If you are a follower of the Disruptive Lawyer, you are well aware of our philosophy that there is a unique skill set in negotiating and not all lawyers and claims people are great negotiators. That said, there certainly are processes that can enhance results. And process is important to insurance and risk management professionals: a recent CLM survey found that 43% believe process is more important than negotiating skill.
In this regard, here is the Disruptive Lawyer’s Process Checklist that should be implemented by those committed to litigation management and focusing on early resolution. Since we know that 2% of all cases go to trial, 10% of all cases are dismissed by motion and at least 88% of all cases are settled, the issue is when are they settled – after you pay $10,000 to your counsel or $50,000 to your counsel? And so, why Early Resolution strategies are a must.
The Disruptive Lawyer’s Process Checklist
- Case acknowledged and conflicts completed within 4 hours of the assignment
- Insured contacted for introduction within 12 hours of assignment and a meeting set up for introductory and investigative purposes
- Client introductory/investigation call/meeting within 2-10 days of assignment; documents should be identified/requested
- Initial Report/Resolution Strategy to client outlining issues, narrowing the scope of investigation and to-do items within 5-15 days of assignment
- At this time, it might be obvious to put the case in one of the 3 Resolution Buckets: Settle/Motion/Trial
- At this time, it might be a clear liability case so focus should be on damages and valuation
- At this time, it might be obvious the value of the case is way under in Cost of Defense and so valuation is the focus
- At this time, it might be obvious that MSJ is not an option (the cost to trial would be $75,000), so the focus should be on negotiations
- At this time, it might be obvious that there is NO liability and so, recommendation of a stern “dismissal letter” or “we are not the right party letter” may be in order
- At this time, there may be many more questions than answers and the carrier should know what the “targeted” (as opposed to shot gunned) investigation should be
- Resolution Strategy aggressively pursued with a second status report on execution within 30 days of assignment. The report should outline:
- Steps taken in the first 30 days to execute the Resolution Strategy
- Impediments, if any, to properly executing the Resolution Strategy
- Impediments, if any, to early resolution
- Settlement prospects, valuation and strategy
- Recommendations for the most efficient/economical way to address impediments through informal discovery to avoid the “deposition train leaving the station.” Examples:
- GL case: share with plaintiff independent witness statement of no liability
- GL case: share with plaintiff company documents that show floor was inspected 10 minutes before fall
- EPL case: share with plaintiff all write ups on plaintiff; adverse written statements from co-workers; proof that plaintiff’s sales results were horrible
- EPL case: share with plaintiff that in this pregnancy discrimination case the company has had 35 woman take pregnancy leave and return to work with no adverse consequences
- D/O case: share with plaintiff financial data that plaintiff has wrongly calculated commissions so it is not an $800,000 case but a $150,000 case
- Any case: make an offer because plaintiff refuses to make a demand
These strategies save thousands in legal fees as they avoid the exchange of voluminous written discovery and depositions, and in virtually all cases, this informal discovery does not disadvantage the client.
Meanwhile, plaintiff’s lawyers are much more reasonable when they learn on the front end that their case is not as good or as valuable as they thought. Once they “invest” time/money into a case with voluminous discovery and depositions, they hit a point of no return as they can’t easily extract themselves from a “legal money pit.”
- Resolution Strategy updates every 2-4 weeks, depending on case status, including confirmation that counsel is creatively and aggressively trying to resolve the case
- Associates should be involved in all strategic discussions and calls with plaintiff’s counsel on case status and negotiations for training purposes
- GOLDEN RULE: No associate or partner should be directly handling more than 25 cases
- A lawyer will not be as effective, aggressive and/or creative if he/she has to juggle 30+ cases
- The process deadlines outlined above cannot be achieved if a lawyer is juggling 30+ cases
- Lack of attention results in missed deadlines and a 60-90 day Resolution Strategy becomes a 12-18 month full-scale litigation with depositions focusing on issues such as “When was the last time you inspected the floor?” or “What proof do you have that my client was the worst sales person?” or “How do you come to the number that my client’s commissions were only $150,000?”
Utilizing this sort of process, your Key Metrics such as Life of Case, Legal Fees per Case, Indemnity Per Case, Cost of Case, etc. will go down dramatically, particularly when implemented by great negotiators.
We are so committed to both a reliable, proven process and great negotiating, we’ve initiated a Program where – from the claims professional’s perspective – cases run on autopilot. Contact us for more information.