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A Winning Strategy for Selecting the Defense Counsel Your Organization Needs and Deserves

Whether you are general counsel, vice president of claims, the claims manager of your particular organization, or in charge of overseeing your business’ legal operations, one of your main responsibilities is likely the selection and ongoing evaluation of your defense counsel.  Some of the factors universally considered when making this assessment are the general knowledge, experience and competence of the attorney/firm, the hourly rate being charged, and the coverage area(s) they can assist you with.  However, far too often that is where the analysis ends, overlooking additional considerations that can mean the difference between average legal representation that simply “gets the job done” and outstanding legal representation that can propel your claims/litigation department and organization to new heights.  When making this all-important assessment, the following five factors should be given careful consideration.

  1. Are the goals that are important to you / your organization at the forefront of your defense counsel’s overall defense strategy and case handling approach ?

    Effective defense counsel should always keep a close eye on the client’s “bottom line” when assessing the strengths of any available defenses on a given case, and recommending whether to ardently defend a given matter versus taking a close look at a settlement that will limit ongoing litigation costs.  Beyond this basic analysis, however, there are usually overarching goals that are important to your organization.  These organizational goals may vary and can change over time.  For example, do you want your defense counsel to be consistently proactive about settlement (and avoid any protracted litigation wherever possible), or do you want to project a stronger defensive posture in order to send a message to a particular plaintiff and/or potential new litigants ?  Both approaches have benefits and drawbacks, but it takes an inquisitive and detail-oriented defense counsel to make sure he/she knows what your organization wants to accomplish in this regard.  When evaluating this factor, make sure your prospective counsel asks plenty of questions about what exactly you want to accomplish (in addition to simply watching “the bottom line”), and that they are flexible and prepared to implement specific measures to achieve these goals.  Try to avoid defense counsel that utilize a “one size fits all” approach as they are unlikely to help you excel.  Rather, make sure your counsel internalizes your goals and strategies, making them his/her own. 

  2. Is your defense counsel proactive and result oriented ?

    A good defense counsel does not operate on the defensive.  Rather, he/she is consistently proactive, and employs specific strategies and actions geared towards achieving certain desired results.  Defense counsel who often find themselves on the defensive may lack experience, may be neglecting to devise and implement a sound litigation plan, or may simply have too much on their plate.  Make sure you see a proactive approach from your defense counsel on a consistent basis.

  3. Does your defense counsel consistently and clearly communicate legal advice ?

    While you want to retain defense counsel that is attentive and focused on helping you accomplish your organizational goals, beware of retaining someone who is content with rubber stamping all of your decisions as to active or potential litigation.  You hire legal counsel for a reason, and that is to bring his/her expertise and know-how to the table and to help you achieve and surpass your stated goals when it comes to not only active litigation but also policies and procedures designed to limit risk and potential future litigation.  When faced with a particular scenario, make sure your defense counsel is not only able to present you with all of the potential options/avenues available (along with all of the benefits and potential pitfalls of each choice), but is also unafraid to provide you with his/her input as to what may be the best course of action for you given the circumstances.  The most effective defense counsel will clearly discuss all options with you, provide sound legal advice as to what your best course of action may be, and then proceed to execute the best litigation plan possible based on the route you have decided to take.

  4. Is your defense counsel regularly accessible and responsive ?

    Nothing is more frustrating for a client than an attorney who is not regularly accessible and/or who does not timely return calls or emails.  We all get busy, but not having a reliable defense counsel who is consistently responsive and attentive to your needs will make it that much harder for you to achieve and surpass your organizational goals.  If these goals are important to your defense counsel, then you should expect your questions or concerns to be addressed in a timely manner.

  5. Is your defense counsel pleasant and kind ?

    Life is too short to have to deal with unpleasant exchanges with individuals who allow daily stressors to impact the way they treat others.    If you find a defense counsel who checks all of the boxes above and is also not only respectful but consistently pleasant and kind, you have hit paydirt.  The best and most effective organizations think of their defense counsel as trusted components of their team.  They also expect and demand the same level of respect, teamwork, and camaraderie from their defense counsel.  You should do the same.

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