Communicate! Why Are Counsel Non-Responsive?

A recent CLM magazine article listed multiple reasons for claim processing inefficiencies. One was “unresponsive counsel.”

That got me thinking about why this should be.

Staff Counsel
Everyone is on the same team. Staff counsel have no motive to perform work to increase billings. Theoretically, at least, communication between Claims and staff counsel should be seamless.

Outside Counsel
Outside counsel who have secured a place on a carrier’s approved panel cannot rest on their laurels. These panels are routinely reviewed. Many carriers maintain departments or hire outside contractors to conduct deep-dive audits of panel counsel performance.

Panel counsel firms survive on income from their carrier clients. When panel counsel cannot handle the case due to a conflict of interest or geographic issues, outside counsel not on the panel may be appointed. They, too, want to keep getting these assignments.

So why would they put that at risk by failing to respond to client inquiries?

CUMIS Counsel
The insurer has the least amount of control over the activities of outside counsel who was chosen by the insured because of a potential coverage conflict of interest.  It may be difficult to obtain comprehensive reports because of the need to protect the insured’s continuing access to benefits from the insurer’s duty to defend.

Possible Reasons
Just as claims reps may be overburdened, so are their counsel. Many attorneys are juggling heavy caseloads that hinder their ability to respond promptly. Sometimes they automate their reporting by repeatedly sending in the same report with hardly any revision. If we’re being honest, let’s admit that some claims reps “check the box” that a report was received without drilling down to see if the case is progressing as it should.

Rather than creating a litigation plan unique to the case, many insurance defense attorneys defend on autopilot. They send out irrelevant discovery or concentrate on battening down facts when there is a dispositive legal issue applicable to the facts already known. I have also had claims reps tell me that their counsel ignore their directions.

Believe it or not, another reason may be that internal firm politics are getting in the way of efficient reporting.

A Solution For Settlement
We know that approximately 96% of all cases settle. I have reviewed many insurers’ litigation guidelines. Hardly any set rules about when to initiate mediation.

The earlier parties start talking about mediation, the earlier the case is likely to settle. Revising guidelines to define events, such as deposition of the plaintiff, which trigger evaluation of mediation at this time would be helpful.

If counsel (and perhaps claims) ignore the litigation guidelines, revision will be of little help. Of course, claims and defense counsel must cooperate to pay attention to their shared goal. Communication among all the players closes cases faster.