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Vol. 10 - Issue 3
April 28, 2021
New Coverage Opinions Column: Leading Coverage Lawyers Share “If I Knew Then What I Know Now”
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Now and then I start a new column in Coverage Opinions. This is one of those nows and thens.
Sometimes I find myself thinking about things that I did as a coverage lawyer early-on in my career. And, when having such thoughts, I often wonder what I would have done differently in the situation if I knew then what I know now.
I’m sure others have such thoughts. So I decided that this called for a new column in Coverage Opinions. I would reach out to some of the nation’s leading coverage lawyers and ask them to share with readers lessons that they have learned over the years.
In essence, the column is designed to give younger lawyers the benefit of wisdom -- without their need to spend decades figuring it out for themselves.
For the inaugural column, I asked Ron Schiller and Dan Layden, shareholders at Philadelphia’s Hangley Aronchick Segal Pudlin & Schiller, to be the first to take the plunge. They graciously agreed. Ron and Dan have extensive experience representing insurers in some of the most complex and high-profile coverage cases is America. When I read a significant D&O coverage decision, I’m not surprised to see Ron’s and Dan’s names on it as counsel for an insurer. My surprise is when I don’t.
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Ron Schiller |
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I have three lessons learned to share. Two of them are particularly insurance focused, while one is more geared to general litigation. I add a fourth lesson learned that is not so surprising but bears keeping in mind through the years and occasional hard times.
First, patience remains a virtue. Too many times, a case begins with a hostile court, a preliminary motion lost or even an important motion lost, just to result one or three years later in a major turnaround. Staying on target, keeping focused, and never letting the interim upset sidetrack you or the client are much more important than I anticipated 30 years ago. Few things are as rewarding professionally as sharing a win with the client who stuck with you until the jury, judge, arbitrator or appeals court hands you a win after a past setback. |
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Second, effective advocacy on highly technical disputes means talking to the judge, jury, panel or appeals court like you would break down the case in a conversation with a smart friend. This is much more important than I realized initially. Judges are not persuaded by brilliance they don’t have the time or patience to understand. They like to reach the right conclusion with a smart, practical argument they can get the first time.
Third, a successful practice comes as much from strong client relationships as it does from your win-loss record. For the most part, after years of hard work, you truly are not measured solely by whether you won the last motion or case. Keep this in mind.
Fourth, through it all, having wonderful colleagues who have your back is critical. |
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Dan Layden |
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First, consistency matters. So much development as a young lawyer is learning how to be an advocate. In my first years of practice, that often translated into trying to find answers that I thought our client wanted for thorny coverage issues. I learned over time that what insurer clients really want is consistency on issues that they can apply over time. Whether that's how to identify "related claims" or a common "occurrence", what constitutes "abuse," or how to allocate coverage, insurance companies want to know how to apply their contracts fairly to the facts of any individual claim. Sometimes that results in a finding of coverage and sometimes the road takes you a place where coverage is not available.. But being consistent in your advice or advocacy helps insurers communicate and develop credibility with their clients – the insureds. |
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Second, insurance coverage is not a niche practice – it's a booming industry. New product lines are constantly being developed and existing product lines evolving. There's opportunity for practitioners that stay on top of or ahead of the current and developing exposures – e.g., asbestos, Y2K, sexual abuse, opioids, COVID-19.
Third, know and anticipate your audience. While judges and juries are insurance consumers, don't assume they'll understand your client's insurance policy (or initially know the difference between a "duty to defend" and defense costs as part of "loss"). So whether you're drafting a brief or advising on a reservation of rights, keep in mind that people other than the insured might be called on to decide if a coverage position is correct. Speak in language they'll understand. |
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