By Burl Daniel, CPCU, CIC, CRM

Insurance attorneys are busy people! No two litigation cases are the same! No secrets here. As insurance litigation consultants, we find this particularly true of both the defense and plaintiff trial lawyers who retain us. Attorneys face weekly court filings, deposition schedules, and/or courthouse deadlines. Below are a few ideas which might help attorneys involved in insurance litigation obtain better value from the fees paid for their witnesses’ expertise and services.

It is not unusual to receive calls from attorneys needing expert report/opinion letters within 3 to 7 days. I personally have been asked to review 500 to 600 pages of documents; do peripheral research; join conference calls with the attorney, the client, and other parties involved; and produce my expert report post haste. While we can and do provide such short-fuse reports, we simply cannot do our best work trying to complete what may be a 40-hour project in 12 to 15 hours.

Reasonable lead time allows us to ask better questions, better analyze the data, seek additional information, and provide the attorneys with our best report possible … not so different from when attorneys prepare a case for mediation or trial. Attorneys know how proper preparation improves their overall case presentation to the mediator, arbitrator, jury, or judge. We understand that attorneys live and die by turnaround time. We are simply suggesting that with moderate lead time, we can reduce cost and improve your odds at the courthouse.

We usually can provide you the best value as your "consulting expert" well before depositions begin. We are not attorneys providing legal advice. We do not practice law. We do not represent clients as their legal counsel. However, we can provide a depth of technical knowledge in each consultant’s particular area of insurance expertise. We can assist attorneys with technical insurance-deposition questions. We may also be able to suggest coverage or claim areas to avoid or downplay, depending on the insurance issues in question. We can serve as a sounding board for industry-practices issues and insurance-agency practices issues, and we very likely have experience with cases similar to the case at hand.

I have read several depositions in which the questions being asked explored insurance coverage having little or no bearing on the case at hand. In nearly all these cases, a 15-30 minute discussion with an expert before these depositions were taken could have helped the attorneys focus their effort. When you have the luxury of any time and can give us an advance snapshot of case facts, basic case documents, and even a short bit of review time, we can usually help you focus deposition questions … focused on the most likely applicable coverage parts and focused to avoid areas not likely to help your client’s case.

We filter through technical insurance issues, thus freeing attorneys to focus on the legal aspects and the strategy of the case. As consulting experts we can help focus an attorney’s deposition preparation in many areas. For example:

Plaintiff attorneys often front litigation costs and may be repaid only if their clients prevail. Defense attorneys normally bill hourly fees, court costs, and other legal costs (including expert fees) to the insurance carrier or insured. In either case, but perhaps more importantly, for the attorney working on a contingency fee, it is important to properly assess the likelihood of prevailing before significant cost commitments are made.

Perhaps the worst scenario occurs when one side had either a very difficult case or virtually no chance to prevail from the outset of litigation, or when it thought it was bulletproof. By the time the party discovers that it is not indeed bulletproof a lot of time and money have gone down the drain. While we could never predict with certainty any final decision a mediator, arbitrator, jury, or judge might make, it is likely that our experience could greatly reduce the uncertainty of the situation. One of our consultants has likely seen a case (or cases) similar to the one at hand. A short telephone call early in the game can suggest when/where:

We appreciate being considered and/or retained to join a litigation support team. The simple ideas above should streamline the process and provide the attorneys involved with better value for the fees they pay.