In every case, we are outmanned and out-funded. Usually by 2 or 3x, if not more. Some days it feels like legions of insurance defense associates received assignments just to pester and detract us from preparing our cases. Today is one of those days and I want to get it out of my system if you’ll allow me.
In the past month, the defense teams on three cases have gone to extraordinary lengths to gain continuances from the trial court—impugned our integrity, stretched stories, etc…. I routinely hear from lobbying machines and other propagandists how clogged the courts are. The reasons are clear for many of us who are in the court system each day. Insurance defense firms move to continue the cases and keep them clogging the court system. They do so as a tactic. And it can be very effective in wearing down a person who has already been through a lot and get them to settle for less. And in all honesty, it is terribly deflating for me.
To be fair, this can go both ways. Plaintiff attorneys can also drag their feet in hopes of getting a settlement before they realize little work has been done to get the case ready for trial. Regardless of settlement discussions, we must work hard to keep the cases moving and be prepared. Settlement discussions can evaporate overnight.
To get a full understanding of why cases drag on, it helps to understand the economic model of the litigation business. On one side, the plaintiff attorneys are paid a fixed percentage of the recovery, which is typically 1/3 of the recovery after fees and expenses are deducted. On the other side, the defense attorneys are paid by the hour, typically ranging from $150 to $300 or more per hour on a case. Therefore, the shorter the case, the less money to a defense firm. The plaintiff is paid the same. It is in the best interest of the defense firm to keep the case alive until they have to dispose of it—ie, the money has been taken out of it and the insurance carrier is tired of paying. Some defense firms who have a significant volume of business from one carrier can afford to settle some cases quickly. These are typically smaller cases or cases with insurance policy limits issues.
What we typically forget, is that insurance companies are not prompt payers. They often don’t even pay their own lawyers on time or routinely cut the bills of the defense lawyers. This is not any fun either as your outstanding bills as a defense lawyer can easily mount up to $10,000 or $20,000 before being paid. That is a lot of time to carry as a business owner.
We typically try to resolve our cases within 9 months. Sometimes it is 6 months, sometimes 18 months. The problem is that we have little control over the time frame. We can try to push them but desperate defense continuances are inevitable. Those lawyers are often overworked and underpaid. Their calendars are incredibly busy and complicated. Getting a trial date from them is like obtaining access to Fort Knox. It is tough. And once you have it, you must fight with all you have to keep it—and you can still lose it like I did this year already. I hate putting metrics all this stuff but it is important to track. We never want cases sitting around because a stale case is a bad case.
I am sure there are aspects of this in all businesses—getting resolutions is a difficult task and one that sometimes feels like it requires Herculean efforts. But that does not mean we should ever stop trying.