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Resolution Strategies
John Bohyer, J.D.Linette Ranieri
© CLM Litigation Management Institute 2013. All rights reserved. The course material presented herein does not represent the views or opinions of any of the individual faculty members or instructors or of any of the companies or entities with which they may be employed or affiliated. Nothing in the course materials presented should be construed as legal or professional advice or the rendering of a legal or professional opinion on any specific factual situation. Always seek appropriate legal and professional business advice in the context of specific cases.
Resolution Strategies
True or False?
94 to 96 percent of all cases settle before trial.
Resolution Strategies
True1. Files settle before trial; however, the
speed to resolution takes too long…
2. So, how do you develop strategies to address resolution speed?
Resolution Strategies
A recent Claims and Litigation Management Alliance study revealed…
“less than 40% of the law firms ‘get it’!”
Such is a predominant example of an unmet expectation.
Resolution Strategies
What’s the one thing you wish your law firms would do a better job of — that would make them stand out among their peers — and that would make your life easier?
Communication and Reporting
Analysis and Strategy
Business Partnering
Faster Resolution
Resolution Strategies
Less focus on “perfect…” Stop “churning” and use your experience… Less time in the discovery “washing
machine…” Earlier identification of settlement vs. trial… Move cases more quickly…
Speed to Resolution
EMAIL ADDRESS
& PHONE
NUMBER
WHAT LAWYERS PUT IN THEIR
BIOS
WHAT CLIENTS LOOK FOR IN LAWYER BIOS
Will you return my calls?Where I went to law school in 1973
The judge I clerked with
Every type of matter I’ve worked on
Courts and bars I’m admitted to
What other lawyers think of me
Law Review articles written
Are you an arrogant jerk?
Do you have experience doing exactly what I need?
Links to blog posts?
What are you really good at?
What do your clients think of you?
Are you on Facebook or Twitter?
Resolution Strategies
Resolution StrategiesLitigation Management
The management of relationships that occur in the course of litigation.
“The litigation manager must anticipate and shape the trajectory of emerging issues or face
being overwhelmed by a perfect storm of key stakeholders — trial attorneys, media, regulators and customers.”
— Steven B. Hantler, Associate General Counsel, DaimlerChrysler. New Core Competencies for the Litigation Manager, Litigation Management, Spring 2003
Resolution StrategiesLearn strategies to: Develop techniques for early resolution.
Understand and manage relationships leading to quicker resolution.
Recognize and understand the impact of data on the resolution process.
Meet and/or exceed client expectations.
Resolution Strategies
New executive team — new strategy Operational issues — expertise — internal v. external
staffing, too many or not enough adjusters, office locations
No longer writing business — ongoing or run-off Too many files — workload standard model New customer/client demand — dedicated team,
special handling instructions, own attorneys Increased indemnity and/or expense — legal,
medical, pharmaceutical vendor
Identify opportunity
Resolution Strategies
Understand the client’s operation — ask for the organization chart or create one yourself.
Learn what the company/client expects from each role — adjuster, supervisor, manager, home office examiner, claims counsel, litigation manager
Determine what each role expects from you — realizing that over time each will formulate an opinion of your services.
Plan how to meet the company’s “official” resolution strategy — Know that the expectations of each party may differ and have a plan to appropriately address where such may be at odds with the official strategy.
Know what client metrics will be used to evaluate your performance — average legal fees, indemnity/loss payments, total cost per case, cycle time, guideline compliance, survey and audit results.
Opportunity presented
Resolution Strategies
True or False
Resolution strategies only involve matters in litigation?
Resolution Strategies
FalseClaims organizations often develop closure
strategies to resolve matters that are not in litigation or create side-by-side resolution strategies for all appropriate claims.
Resolution Strategies
Problem
Data Analysis
Develop Platform
Too many claims, not enough adjusters. Why can’t we get these claims settled?
Number of claims Number of handlers Number of attorneys Average time to resolve Average cost
Convergence/Consolidation
Competitive Bidding
New Billing Methodology
Resolution Strategies
Implement→
Monitor→
File TransferNew CounselTraining Technology
Scorecard Metrics
Complaints RelationshipsGuidelines
Resolution Strategies
True or False
1. Files settle before transfer to new firms?
2. Indemnity will increase?
Resolution Strategies
1. True – 20 to 30 percent of files will settle before transfer to new law firm.
2. False – Loss dollars will be maintained or lower than expected and total cost of claim will decrease (loss + expense).
Resolution Strategies
No Yes0%
10%
20%
30%
40%
50%
60%
70%
80%
71%
29%
In general, does more money spent on the defense of a matter reduce loss costs?
National Litigation Management Study for the Claims and Litigation Management Alliance. Conducted by Revere Advisory, Inc. (2011)
Resolution Strategies
No Yes0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100% 89%
11%
In general, do you believe that higher compensation to law firms results in better outcomes?
National Litigation Management Study for the Claims and Litigation Management Alliance. Conducted by Revere Advisory, Inc. (2011)
Resolution StrategiesConsiderations
COMPANY CLIENT Claims Corporate Law Underwriting Actuary Internal Audit Executive Team and Board Marketing Broker/Agent Primary/Excess Co-defendant Reinsurer Vendor
Product Team General Counsel Personal Counsel Litigation Manager Risk Manager CFO Claims Manager Broker/Agent Special Handling Instructions Consent
Resolution Strategies
Simple Individual matter One state or jurisdiction/line of business No client involvement Time and expense Flat fee
Complex Group of matters Multiple states or jurisdictions/lines of business Client involved Alternative fees Time and expense
Resolution StrategiesExamples
• Arrowpoint Capital – Alternative Fee Program• Pfizer – RFP Evaluation Scorecard• Plaintiff Law Firm – 20% Contingency Fee for Early
Resolution• Tyco/UK – Fixed Fee Agreement and Bonus Payment• Eversheds – RAPID Resolution• Marsh – Claims Inventory Workout• Fair Outcomes and Cybersettle – Electronic
Settlement
22
Resolution StrategyBuilding
Strategy RFP Selection Implementation and training Tools and technology Scorecard, assessment and data management
Resolution Strategies
John Bohyer, J.D.Linette Ranieri