If you have been following these posts, and the comments from insurance industry folks who have stopped in, you should have picked up a theme that was clear and unmistakable. Clients want and need their lawyers to understand their business.
Want to impress a client or a potential client? Know what makes them tick. Do not guess at it. Learn it and know it.
When a new personal injury defense file comes into the office, and it’s assigned to you for handling, what do you do with it? If it is a lawsuit on behalf of one of your carrier’s insureds, do you simply take up the defense? Review the investigation? Look at the pleadings? Think of affirmative defenses you might raise? Prepare an answer and the “usual” discovery demands?
You’re an associate in the insurance coverage team. You are asked to review a pleading in a declaratory judgment action where a party is claiming additional insured status. You have been following the case and you know of recent case law that might allow you to take a strong position that the coverage is not available. In fact, you recognize that this case has the perfect set of facts to test the policy language and get a favorable decision in this case. What do you do? Do you answer, raise the defenses and recommend a quick motion for summary judgment or a motion on the pleadings?
If you answered “yes” to these questions based on the information I gave you in the scenarios, and you filed and answer in the first example and answered or filed a motion in the second, you would have satisfied your hourly billing requirements, started the litigation process in motion and successfully moved the paperwork off your desk.
In each case you would have punched the clock.
If you wanted to be a clock-puncher, you should have worked in a factory.
Don’t be a clock-puncher. I have a different suggestion for you.
Learn your client’s business. What is important to them?
An insurer has asked you for a second opinion on a matter. You know they received an unfavorable opinion from another law firm. You’ve been asked for the likelihood of success. You know it’s a tough case ahead but you want to be positive—and you want to impress them—so you tell them that you have an angle that gives them an excellent chance of success. They rely upon your opinion and reserve with that in mind (do you know what it means for a company to set “reserves?”). Shortly before the dispositive motion or trial, two years later, you tell them that the case provides some significant challenges (and the darn case law hasn’t changed in the past two years) and you’ll need more money than they’ve given—substantially more money—to resolve the matter. In fact, your opinion now mirrors the recommendations of the first attorney.
What do insurance companies and corporate defendants find the most distressing about litigation? Do you know? Have you asked? Ask.
What you may learn, if you take the time to sit down with your clients (who may well become your best clients) is that one of the most frustrating aspects of dealing with outside counsel is that they litigate files to death without ever paying attention to what the company really needs. What do they need? The truth. They need practical, realistic, counsel. They need attorneys who understand their business. Their business is rarely to litigate cases to death.
Generally clients want to close files efficiently and effectively and, if humanly possible, quickly. An open file bleeds money. An open file, litigated without purpose, is wasteful. Sure, it brings money into the firm but when it does so, it may so annoy the client that it can curtail (and will over time) the assignment of new business.
Can that first file be resolved before you even file an answer? Are there really questions of fact or is it pretty clear that your client is completely at fault (or not at fault at all). Is there a lawyer on the other side who understands the costs of litigation as you do and as does your principal? Can you imagine how happy your client may become if you are able to close that file in 10 days or 30 or 60 rather than six months or a year or three? What harm is there if you call your client and explore that question BEFORE you file an answer and discovery demands and start the long slog ahead of litigation.
On that additional insured question, have you asked the client how often they take the other side of that issue? Most insurers that are pressing additional insured tenders, for example, are being asked by other carriers and potential insureds to pick up tenders in almost identical situations. Does your client really want precedent on this question? Are you sure that the line adjuster handling the file understands the corporate implications if you are indeed successful? Be careful or he or she might get what they want, a win in this case, which kills them in 50 other pending cases where the insurer is arguing exactly the opposite position. Isn’t it worth having that discussion and asking? Are you SURE you want to win this point or, perhaps, should we try to compromise this $50,000 case that might impact on millions of dollars resting on other cases?
How do you learn what’s important to your client? Ask. Start out by asking the the partner who assigned the file. She or he will be impressed that you were asking, by the way, if that lawyer is worth his or her salt. Ask to be brought in on the conversation (or handle the conversation) with the client. You know what? The client will be impressed that you are asking, that you are thinking about their business and what is important to them. Then, when you have had that chat, send an email to the client confirming your discussion. That will go in the file notes and even if the line adjuster didn’t seem to care, there will be a supervisor, or claim manager, who will take note of it. “Hey, this young lawyer was concerned enough about our business to ask …”
It will set you apart from the others. It’s a good thing.