“If you don’t know where you are going, you’ll wind up somewhere else. . .” Yogi Berra
Harking back to my days as a litigation claims manager, manager of in-house staff counsel, and now consultant to insurers on litigation management and legal cost saving issues, I probably have reviewed thousands of legal files in cases throughout the United States ranging from simple slip and fall cases to workers comp to complex CD, IP, and toxic tort cases. One thing I consistently notice in many files I reviewed is the lack of a focused litigation plan or worse yet, no litigation plan at all.
All too often I see a generic transmittal to the defense attorney of the suit, the claim file, and instructions to “file appropriate answer and begin discovery” or “let me know your thoughts on how we should proceed.” Hardly the right signal to initially send the defense attorney that the company wants a specific resolution focused objective with a narrowly focused litigation plan.
It is vital that the adjuster be actively engaged in the litigation planning process. To be sure, I have noted that the more experienced the litigation adjuster is, the more likely it is that probative questions will be asked or meaningful comments or changes proposed to the proposed litigation plan. But, even less experienced adjusters, who have little to offer but questions, can add meaningfully to the process.
Sometimes simply asking the attorney why certain things need to be done or why will certain things take so long to accomplish may serve to help the attorney re-think the proposed steps. For example, if the litigation objective is to “settle by negotiation” and only certain information is needed in order to finish evaluating the loss, it may not be necessary to send out the defense attorney’s complete and elaborately worded form discovery. Remember what defense attorneys (or their paralegals) can easily do by simply pushing a button on their computer may take the plaintiffs weeks (or months) to search for documents or provide appropriate answers.
Of course, there is much more involved in the litigation planning process than can be addressed in this short blog piece. To find out more on the importance of focused litigation planning, I recommend the article “Using Focused Litigation Plans.” It was co-authored by me, Kevin Quinley, and Cindy Khin. The article appears in the Winter 2013 edition of CLM’s Litigation Management magazine.