sense to spend two dollars to save one?
If the claim is a low dollar-value file,
could the summary judgment motion’s
price tag exceed the case’s value? If so,
does filing it make sense? As in any buying decision, determine the price. A
seasoned attorney should be able to estimate how much it will cost to prepare
and file the summary judgment motion.
A company can win the litigation “
battle” but lose the cost management “war”
by approving a summary judgment
without having any idea of the cost. Ask
about the cost!
Consider requesting a mini budget on
the summary judgment motion, or negotiate a not-to-exceed figure. This allows
the company to determine in advance the
project’s cost compared to the claim’s reserve, value and exposure.
4. All things considered, what
are the odds of prevailing?
Defense attorneys may only reluctantly
commit themselves to a percentage.
Politely press, nonetheless. This helps
in the decision of whether or not to
approve the request. Adjusters often
sense that attorneys suggest summary
judgment motions because they generate added work and revenue. It may not
serve an insurer’s or the policyholder’s
interest. Many attorneys hedge by saying there is a 50/50 chance of success.
As hard as it is for defense attorneys to
answer this question, insist nonetheless. It is simply a good faith, best-guess
estimate and not something to which
counsel will be held.
5. What is your best
estimate of when we will
know whether or not the
judge grants the motion for
In fairness, defense counsel has no con-
trol over this. Some judges rule quickly,
while others take longer to decide. De-
fense counsel may interpret a judge tak-
ing a long time as a good sign. Ask de-
fense counsel for his or her best guess on
whether it will be 60 days, 90 days or six
months. Sometimes, counsel can ask the
judges’ law clerks to get a sense, so en-
courage them to do so.
None of this suggests that adjusters
resist having counsel pursue summary
judgments or that lawyers propose such
work to inflate fees. However, summary
judgment motions consume substantial
time, energy and money. Ultimately, the
decision to pursue them comes from the
client or the insurer. These are strategic,
big-picture issues for adjusters managing
litigation. When working with defense
counsel who recommends filing a summary judgment motion, these should be
actual — not rhetorical — questions.
Kevin Quinley, CPCU, AIC, is the principal
of Quinley Risk Associates LLC and can
be reached at email@example.com.
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