February 21, 2019

The Importance of a Focused Litigation Plan

[NOTE: “The Claims Coach” welcomes a guest post by friend and CLM Advisor colleague John Conlon. John Conlon is an attorney and former insurance claims officer. He presently consults with insurers on litigation management and fee billing issues and blogs about those issues @ http://legalbillreviewerblog.com/. He can be reached at jconlon@conlonassociates.com or at 317-258-0671. From the time I was a child, I heard the adage, “He who fails to plan, plans to fail.” In this post, John Conlon explains why the maxim is especially true in the realm of litigation management.]
Harking back to my days as a litigation claims manager, manager of in-house staff counsel, and now consultant to insurers on litigation management issues, I probably have reviewed thousands of legal files in cases throughout the United States on a variety of issues. One thing I consistently notice in many files I reviewed is the lack of a focused litigation plan.

Collaborating on the Litigation Plan

One of the first things I note lacking in a focused litigation plan is that the adjuster is not sufficiently engaged in the planning process. This lack of engagement usually contributes to a lack of follow through on the plan. While it is okay for the defense attorney to take the lead in coming up with a proposed litigation plan, the adjuster should maintain active engagement in the planning process. Too often, I have seen “okay” or “proceed” as the only adjuster comments to an attorney’s proposed litigation plan.

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 planning 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.

Changing the Litigation Plan

A focused litigation plan must always be viewed as a living document that will need to be updated as circumstances warrant. As developments do occur in a case, they must be viewed strategically through the prism of the litigation plan. How does a particular new development affect the litigation plan from a strategic standpoint? Do major revisions in the litigation plan need to be made? If no changes need to be made in the plan, do the target dates need to be revised?

If a development is not of strategic importance, why waste time (and the company’s money) on changing the plan or reacting to it in some way? Remember it is not always necessary that the defense attorney research every issue the plaintiff attorney raises or vigorously oppose every motion filed.

Conclusion

It is possible to achieve a good result on a litigated file in an efficient and cost effective manner without a focused litigation plan just as it is possible to walk outside and find a $10 bill on the sidewalk. However, the chances of either happening – at least on a consistent basis – are rare.

Achieving a good result in a litigated file can only be accomplished on a consistent basis through developing a focused litigation plan and careful follow through, monitoring, and where necessary, revision of that plan.

Litigation Management: Are Defense Litigation Budgets Billable??

A huge part (maybe too much, but that’s the subject of another post) of litigation management is cost control. One key tool in controlling costs is requiring that outside counsel submit periodic budgets. Some of these budgets may be quite detailed and involved.

Further, budgeting is not a one-time discipline. Ideally, budgeting is a recurring discipline on defense counsel’s part. The adjuster or client should have an initial budget within, say, 90 days of the assignment to counsel, at least. Further, budgets have a limited shelf-life, too. Like potato chips, just one won’t do.

Circumstances change which can render a budget out-dated. Responsive and astute counsel should be attuned to this, reporting not only on the changed circumstances, but the implications that those changes have on (a) case value and (b) cost of defense. Sometimes Budget A is predicated on the Judge ruling one way and Budget B is predicated on the Judge ruling another way. Having both scenarios budgeted for helps the insurer or client make both tactical and strategic decisions regarding defense versus resolution. Further, budgets help insurer and clients fine-tune Expense reserves.

In short, defense counsel may have considerable time wrapped up in preparing budgets. A good budget, done right, requires thought … and time! Attorneys may fully intend to bill for such time.

A potential friction point, though, comes when counsel includes in the bill time charged for budget preparation. Some insurers and clients balk at this line item in a bill, thinking that this is something counsel just ought to do anyway and not bill for. Some may refuse the pay any charges related to bill preparation.

Defense counsel bristles, feeling that this is a justified billable task. The insurer or client feels that the lawyer is over-reaching. It can become a distracting frictional issue, even if the amounts in contention are not huge.

Tip for insurers and clients: If you do not intend to pay for budget prep-time, so note this in advance with your client guidelines.

Suggestion: A fair approach and reasonable middle ground, in my view, is to include in litigation guidelines verbiage to the effect that, “We will pay for reasonable time spent preparing a budget. Generally, though, we do not expect counsel to spend more than one (1.0) hour on this task. If you feel more time will be needed, please discuss with us beforehand.”

Tip for counsel: If the client has given you guidelines, read through them carefully! Don’t assume that all guidelines are created equal. If there is anything that is problematic from your standpoint – such as no billing for budget prep – discuss that up front before accepting the assignment or agreeing to be placed on an approved panel. Either negotiate, in a friendly way of course, some leeway here, agree to absorb this time or respectfully decline the assignment.

Litigation is enough of a battle without distracting side-skirmishes with counsel over billing for budgets. Budgets are meant to curb costs, not hike them! Deal with the issue up-front so it is out of the way at the outset of the assignment and avoid it festering during the life of the case.

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