company would not have approved them.
It is reasonable to ask the attorney if this
matter is truly novel. If the firm has expertise in this area, they have institutional
knowledge to draw on in addressing the
issue which makes the case a summary
If so, what was the outcome?
This is probably not the first time the
firm has confronted such a legal matter,
and the attorneys should have institutional knowledge of the issue involved in
the SJM. Ask counsel to confer with colleagues to assess whether prior motions
on the issue prevailed or failed.
2. Can you repurpose any prior
work product for this case?
Reinventing the wheel makes financial
sense for lawyers, but it is not cost-effective for clients. If the firm has addressed
the scenario before, it may be able to repurpose that work product since attorneys rarely deal with novel issues.
Law firms should have a knowledge
management plan to identify past work
product they have developed on similar
issues. Then, they can customize and
adapt that to another case’s needs. This
is not a matter of just parroting earlier
writings and ideas, but an opportunity
to avoid recreating similar work at a client’s expense.
3. How much will it cost?
What is a realistic estimate of the cost
to prepare the summary judgment motion? These are not inexpensive. There’s
the research, drafting, editing, finalizing
and the filing. Then the other side’s response to the summary judgment motion
and litigation costs can skyrocket. This
is a common — albeit costly — phase of
litigation. Weigh the costs of summary
judgment motions as a component of the
overall litigation expense. Does it make
Should You Authorize that
Summary Judgment Motion?
Adjuster Wendy K., works in the commercial lines claim unit of a large insurance company based in Chicago. She scratches her head while reading defense counsel’s report
— the third one today — where she’s asked to authorize filing a
motion for summary judgment on an automobile liability claim.
How does she know what to do? Adjusters are often baffled and take
the path of least resistance by approving the attorney’s request. But
is that the best decision?
Instead, consider using a template for
deciding. But first, some nomenclature. A
motion for summary judgment (“MSJ”)
is a request for the court to rule that the
plaintiff has no case, since no facts are disputed. The defense claims that either the
case should not go to a jury, or that a jury
could only rule for the insured. In managing litigation, adjusters are often asked
to authorize defense attorneys’ summary
judgment motions. Before reflexively saying “yes” just because counsel suggests
one, consider asking these six questions.
1. Have you or your firm
addressed this legal issue
Chances are either the attorney and or
the firm has dealt with this situation previously. Rather than start anew, probe for
their frame of reference. Odds are they
are approved counsel due to their expertise in this legal area, whether it is auto
liability, premises liability, workers’ compensation, medical malpractice or some
other areas. If they weren’t skilled in that
area of the law, odds are the insurance