“Trials and Tribulations: What’s the Risk Manager’s Role in Litigation?”

1. “Trials and Tribulations: What’s the Risk Manager’s Role in Litigation?” Kevin Quinley CPCU Quinley Risk Associates LLC Society of Risk Management Consultants Charlotte, NC October 18, 2013

4. Brief History of Litigation Management • Early days – lawyers oversaw lawyers. • Adjusters overseeing lawyers & litigation • Caseload growth degrades oversight • Development of detailed “Litigation Guidelines” • Intense focus on cost management • Litigation Management become almost Exclusively Cost Management • Defense counsel & policyholders chafe at controls

5. 6 Risk Management Myths AboutTrials • “The risk manager should butt out!” • “I’m insured – why worry?!” • “I can go to trial on the cheap…” • “I have no say ….” • “Trial matters should be left totally to the Legal Department.”

6. Myth #1: “The risk manager should butt out!”

7. Bad Trial Result Causes Reputational Risk

8. Myth #2: “We don’t need to worry ...”

10. Myth #3: “I’m insured – why worry?!”

11. Involvement ….

12. Commitment ……

13. Myth #4: “I can go to trial on the cheap…”

15. “All I want is . . . an unfair advantage,” Hank Greenberg

16. Myth #5: “I have no say ….”

17. Myth #6: “I should leave trials to the Legal Department. “

18. 8 Ways to Tame Trial Expenses (Hint: Start Long BEFORE Trial!!) 1. Shop around on rates. 2. Require budgets. 3. Set “early warning tripwires” 4. Require advance notice of jumbo billings. 5. Meet on lawyer’s turf. 6. Require pre-approval….

20. Two Favorite Lawyer Activities ..

21. 8 Ways to Tame Trial Expenses (Hint: Start Long BEFORE Trial!!) • Watch the meter. 8. View ADR as A-OK

22. If you come to a fork in the road… take it!” ~ Yogi Berra

26. Weigh the Risks of Trial • Delay • High transaction costs • Cost ineffective • Unpredictable outcomes • Time-suck • Productivity drain

27. Do Trials Really Deter Future Claims??

33. The Fork in the Road: Settle or Defend? • How much at stake? • How important is precedent? • How much $$$ will it take to make a point? • How much are you willing to risk? • What are your odds of winning?

35. The Trials of Trial …. “Goin’ to trial is like a box of chocolates…. “ You never know what you’re gonna’ get!” --- Risk Manager F. Gump

36. “I don’t want to leave my fate in the hands of twelve people who are too dumb to get out of jury duty ..:”

40. Risk Manager Concerns Heading into Trial • “Should I push for settlement?” • “Have we notified all insurers?” • “Do we have the right attorney?”

42. Risk Manager Concerns During Trial • “Have we notified all insurers?” • “Do we have the right attorney?”

43. Risk Manager Concerns During Trial • Excess exposure? • Coverage “gaps”? • Is upper management informed? • Are you plugged in?

44. Best Practice: 5 Key Questions to Ask Your Attorney Each Day/Night … • “In summary form, what happened . . . ?” • “Any surprises?” • “Today's developments -- helpful, harmful or neutral to our case?” • “What happens tomorrow?” • “Has anything changed your assessment of the case, for good or ill?”

46. 4 Other Tips on Managing Trials • “Cheerlead” the attorney. • Invest in quality defense effort . • Don’t be “high maintenance.” • Have a corporate rep present.

48. Coping with The Big Hit • Post trial motions • Separate appellate counsel? • Post-trial appeal • Fashion P.R. strategy • Settlement pending an appeal • Consider impact on other or future cases

49. The Appeal -- Appealing or … Appalling? Factors to Weigh • Potential for making bad law • Added expense • Odds of success • Risk manager role in the decision