April 18, 2019

Responding to Opposing Counsel’s Demand, “Henceforth, all communications should be in writing…”

So you’re handling a bodily injury claim and you receive a letter from claimant’s counsel, which decrees, “Henceforth, we request that all communication with this office be in writing.”

Trust

As the adjuster handling the case, how do you respond?

Your reaction may be to resist allowing opposing counsel to dictate the terms of communication. Whoever determined that they unilaterally dictate the ground rules?  What if you have a quick question that might help move the case along? Do you comply or simply ignore this ground rule?

It chafes because the request may be overbearing. It sends the message that, “We don’t trust you.” 

The adjuster could agree. 

Alternatively, the adjuster could counter: 

            “Please explain why you will not be willing to communicate by phone” or …

            “I respectfully decline to play by such unilateral ground rules.  I would http://www.cialisgeneriquefr24.com/cialis-gratis/ prefer the option of communicating both by phone and in writing” or …

            “If you wish to confirm in writing the gist of any phone conversation, I am agreeable to that.  However, I do not agree to forgoing the use of telephone — a standard business tool that fosters discussion, negotiation and timely communication — in lieu of a formalistic `in writing only’ edict.”

It may behoove the adjuster to accept these terms and communicate in writing. There may be a silver lining here. By placing communication in writing, there may be less chance of miscommunication. There is a paper trail to show that the adjuster did communicate with opposing counsel and who said what.

Of course, misunderstandings can still occur in the context of written communication as well as telephone or in person communication. However, the odds are such communication glitches. Many be reduced when communication is reduced to writing.

Adjusters also be wary in thinking that such request signals an attempt of part of opposing counsel to “set up” the adjuster and carrier for a bad faith claim. I have attended seminars and webinars where defense attorneys cite this as one “signpost” that opposing counsel is trying to “set up” the adjuster and insurance company for a bad faith claim.  As such, this request or demand from opposing counsel can and should serve as a flashing yellow warning sign. 

One downside is that reducing all communication in writing takes more time than simply picking up. It also precludes the kind of back-and-forth dialogue or communication which can be useful to develop fact, determine liability or negotiate resolution of claims.

In addition, to the extent that claim negotiations are often a function of relationships built between the negotiators, reducing all communications to  writing thwart the development of genuine relationships. It gives rise to a greater temptation for posturing between the two parties in order to preserve the record for later assessment.

We have likely all heard the saying, “You can’t fight City Hall.”

Likewise, despite the downsides, adjusters may it better off in simply complying and not making an issue of it, if and when opposing counsel insist that all communication take a written form.  Don’t be paranoid, but take it as a sign that you may be being set up for a bad faith claim. Mind your P’s and Q’s.  Sweat the details to insulate yourself from a bad faith allegation.  Preserve the record and document the claim file in case months or years down the road, claim file has to be subpoenaed in connection with a bad faith case.

Paranoia?  Not necessarily. 

As one wit said, “Even the paranoid have enemies.”

Finally, when claimants call about the status of their file or to ask, “Where’s my check?!,” you can calmly inform them that all communications — per his or her attorney — must be in writing.

Q:  What has been YOUR response and reaction when you receive such a request/demand from opposing counsel?  Please post here OR directly to me offline at kevin@kevinquinley.com

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