Resolution Strategies John Bohyer, J.D. Linette Ranieri © CLM Litigation Management Institute 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 True 1.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

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 Strategies Litigation 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 Strategies Learn 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 — e xpertise — 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 False Claims 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 Transfer New Counsel Training Technology Scorecard Metrics Complaints Relationships Guidelines

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 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 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 Strategies Considerations COMPANYCLIENT  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 Strategies Examples 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 Strategy Building  Strategy  RFP  Selection  Implementation and training  Tools and technology  Scorecard, assessment and data management

Resolution Strategies John Bohyer, J.D. Linette Ranieri