Get to the point! Claims examiners are juggling more responsibilities than ever, with less time to do them. Meanwhile, legal counsel, striving to be both transparent and thorough, provide numerous updates throughout a claim’s lifecycle. But how often do these reports actually help claims professionals do their jobs better?
In claims management, success requires strategic case management, not just routine updates. Effective counsel reports should provide clear, concise, and actionable insights—not unnecessary detail or vague summaries.
Why Counsel Reports Need to Evolve
Most counsel reports check the compliance box but fail to aid in managing litigation effectively. Examiners often receive boilerplate updates with recycled case history and little real insight.
What claims examiners actually need:
Clear case trajectory – What has changed, what hasn’t, and how does it impact claim strategy?
Analysis, not summaries – Focus on how new developments affect liability, causation, damages, and valuation.
Actionable recommendations – Instead of listing motions, highlight next steps and required actions.
Efficiency and brevity – Keep reports concise yet substantive, delivering only what is necessary.
When done right, counsel reports become strategic tools—guiding claims professionals toward proactive, informed decision-making.
5 Elements Every Counsel Report Must Cover
To ensure optimal case outcomes, reports should follow a structured, action-driven format. Every status report should answer these five critical questions upfront:
1. What’s This Case About?
Claims examiners manage high caseloads. Give them an immediate snapshot—don’t make them dig through files. Provide:
A concise case summary (just a few sentences).
Key legal and factual issues impacting liability and damages.
The current litigation decision point (settlement, defense, or further investigation).
2. What’s New Since the Last Report?
Stick to substantive updates that show case progress and strategy shifts. Avoid repeating past details. Address:
Significant developments since the last update.
Discovery, depositions, expert reports, or court rulings that impact the case.
Any shifts in case valuation due to new evidence.
3. Has Anything Changed That Impacts Strategy or Value?
This is the heart of the report—claims examiners need your assessment, not just facts. Provide:
Liability updates – Has new evidence shifted fault assessment?
Causation analysis – Do new medical reports, expert findings, or testimony affect the argument?
Damages evaluation – Has the potential payout increased or decreased?
4. What’s Next?
After outlining past developments, give a roadmap for what’s ahead. This fosters collaboration and keeps claims aligned with litigation strategy. Include:
Upcoming deadlines, motions, depositions, or mediations.
Key decisions required in the next phase.
Any budget or strategy adjustments based on recent developments.
5. What Does Claims Need to Do?
Be direct—if you need something, ask for it. Address:
Required approvals or actions from claims.
Justification for requests (e.g., expert retention, budget modifications, additional investigation).
Transforming Legal Reports into Strategic Tools
A well-structured report benefits everyone:
✔ Claims professionals get clear, actionable insights, reducing follow-ups and delays. ✔ Legal counsel stays aligned with claims strategy, ensuring cost-effective litigation. ✔ Case outcomes improve through data-driven decision-making.
Counsel reports should be more than just updates—they should be decision-making tools. By focusing on new developments, impact analysis, and next steps, legal reporting shifts from passive updates to proactive case management.
How does your organization ensure counsel reports provide the right insights? Let’s discuss in the comments below!
In the first article of this series 5 Fatal Flaws in Litigation Management, we examined the persistent “us vs. them” mentality that often separates insurance carriers from legal counsel. This division undermines collaboration, increases costs, and delays claim resolutions. But what if the solution lies in redefining the dynamic—not as adversaries but as collaborative allies striving for shared success? It’s time to rethink litigation management and embrace a partnership approach.
Charting a New Course: Building Bridges in Litigation Management
Transitioning from an adversarial stance to a collaborative partnership requires purposeful changes in culture, communication, and strategy. Consider this industry guideline as a starting point:
“Adjusters should maintain control of the claim and actively manage the claim with the goal of successfully concluding it.”
This principle underscores the importance of adjusters remaining engaged while empowering counsel to execute strategies aligned with the carrier’s objectives. Let’s explore actionable strategies to foster this partnership.
1. Cultivating a Culture of Collaboration
At the heart of a strong carrier-counsel relationship is mutual respect and shared objectives. Here’s how carriers can foster this culture:
Set Shared Goals: Collaboratively define case outcomes, such as settlement timelines or trial objectives. Aligning from the outset creates a unified direction.
Acknowledge Expertise: Recognize and integrate counsel’s specialized knowledge of legal intricacies and jurisdictional nuances into claims strategy.
2. Clear Communication: The Key to Alignment
Consistent, transparent communication bridges gaps and ensures alignment. Many industry guidelines recommend regular updates to keep all parties on track:
“Attorneys should provide concise case updates, strategy outlines, and key decision points requiring adjuster input.”
Here’s how to take communication to the next level:
Standardize Communication Protocols: Define expectations around response times, reporting formats, and escalation points.
Leverage Technology: Use secure platforms to share real-time updates, analytics, and case documents.
3. Empower Counsel While Maintaining Oversight
Micromanaging legal teams often leads to inefficiencies. Instead, empower counsel with clear boundaries:
Conditional Autonomy: Allow counsel to independently settle claims within pre-defined thresholds.
Actionable Budgets: Work with attorneys to create detailed budgets aligned with case goals and monitor them in real-time. Budgeting is a great way to learn more about the case and have an open discussion about strategies.
4. Align Incentives to Drive Outcomes
Fee structures and performance metrics play a pivotal role in fostering collaboration. Consider these strategies:
Alternative Fee Arrangements (AFAs): Explore options like flat fees or success-based bonuses to reward efficiency and results.
Performance Metrics: Regularly evaluate counsel based on case duration, cost-effectiveness, and client satisfaction.
5. Adopt Decision Point Frameworks for Strategic Clarity
Decision frameworks like Decision+™ integrate legal counsel into a structured process, streamlining decision-making at critical junctures. Such frameworks ensure alignment on choices like settling, litigating, or pursuing further investigation.
“The decision-making process at each juncture demands a careful evaluation of the evidence, potential outcomes, and broader implications.”
Why Collaboration is Worth It
Reframing counsel as strategic partners unlocks measurable benefits:
Cost Savings: Reduced inefficiencies and legal expenses.
Faster Resolutions: Eliminated delays and accelerated case progression.
The question isn’t whether collaboration can help but how we can implement it effectively.
Join the Conversation
We’ve outlined strategies to foster collaboration between carriers and legal counsel, but every organization’s challenges and successes are unique. Now, it’s your turn:
What’s your biggest challenge in fostering collaboration between carriers and counsel?
Have you implemented any of these strategies, and what results have you seen?
Are there other approaches that have worked well for your organization?
In the final article of this series, we’ll dive into specific tools and frameworks—like advanced analytics and technology platforms—that support collaborative litigation management. Until then, share your insights in the comments below. Let’s learn from each other and drive meaningful change in litigation management.
With over 25 years of experience in the insurance industry, I’ve had the unique opportunity to see both sides of the litigation management equation—first as a defense attorney representing carriers, and later as a claims professional hiring counsel to protect insureds. Despite decades of advancements in technology and claims practices, one critical aspect has stubbornly remained unchanged: the strained dynamic between insurers and their legal counsel. The pervasive “us versus them” mentality continues to undermine collaboration, inflate costs, and prolong claim resolutions. Instead of fostering a true partnership, the focus has often shifted to controlling defense costs, leading to rigid oversight rather than meaningful teamwork. Yet, I firmly believe this doesn’t have to be the case. True collaboration—where counsel and claims professionals align around shared outcomes—isn’t just a lofty goal; it’s a necessity. The question is, are we ready to move beyond surface-level cooperation and embrace a partnership that truly delivers value?
Over the next few articles, I will delve into the persistent challenges plaguing litigation management and introduce practical solutions to bridge the gap. While these insights may seem straightforward, the fact that these issues persist underscores their complexity. This article serves as the starting point, outlining the problems.
I will be exploring solutions to this problem and present the Decision+™ approach—a framework designed to accelerate decisions and reduce payouts, which fosters genuine collaboration, leverages innovative strategies, and embraces technology to transform litigation. Together, we can break free from outdated practices and create a more efficient, collaborative future. Stay tuned for the solutions ahead.
Problem 1 – The Carrier-Counsel Divide
A key issue in litigation management is the lack of alignment between carriers and counsel. Many industry guidelines emphasize the importance of adjusters maintaining control of claims during litigation:
“Adjusters should proactively handle the claim in litigation and not abandon the claim to defense counsel just because the claim is in litigation.”
Despite these guidelines, adjusters often relinquish control once litigation begins, treating attorneys more as external agents than as integral members of the claims team. This hands-off approach results in a leadership vacuum, leaving attorneys to manage cases without the benefit of a cohesive claims perspective or strategic guidance. The outcome is a reactive process with limited opportunities for meaningful collaboration, hindering both efficiency and effective resolution.
Left to navigate cases independently, attorneys often make decisions that are technically sound but disconnected from the carrier’s broader objectives. The lack of alignment can lead to:
A focus on litigation tactics over settlement strategies increases filings, prolonging cases and driving up costs.
Overuse of depositions and document requests without clear plans inflates expenses.
Without guidance, attorneys may prioritize billable hours over efficient resolutions, conflicting with cost-containment goals.
The carrier-counsel divide highlights a critical need for stronger integration and alignment. Without a unified approach, inefficiencies persist, and opportunities for timely and effective case resolution are missed. Building a true partnership based on shared goals and open communication is essential to overcoming these challenges and ensuring better outcomes for all stakeholders, especially the insured.
Problem 2 – Costs and Outcomes
The disconnect between carriers and counsel has significant financial and operational consequences, driving inefficiencies that disrupt the claims process. Ineffective collaboration exacerbates three critical issues:
Delayed Resolutions: Without streamlined decision-making, claims linger in litigation for extended periods, escalating frustration and costs.
Escalating Costs: Poor coordination often results in prolonged lawsuits that inflate expenses without delivering meaningful value.
Erosion of Trust: Lengthy litigation leaves policyholders feeling overlooked, undermining trust and damaging the carrier’s reputation.
Efforts to address these challenges through communication mandates and litigation plans have had limited impact, largely due to the entrenched adversarial mindset between carriers and counsel. The ongoing emphasis on cost control rather than collaboration continues to perpetuate inefficiencies and dissatisfaction for both sides.
Problem 3 – Culture and Billing
At the core of the carrier-counsel division lies a systemic issue: the culture of litigation management within the insurance industry. The dominant focus on cost containment often overshadows the need for collaborative, outcome-driven relationships. Industry guidelines frequently emphasize the importance of aligning legal strategy with claims objectives:
“Attorneys must align with the overall claim strategy and obtain adjuster approval for significant decisions such as filing motions, hiring experts, or pursuing depositions.”
However, in pursuit of cost control, the industry has swung to extremes, implementing stringent billing guidelines and complex coding requirements. While these measures aim to rein in expenses, they often have unintended and counterproductive consequences:
Administrative Overload: Attorneys spend an increasing amount of time ensuring bills meet approval standards rather than focusing on meaningful casework. This adds layers of bureaucracy, detracting from substantive progress on cases.
Micro-Management of Tasks: Carriers frequently require pre-approval for even routine tasks as a cost-control measure. Instead of fostering open dialogue about case strategies, these conversations often occur indirectly through billing systems, reducing opportunities for collaboration.
Frustration and Distrust: Restrictive guidelines leave counsel feeling stymied and claims perceiving attorneys as billing-focused, eroding trust and hindering teamwork. Attorneys may feel undervalued or constrained, leading to a transactional relationship where both parties operate defensively. This dynamic discourages proactive problem-solving and reinforces a mindset of minimal compliance rather than genuine partnership.
The cultural divide stems from viewing attorneys as cost centers rather than strategic partners, limiting their ability to craft solutions and drive effective resolutions. This compliance-focused relationship stifles innovation and collaboration, leaving carriers with higher costs and delays, and attorneys constrained by rigid controls. Breaking this cycle requires shifting from cost-control to a value-driven approach.
Long-standing issues—misalignment, cultural divides, and inefficiencies—have persisted throughout my three decades in the industry. Change is a necessity.
Problem 4 – Misaligned Priorities and Increased Documentation Demands
A critical issue in litigation management arises from a lack of understanding between claims professionals and legal counsel regarding their distinct roles, responsibilities, and external pressures. While both aim to achieve favorable outcomes for the insured and the carrier, their differing methods, priorities, and incentives often clash, undermining collaboration and amplifying inefficiencies.
Legal counsel, incentivized by billable hours, dedicate significant time to documenting their work—efforts that may not always align with the carrier’s broader goals. Meanwhile, claims professionals focus on efficiency, striving to resolve cases swiftly and cost-effectively while also managing mounting scrutiny from internal auditors, regulators, and compliance teams. This dual burden of efficiency and oversight has increased demands for meticulous documentation at every step, creating friction between the two groups.
The disconnect manifests in several ways:
Documentation Overload: Attorneys feel encumbered by frequent requests for detailed reports, while adjusters grapple with the pressure to justify their decisions to superiors, auditors, and regulators, often in real time.
Strategic Misalignment: Attorneys, concentrating on legal nuances and litigation risks, may lose sight of broader claims strategies. Conversely, adjusters, preoccupied with timelines and audit compliance, may overlook critical legal considerations.
The lack of alignment between claims professionals and legal counsel creates a cycle of inefficiency, with each side constrained by competing demands and priorities. This misalignment not only hampers collaboration but also detracts from achieving timely, effective outcomes for all stakeholders. Bridging this gap requires a shared understanding of roles and a commitment to aligning strategies with overarching goals.
Problem 5 – The Impact of COVID-19 on Staffing and Collaboration
The COVID-19 pandemic further intensified these challenges by introducing new pressures on both claims departments and legal counsel. Remote work, staff shortages, and increased caseloads have forced both sides to “do more with less,” often under strained circumstances. The demands for enhanced documentation and compliance have only grown in this environment.
For claims professionals, staffing reductions and remote operations have disrupted workflows, resulting in delays in decision-making and reduced capacity for active oversight of litigation. Attorneys, meanwhile, have faced similar staffing challenges, coupled with court backlogs, increases in nuclear verdicts and procedural changes that demand additional effort to navigate. The combined effect has heightened existing tensions, as both parties feel overburdened and under-supported.
Key impacts of the post-COVID environment include:
Increased Scrutiny: Carriers face higher demands from regulators and auditors, requiring extensive documentation and justification for claims handling and litigation decisions.
Reduced Collaboration: Remote work and virtual communication tools have made it harder for claims professionals and attorneys to engage in the face-to-face discussions necessary for building trust and aligning strategies.
Burnout and Attrition: Both claims and legal teams are experiencing high turnover rates, leading to a loss of institutional knowledge and continuity, further complicating the alignment of goals and strategies.
As noted, the COVID-19 pandemic has intensified challenges in litigation management, with remote work, staffing shortages, and increased caseloads disrupting workflows and straining resources. These pressures highlight the urgent need for a more adaptable, collaborative approach. Prioritizing clear communication and shared strategies is essential to building a resilient framework for effective litigation management.
Looking Ahead
The problems outlined in this article underscore the urgent need for a fundamental transformation in litigation management. These long-standing issues—misalignment, cultural divides, and inefficiencies—have persisted throughout my three decades in the industry, now intensified by post-COVID pressures. While these challenges are significant, they are not insurmountable. Addressing them requires a deliberate shift in mindset, where carriers and counsel move beyond entrenched adversarial dynamics to foster trust, mutual respect, and alignment around shared goals.
At its core, this transformation is about reframing the carrier-counsel relationship as a partnership, one where both parties are aligned around a common purpose: achieving fair, efficient, and value-driven claim resolutions. It is only through collaboration and open communication that the full potential of this partnership can be realized, benefiting insureds, carriers, and counsel alike.
Future articles will explore actionable solutions, innovative strategies, and frameworks like my Decision+™ approach. Together, we can break free from outdated practices and transform litigation management into a strategic advantage. Stay tuned for the next steps toward meaningful change.
Is your claims department losing money on unnecessary litigation? If you’re not employing robust Early Resolution Strategies (ERA), the answer is probably a resounding “yes.” But don’t worry, savvy claims leader – we’re about to turn that ship around.
In my years of working with insurance companies, I’ve seen far too many claims spiral into costly legal battles that could have been avoided with proper ERA. Today, we’re diving into five game-changing strategies that will help you minimize litigation costs and keep your CEO smiling when they review those quarterly reports.
Why Early Case Assessment Matters
Before we jump into the strategies, let’s remind ourselves why ERA is so crucial. Early case assessment is your claims department’s crystal ball – it helps you predict the likely outcome of a case, estimate potential costs, and decide on the best course of action early in the process. Go review some recently settled claims and ask could the decision to settle have been made sooner? Would that have changed the approach to litigation spend? Faster resolutions, lower costs, and happier policyholders is certainly a desirable outcome. Now, let’s get to those strategies!
5 “Must-Implement” ERA Strategies
Embrace Data Analytics – If you’re not using data analytics in your ERA process, you’re flying blind. Modern claims systems are treasure troves of historical data. Use this data to identify patterns, predict outcomes, and make informed decisions.
Implement a Standardized ERA Checklist – Don’t leave ERA to chance or individual discretion. Develop a comprehensive checklist that covers all aspects of early case assessment. This should include liability analysis, damage evaluation, potential defenses, settlement value estimation, and litigation cost projection. A standardized approach ensures consistency and helps less experienced adjusters spot potential issues early.
Leverage Technology for Document Review – Gone are the days of manually sifting through mountains of documents. Invest in technology that can quickly analyze large volumes of data. AI-powered document review tools can identify key information, flag potential issues, and even suggest similar past cases – all in a fraction of the time it would take a human.
Collaborate with Legal Early and Often – Your legal team shouldn’t be an afterthought in the claims process. Involve them early in complex or high-value claims. Their expertise can help identify potential legal issues, assess the strength of the case, and develop effective strategies. Keep everyone on track and the outcomes will improve.
Train Your Team in ERA Best Practices – The best ERA tools in the world won’t help if your team doesn’t know how to use them effectively. Invest in regular training sessions on ERA best practices. This should cover not just the technical aspects of assessment, but also soft skills like negotiation and communication. A well-trained team can turn your ERA process into a powerful cost-saving machine.
Putting It All Together
Implementing these strategies isn’t a one-and-done deal. It requires ongoing commitment, regular evaluation, and a willingness to adapt as you learn what works best for your organization. But trust me, the payoff is worth it. I’ve seen companies reduce their litigation costs by up to 30% through effective ERA strategies.
Remember, every dollar saved in unnecessary litigation is a dollar that goes straight to your bottom line. And in today’s competitive insurance landscape, that’s an advantage you can’t afford to ignore.
The ERA Challenge
Here’s a challenge for you: take a look at your last 10 litigated claims. How many of them could have been resolved earlier with a more robust ERA process? If the answer makes you uncomfortable, it’s time to take action.
What ERA strategies have worked well in your claims department? Or what challenges are you facing in implementing ERA? Share your experiences in the comments below – let’s learn from each other!
Lawyers and claims professionals evaluate a case and expect it to settle in a certain range. They also expect the other side will act in a certain way on. When the negotiation does not go as expected, we react. The reaction is instinctive and emotional. Hey, we’re human.
One of your strategies when the other side attacks you or your client or your case evaluation, can be to go to the balcony.
Bill Ury, in Getting Past No, expounded upon this strategy. If you assume the negotiation is taking place on a theater stage, going to the balcony of the theater can give you a broader perspective of what’s really going on. It has the following salutary effects:
It distances you from the fray.
It calms your reactive mind.
It allows you to slow down the negotiation.
It affords you time to name the game the other side is playing and decide how to react logically, as opposed to emotionally.
When negative emotions come up, and they will, take a deep breath. Take a time out, either literally or figuratively. Think it through. As Ury says, “Keep your eye on the prize.”
Be proactive about emotions in negotiation. They always surface—your client’s as well as yours.
We all know the slogan, “Don’t get angry, get even.” In negotiation, it’s not about getting angry or getting even. It’s about getting what your client wants, which is the most value from the negotiation.
I just read a fabulous new book by Stuart Diamond, negotiation expert and professor at The Wharton Business School, called: Getting More. If you want to get more out of your negotiations, get Getting More today!
Professor Diamond outlines, and then explains, 12 negotiation strategies. His rationales are likely to make “hard” bargainers second-guess strategies that may (or may not) have worked for them in the past. At a minimum, adding these strategies to your skill set will broaden your negotiation worldview.
To give you a flavor of Professor Diamond’s thinking, here are the strategies in summary form:
Goals are paramount.
It’s about them.
Make emotional payments.
Every situation is different.
Incremental is best.
Trade things you value unequally.
Find their standards.
Be transparent and constructive, not manipulative.
Always communicate, state the obvious, frame the vision.
Find the real problem and make it an opportunity.
Embrace differences.
Prepare—make a list and practice with it.
Diamond uses a simple comparison to recommend his strategies: “It’s the difference between saying ‘I play football’ and ‘I play professional football.’”
If you want to negotiate like a pro, buy the book. Read the book. Improve your negotiated outcomes. And, be sure to let me know how it worked for you!
