Proper preparation for the trial of an insurance case begins notwhen an attorney is retained, but when the insurance company hasfirst notice of the loss. An insurance professional shouldsimultaneously investigate the claim and preserve and collectevidence for trial. It is too late to begin trial preparation whenthe case is marked ready by the court. Precious evidence in theform of witnesses, documents, records, and products is notavailable years after the incident. Proper trial preparation shouldbe triggered the moment a company learns of a potential lawsuit,and it continues throughout discovery and trial.

On Your Mark…

Before a summons and complaint are filed, a company receivingnotice of a potential lawsuit should immediately hire aninvestigator to go to the scene of the accident or loss. He must beprepared to take photographs, interview witnesses, and secureevidence (at some insurance companies, investigators always areon-call for on-the-scene investigations). It is almost impossibleto find and interview witnesses three years after an accident whenthe case is marked trial ready.

This time period clearly is the most crucial aspect of the case,but from a trial preparation point of view, it is especiallyimportant because the more diligent the claim professional is, thebetter the case will be prepared for trial. For instance, ifphotographs of the damaged vehicle or the scene of the accident arenot taken immediately, then the car may “disappear” or the roadwaymay be changed by the time of trial. Also, witnesses are moreforthcoming and their memories are more accurate immediately afteran event. A few solid hours of investigation at this stage is wortha 100 hours of trial preparation in the month before a trial.

Once the summons and complaint are received, the insurancecarrier must make an informed choice by selecting appropriateoutside counsel. Each case should be assigned not by randomrotation, but rather by attempting to match the case to the lawyeror law firm. The lawyer's experiences with similar cases as well ashis reputation in a particular venue are important considerations.The potential exposure in the case also is a critical factor thatshould be weighed.

Get Set…

In most states, plaintiffs must file a statement of readiness,which indicates to the court that they are ready to proceed totrial. This document, sometimes called a note of issue, may triggersome important time limits that vary from state to state. Forexample, the time to demand a jury, the time to strike a case fromthe calendar for failure to provide discovery, or the time to movefor summary judgment are all tied to the filing of a note ofissue.

When a statement of trial readiness is served, the insurancecompany should receive a full pre-trial report analysis from trialcounsel. It should contain an evaluation of liability and monetarydamages as well as the counsel's recommendation as to whether thecase should be tried or settled. Defense counsel also must reviewhis file to determine whether all discovery is complete. Pre-trialdepositions must have been held and all transcripts must bereviewed, notarized, exchanged with plaintiff, and summarized tothe insurance company. Each transcript should be re-evaluated withsections highlighted for possible use at trial to cross-examine awitness.

A complete exchange of all medical records, hospital records andnarrative medical reports also must be accomplished. Allappropriate HIPAA authorizations must have been supplied by theplaintiff and expert opinions on liability must have been properlyexchanged.

Original photographs have to be obtained from plaintiff'scounsel. Plaintiff is under an obligation to exchange names andaddresses of witnesses, so the defense counsel should attempt toobtain statements of these witnesses and, if the witness isfavorable, have the witnesses deposed to guard against the eventthat they leave the jurisdiction.

All police reports previously exchanged must be obtained and acriminal check should be run on the plaintiff. Often, this searchreveals information that may be used to cross-examine theplaintiff. If the plaintiff has prior accidents or lawsuits, thephysicians who previously treated the plaintiff should becontacted. They can be subpoenaed at the time of trial and made totestify. Prior defense counsel on previous lawsuits can provide awealth of information on the plaintiff and are usually more thanhappy to cooperate with fellow defense counsel.

Defense counsel also should make a thorough check of his file toascertain whether a complete exchange of the discovery materialshas been made with the plaintiff. Failure to exchange materials mayresult in preclusion, which means the evidence that was notexchanged with plaintiff's counsel cannot be offered at trial. Theresult of this is often disastrous.

All physical reports must be exchanged along with proof that aproper exchange has been made. Similarly, liability experts'information must be exchanged according to different court rules.If the defendant has obtained an expert, great care must be givento ensure that he has reviewed all relevant records. If he has not,this could be used against him during cross-examination attrial.

Any photos, charts, experts, and x-rays also must be exchangedor preclusion will result. Defendants must obtain all insuranceinformation and appropriate disclosure of all policies, includingexcess, must be provided to the plaintiff. Both the primary andexcess carrier must be notified of all relevant trial dates andreports supplied.

Go!

Once the defense file has been combed through as describedabove, the real work of trial preparation can begin. First, a goodtrial lawyer exchanges his business phone number, cell phonenumber, and even his home number to the insurance companyrepresentatives before trial begins. Trial developments do notalways occur on a nine-to-five schedule; contact between the triallawyer and the company is essential to achieving a good result attrial.

Trials have their ups and downs. If a witness gives damagingtestimony, this low point for the plaintiff may be the time toproffer an offer of settlement. These important turns of eventsshould be reported to the company immediately.

A trial-preparation firm must be retained as soon as a trialdate is set. Subpoenas for medical records, police records, andnon-party witnesses must be served. The “prep person” mustascertain well in advance of the actual trial date the availabilityof the insured to determine his present whereabouts and upcomingdates for availability at trial.

Consideration must be given to charts, diagrams, or blowups ofcrucial photographs that must be made for presentation to the jury.As the proverb aptly states, “One picture is worth a 1,000words.”

All experts, including liability and medical experts, must becontacted early to determine any scheduling conflicts or vacationdates. In some cases, experts are deceased and must be replaced assoon as possible before trial. Police testimony is often impressiveto the jury, too, but their complicated lives require that they beadvised of the trial date as soon as possible and their appearancessecured.

It bears noting that often the “prep person” must go throughgreat lengths to actually pick up and bring witnesses to trial. Agood trial lawyer never loses a witness because of his failure toensure his appearance. The resulting missing witness charge willpotentially damage the defense of the matter. There is no excusefor failure to produce the party to the action or a crucialexpert.

The defendant's primary witnesses must be prepared weeks beforetrial and then refreshed immediately prior to trial. Goodpreparation of witnesses is the key to trial success; merelyreviewing depositions is not sufficient. In some cases, amock-trial scenario where witnesses are questioned by a fictionalplaintiff's attorney is extremely useful. Proper witnesspreparation does not occur in the hallway of the courthouse.

Reaching the Finish Line

The claim professional has an obligation to review his file anddetermine whether materials for use at trial (original statements,tax returns, photographs) also are in defense counsel's legal file.Also crucial to trial preparation is a written monetary evaluationby counsel. This is necessary to determine if the case is properlyand formally reserved.

Contact with superiors — whether in the branch office or homeoffice — must be made according to company guidelines. If aroundtable or committee discussion is necessary, the pre-trialphase is the ideal time to calmly and knowledgeably engage in one.First-time conference calls with the home office on the eve oftrial or during trial are not as effective as they should be. Theimminency of trial at times can cloud the judgment needed toresolve a case appropriately. This also is an opportune time for avisit to the company by trial counsel in person in order to discusstrial strategies and tactics. A good law firm should be prepared totravel to a company's headquarters and discuss the trial roadmap.

Other times, attorneys can leave the legal preparation for trialto the last minute. The pre-trial phase is when all legal researchshould be completed and memorandums of law written. If the trialattorney anticipates certain legal issues, such as conflicts oflaws, evidentiary issues, or motions in limine that will come up attrial, the brief should be written and typed before trial. Thisenables the trial attorney to tell the judge during the open-courtdiscussions, “Judge, may I submit this memorandum of law in supportof my motion?”

Similarly, a prospective charge to the jury must be preparedlong before the case goes to trial. Statistics tell us that 90-95percent of trial-court errors are found in the jury charge.Although the charge may be altered, it should be anticipated,researched, and typed long before the trial date. The same appliesto the preparation of the jury verdict sheet, which may be artfullyworded by defense counsel to achieve a favorable verdict.

Avoiding False Starts

Simply because a case is marked for trial does not mean itcannot be settled. The threat of trial is a good instrument tosteer plaintiff to voluntary mediation of a case. Parties can, withor without the assistance of a mediator, sit down and discuss thecase for possible settlement. The most effective mediations seem tooccur when a company's representative is present. The presence ofthe “money man” from the insurance company seems to indicate to theplaintiff that the company is serious about settlement and thatthis may be the best offer he can expect to receive.

Prior to commencement of a trial, the defense should considerputting a “high-low” agreement in place, if the company agrees.This would guarantee the plaintiff a low number if a defenseverdict occurs but puts a cap on a high number if the plaintiff isawarded a runaway verdict. Insurance companies should considerputting one in place at the start of a trial, but even during jurydeliberation is still a time to consider a high-low agreement.

In all, the formulation of trial strategy should begin themoment one learns of the possible existence of a lawsuit and thetrial should always be present in the mind of the claimprofessional and defense counsel. A case should not be handled withthe thought that it will be settled but rather with the thoughtthat it may proceed to a full jury trial. By the time a case ismarked ready for trial, it may be too late to do a thorough andwinning preparation.

Andrea M. Alonso and Kevin G. Faley are partners at the lawfirm of Morris Duffy Alonso & Faley in New York City.