Your company is a defendant in a trial that is set to start in two weeks. Settlement talks have fizzled. The plaintiff's demand is ridiculously high. You have evaluated the case up and down, front and back, and sideways. You've thoroughly analyzed liability, damages, and the trial venue. You have huddled with the insurance company claim adjuster, who is willing to take the case to trial.

The lawyer your insurer hired for you seems nice, but in the pit of your stomach you have your doubts and just are not sure. As the company's risk manager, you have given upper management an assessment of the case, its percentage odds of winning and losing, the potential verdict range if lost, and have covered all the angles.

Still, in the dark of night when you can't sleep, tossing, turning, worrying about the upcoming trial you wonder, “Do we have the right lawyer?”

Risk Management Includes Counsel Evaluation

The answer to this question is important. Risk management involves managing trials and the quality of the legal advocacy put forth to advance your corporation's interests. Trials are high-stakes affairs. Make sure you have a high comfort level with the lawyer who is going to court on your behalf. If you lose the case, the financial consequences could be huge, maybe bigger than your insurance policy limit. You don't relish having to go to your boss or the board of directors to explain a big jury hit.

“Success has a 1,000 fathers but failure is an orphan.” If you go down in flames during a trial, 101 Monday-morning quarterbacks will emerge, questioning everything from your trial strategy to whether you really had the best trial lawyer to send into battle. Second guessers abound when the news is bad.

By the time you evaluate a lawyer as being good or bad by watching them in trial, it may be too late. Another evaluation problem is the fact that some lawyers come across as great in a conference room, but morph into wimps at trial. Others might come across as Caspar Milquetoast when dealing with the client, but they turn into pit bulls inside the courtroom. The risk manager cannot always draw reliable conclusions about how a lawyer will project to a jury based on phone calls or in-person meetings.

If you lack confidence in your defense attorney, consider changing attorneys or altering your strate-gy, i.e., consider settling the case. If another lawyer has been assisting or backstopping the first string, you might feel comfortable putting the backup on the field. This takes some tact, diplomacy, and maybe even a great selling job to the adjuster if the insurer is directing defense counsel.

My Lawyer Is Having a Breakdown!

Also, in weighing your need for a first-string lawyer or a capable backup, consider the case's exposure — the probable value. If it's a bet-your-company case, you prefer going with a grizzled veteran. If the dispute is under $20,000 in property damage, give the competent as-sociate a chance. You might make a friend for life, as many young lawyers are frustrated by how hard it is to get trial experience.

Here are other ways to evaluate your defense counsel once the jury is picked and the trial begins:

Keep tabs. Stay in touch with your defense attorney during trial. You can do this without micro-managing. Require that outside counsel phone you nightly during trial to brief you on what happened that day. This also can alert you to changes in the trial and to situations where you may need to bail out, forge ahead, or even withdraw an earlier settlement offer.

Give counsel your home phone and cell number. Make it clear that you expect to hear from him each night. That means making yourself accessible, too. When you talk with your lawyer about the day's trial, be brief, businesslike, and get to the key is-sues. Risk managers usually are not litigators or trial attorneys. Thus, it helps to have a frame of reference for the questions you pose to counsel. Five key questions are:

“In summary form, what happened today?”
“Were there any surprises today?” If so, have him elaborate.
“Were today's developments helpful/detrimental to our case, or did it have a neutral impact?”
“What happens tomorrow? What do you expect?”
“Has anything happened to change your assessment of the case, for good or ill?”

Listen “between the lines” to see how your counsel is bearing up. This may impact whether you want to revisit the idea of settlement.

In a liability trial in Beaumont, Texas, defense counsel lamented to me that he felt a tremendous amount of stress. Great! That's just what I need to hear from my “gladiator” during the contest. In another case in Allentown, Penn., trial counsel (from a well-known insurance defense firm) told me what a pressure-filled situation it was. Very reassuring!

Neither situation inspired my confidence. By contrast, during week five of a six-week trial in Louisville, Ky., a defense attorney told me, “I've run marathons be-fore and I can hold up for as long as this trial goes.” That's what I like to hear! The result? A defense verdict in the face of a $25 million demand.

Trials are a crucible. They give you opportunities to view counsel in a light not available in other settings. Yes, trials are stressful, but the last thing I want to hear from my lawyer during trial is how much stress they're under. Good litigators accept this as part of the package and don't raise client anxiety by emoting about it.

If you're a lawyer, learn to keep it to yourself! If the case is turning sour, yes, share that with the client. But if you're feeling stressed out, keep it to yourself and exercise emotional self-control. Harry Truman's quote is apt here, “If you can't stand the heat, stay out of the kitchen.” Trials are counsel's stint in the “kitchen.”

Can they stand the heat? Trials are stressful for clients, adjusters, and risk managers, too. If a lawyer loses, he still gets paid. (In fact, with the extra time spent in trial, the lawyer gets paid more.) If the case is lost, the risk manager has to pay the tab and pick up the pieces.

What's the moral? If while listening between the lines you determine that your counsel seems to be cracking under the strain, reassess settlement your options! Don't ignore the substantive aspects of counsel's reports, but assess as well counsel's command of the trial setting.

If the lawyer wins the trial or otherwise gets a satisfactory result, congratulate him. Send a letter of accolade or a corporate memento. Send the lawyer more cases and talk up the success. If the lawyer loses or the result is negative, don't be too quick to blame the lawyer. Be aware of shooting the messenger. Just because you received a bad result doesn't mean that your lawyer screwed up. Maybe you had a weak case. Maybe you got “home-towned” by a jury. Maybe the opposing attorney simply connected better with the jurors.

Avoid making snap decisions or rash judgments about counsel's abilities in the heat of the moment. Step back, take a deep breath, and let some time pass before doing a postmortem on the lawyer's performance. If after considered reflection, you still feel the lawyer failed to do an adequate job, decide whether you want to try to “rehab” the lawyer's performance for future cases or whether you want to look elsewhere for future assignments. If you feel an insurer saddled you with a weak lawyer, seek to have more say in counsel selection at the next renewal or insurance placement. Consider stepping up to a higher self-insured retention to exert greater control over the lawyers who will be defending you. At least then, if the decision proves to be bad, you need not point the finger at your insurer; you can simply look in the mirror.

Kevin Quinley CPCU, AIC, ARM, is senior vice president of Medmarc Insurance Group in Chantilly, Va. He can be reached at kquinley@cox.net.

Special Reports /

Pit Bull or Poodle? Evaluating Your Defense Counsel

Related Stories

Recommended For You