Veteran claims executives know that sometimes lawsuits go off the rails. Juries can "run away," key witnesses can crater on cross-examination, and judges can, occasionally, be injudicious. However, there are warning signs:

It's quiet, too quiet. Most insurers have reporting intervals stated in their litigation guidelines, but these represent minimum standards, not the ideal. Ignoring reporting deadlines is bad enough, but it's a danger sign when an attorney who has been a more frequent correspondent than the guidelines recommend goes radio silent.

It could be an illness or "nothing much doing." Is it a high-end stakes case? Are there trial or pre-trial deadlines coming up? Those usually aren't good times for the silent treatment; rather, times to over-communicate. Maybe counsel doesn't want to broadcast what's happening, hoping things will turn out fine, but forgetting Murphy's Law. Clients hate surprises, especially ones that begin, "We regret to advise …"

The sudden, unexplained substitution of an expert witness. There must be 100 good reasons why counsel might need to drop an expert witness from the trial list. Even experts get sick, but substituting a new expert for the one who has worked the case up, has been disclosed as a trial witness, and has already billed a substantial amount of money can be a danger sign. The departing expert's work, if used at all, may seem less forceful, and if the new expert relies solely on that work, his or her credibility may be questioned.

The keyword in this danger sign is often "unexplained." Be skeptical if the explanation is so brief that it sounds more like an excuse: "She has a calendar conflict." Really? When did it arise? Why is that case deemed more important than this one? Has the expert already written a report or expressed opinions in our case? Has the expert issued contrary opinions in other cases? If it is an illness, when will the expert again be available?

Unexpected motions seeking reconsideration. Sometimes a law firm's invoice tells more than its reports. If you first learn about a motion for reconsideration on an invoice, that's a danger sign. The outcome of the motion being reconsidered must be important to the case, and unfavorable.

Judges, like the rest of the species, can make mistakes, some of which need to be corrected. When that happens, that is the time to notify the client of the adverse ruling, provide a copy of the order, if there is one, and advise the client that motions for reconsideration have a low-percentage shot. In most jurisdictions, it must be based on a change in the law occurring after the motion was briefed and argued, newly discovered facts that could not have been known earlier, or counsel's excusable neglect, will not support reconsideration.

A string of unfavorable outcomes on pretrial motions by the trial judge. Most judges decide pretrial motions on the merits, and not for settlement leverage. When the trial judge issues a string of unfavorable decisions, seemingly one-sidedly, it's time to reassess. Are we right on the law and facts? Is our method of presentation turning the judge off — too wordy, too many issues in a single motion? This might be a time to consult with someone who has tried many before the judge and can provide a reality check.

Overly-optimistic reports from defense counsel. A very seasoned trial lawyer had a case before a jury and phoned in daily reports to the client and managing partner. They were too good to be true: "They didn't lay a glove on us!" Day after day. At the end of the case, Ka-POW! It was more like an anvil than a glove. In some large-exposure trials, it may be worth the effort to bring in a neutral observer who has seen other trials, acting as the canary in the coal mine by sensing when things start to go wrong.

Unexplained changes in lead counsel. "Unexplained" is again the keyword. Many clients say, "We hire lawyers, not hire law firms." Of course, they expect that lawyer to be supported by the resources of the law firm, but it is him or her they want at the helm of the case. Attorneys are vulnerable to disease, irreconcilable conflicts, or simply running out of gas. When a change in lead counsel must be made, it must be done gracefully, giving the client options of others to take the reins, and an opportunity to speak with each of them.

A ringer is brought in to try the case for the plaintiff. A well-known, high-stakes attorney — a "ringer"— suddenly joins as counsel for the other side. This can sometimes be a ploy, especially if the ringer does not formally associate in the case but lends his or her name to a mediation or settlement conference statement.

You could bring in your own "ringer," though that could telegraph lack of confidence in current counsel. Another downside: some "ringers" thrive on the battle, and may not be attuned to settlement opportunities that arise during trial. Having a ringer consult behind the scenes may provide the advantage of his or her expertise, thus empowering current counsel.

Special Reports /

Seven signs a claim is about to go wrong

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