either scenario.
3. Have Institutional Knowledge and Relationships with Key Corporate Representative Been Cultivated?
Performance, in the context of prevailing in major civil litigation encompasses both a macro and micro level of execution. From a big-picture perspective, the essential issues include constructing and preserving litigation themes. This is especially critical in circumstances where a client may face a similar lawsuit in the future. A large part of my practice has been defending product manufacturers against claims of defects in the design or manufacture of their machinery or equipment. My success with these cases has included understanding my client’s products and processes and forging effective relationships with the key corporate representatives to secure the information necessary to place the client in the best posture for not only the instant matter but also for future anticipated disputes given the trends with this type of litigation. Relationship development takes time. Panel firms have a lower volume of matters than house counsel and are thus able to invest the time needed to accomplish this critical aspect of litigation.
4. Will All Discovery Demands be Controlled in Order to Facilitate the Ultimate Objective?
On a micro level, performance requires an ability to maintain discipline and focus. The macro-level themes must be carefully woven into each detail during the day-to-day litigation activities. Nowhere is this more apparent than in the area of written discovery. Depending on the venue, a civil defendant can face a seemingly unlimited number of written interrogatories to answer. It is not uncommon for the same question to be asked in a variety of ways to secure an inconsistent response that the plaintiff attorney can later use to trap a defendant or to impugn the credibility of its representative. Accordingly, it is imperative that attention is paid to the details of litigation. Frequently, house counsel has to employ an assembly line approach to the details of litigation in order to satisfy the numerous deadlines generated in their high-volume practice. Panel counsel firms maintain a staffing advantage and are, as such, better able to execute at this level to better position their clients to prevail.
Also, precision as a part of performance is more art than science. It is demonstrated by the adroit trial objection; the written advocacy that does not merely regurgitate case law but rather makes a salient and persuasive argument that reflects expertise. All business is people business; in this vein, precision includes the skillful leveraging of relationships with opposing counsel, court personnel, and potential mediators. Panel counsel firms attract successful lawyers with great experience interacting with each group. The client, and by extension the carrier, are the recipients of the benefit of that experience.
5. Where Will You Get the Most Value?
Price is a factor in all business decisions. However, the indispensable foundation of price is value. Would our expectant mother be better served by submitting her need to the cheaper doctor, or the better doctor? Moreover, as a practical matter, most insurance companies establish pricing guidelines that panel firms abide by. So, the argument that use of house counsel is a money saver is a bit of a red herring.
Finally, corporate and individual civil defendants desire the best representation in contentious matters. In the end, panel firms offer litigation advantages with respect to proficiency, production, previewing, performance, precision, and even price.
Henry is a partner in Obermayer’s Litigation Department. He focuses his practice on commercial litigation, product liability, catastrophic loss and liability, and professional liability. He represents commercial and industrial entities including product manufacturers, private services providers, financial service providers, healthcare delivery systems, individuals and private clients, as well as real estate owners, managers, developers, and investors.
* The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.