Annual Conference 2010 

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1. Rethinking Legal Strategies in the New World

Technological advances and the recession have changed the litigation management world forever. With decreasing corporate revenues and insurance company premiums, there are unprecedented pressures to effectively manage and control legal spending. The question we have to ask is “How do we reduce and manage legal spending without compromising the quality of our representation?”

This panel will discuss the new world in which companies and insurers are demanding early exit strategies, alternative fee agreements, and are having their own employees conduct e-discovery and other litigation activities. The panel will also explore how technology can allow more effective client control over litigation costs. The risks and rewards are dramatic. You have to know how the world has changed to stay focused and cost effectively manage litigation.

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2A. On the Same Page—From the Quill to the Missive

In this presentation the modern topics of coverage determination and reservation of rights issues will be discussed using Advice (Quotes) from William Shakespeare. The presenters will present their session through the words of the great Shakespeare to illustrate the importance of making the right coverage decisions, the method by which such decisions must be made and the unintended results when such decisions are not made properly. Further, the presenters will focus on the importance of counsel and company remaining on the same page during the coverage analysis and conveyance of the coverage decision.

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2B. Matter management: what it means for claims and claims legal professionals

When is a claim not a claim? When it becomes a Matter.

When is an issue more than a concern? When it becomes a Matter.

For the defense, notice of suit is usually the first sign that you have a matter. Whenever you retain counsel, you have a matter. Litigated claims against policyholders and claims against your company are causes for counsel retention. Some insurance companies believe that matters need to be tracked and managed differently than other claims. Some law departments believe that matter management is different from the case management used by law firms.

This session will explore the benefits and challenges of deploying matter management – for claims departments, law departments, and also for law firms. Topics will include defining matter management and delve into design and deployment, establishing the goals, and setting up the criteria for measuring success. Questions about integration with existing claims and billing systems will be addressed, as well as security, and the opportunity for greater collaboration and communication between counsel and the corporation.

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3A. Getting to the Agreement: Perspectives on the Negotiation and Implementation of a Successful Alternative Fee Arrangements

This very experienced panel will provide an engaging discussion, from the perspective of general counsel, litigation director and defense counsel, on how to become comfortable negotiating an alternation fee program and the key shifts in the traditional paradigm over standard hourly billing. The panelists will cover potential pitfalls in the process and the various tools they have used successfully to jump-start the dialogue towards a successful and sustainable alternative fee program. The discussion will include differing perspectives from defense counsel, insurance carriers and self-insureds.

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3B. The Future of Litigation Management with Predictive Modeling

Insurance companies have been leveraging various technologies for more than a decade to better manage their claims and the costs associated with litigation. In the early 1990s, e-billing was introduced to streamline processes and automate guidelines enforcement. By the late 90s, the Internet was being leveraged to introduce collaborative case management systems. This evolved into today’s systems offering reporting tools to better understand law firm performance and other litigation trends.

What has been missing is advanced analytics to optimize this wealth of information into streamlined business processes and guided, proactive decision-making. The next generation of litigation management tools will begin to address this missing component.

Innovators today are developing predictive modeling technology for litigation management systems to achieve significant improvements in process and total claim outcomes. Moving forward, predictive modeling tools and methodologies will provide the basis for a new level of claims and litigation management, yielding improved claims outcomes.

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4A. Ethics Jeopardy Returns!

Back by popular demand! Earn a chance to win a prize, while playing a version of the game show “Jeopardy” based on the latest ethical dilemmas for attorneys and claims professionals. Topics will include ethics issues created by the use of social networking and other internet sites, ethical dilemmas faced by claims handlers, and the interplay between the Model Rules of Professional Responsibility and those ever present billing guidelines.

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4B. Vendor or Partner? The Impact Your Relationship With Outside Counsel Has On The Defense Dollar

Today’s competitive legal environment coupled with the current U.S. economy is forcing law firms and their clients to reevaluate their relationship. Businesses are evaluating the benefits of having a partnership rather than a vendor relationship with outside counsel. These newly defined relationships are creating new and exciting services, value and alternative fee agreements that are changing the legal industry.

The following presentation explores the differences between a vendor and a partner. Furthermore, this presentation will provide attendees with case studies, tools, and a step by step roadmap that businesses and insurance companies can use to determine if they would benefit from working with a vendor or a partner.

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5. The Impact of the Media on the Courtroom, Lawyers and Litigants

This session will explore the impact that television and film has on Jurors and how they process information delivered at trial. Panelists will describe how 24/7 news coverage, “legal” television shows and the internet effect public opinion in the courtroom, including examples of high profile individuals never charged but found guilty in the media. With jurors faced with pre-trial publicity and cameras in the courtroom, this session will offer suggestions on how to best address and work with the media.

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6A. Measuring the Value of Counsel

Attendees will be given insight into best practice litigation management and a blueprint to deploy these strategies in their operations. The program goes beyond bill review and traditional “solutions” in this area and calls for radical institutional overhaul in the insurance and legal industries to achieve true success.

The presentation will feature Matt Morrison VP Claims Legal QBE Regional Americas, an organization with great experience working with issues regarding operational improvement and litigation management. This will contrast with Daniel P. Costello whose firm, Daniel P. Costello & Associates LLC, employs litigation metrics, alternative fees, and geographic leverage to provide national solutions to insurance carriers. Bringing these prospectives together is Michael Haverson of Haverson Consulting ,an attorney and litigation management expert who had formerly worked as a VP for a international P&C carrier.. Mr. Haverson has nationwide experience in both managing complex litigation and legal service relationships with outside counsel.

Rather than presenting in abstraction the presentation will showcase real life success stories and the current operational implementations at best practice carriers and firms. The presentation will provide attorneys, and executives with the tools to develop, analyze, and create actionable plans to measure the value of counsel and close the loop on litigation management. The presentation will feature interaction and discussion.

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6B. Defending a Damages Claim

This panel will explore the interaction of the defense team members to determine the process to reach a successful resolution of the claim. What looks like a big deal and lots of exposure- is not always the case. The panel will discuss how they work together to determine the true value of a claim and hopefully facilitate the evaluation and negotiation process. This includes internet research, economist, structured settlement and the claims decision process.

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7A. Technology for Maximum Impact At Trial and Mediation

The effective use of technology in the Courtroom will capture the jury’s attention and drive home the critical points of your case. The use of visual communication at a mediation will persuade the mediator and adverse counsel of the power of your position. The best and most experienced lawyers know the power of effective use of exhibits and the experienced trial lawyer working together with the client can increase the impact of their presentation with strategic use of medical records and other documents.

Studies have shown that retention of verbal communication is minimal, as little as twenty percent, while the use of both verbal communication and demonstrative exhibits will increase retention by as much as fourfold. Jurors are not watching black and white television at home! Colorful and creative exhibits presented in a sophisticated manner will increase jury retention of crucial issues. See how technology in the Courtroom and at a mediation can pave the road to victory!

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7B. Legal Quality & Cost: Controlling Both, Sacrificing Neither

To determine the value and quality of delivered legal services you need to look at more than the Win/Loss column on a spreadsheet. To truly determine legal success requires every stakeholder to define what “value” and “quality” means to them. For an insurer, controlling litigation expenses on a policyholder’s behalf while cultivating a productive relationship with a legal provider may provide real value. For a defense firm, deftly balancing evolving client expectations with the realities of today’s business climate can equate with quality. Too often, however, stakeholder goals can be perceived as mutually exclusive, if not outright contradictory. In truth, working together to cultivate an ongoing, productive dialogue around the delivery of quality legal services and the legal expense process should be the aim of all parties: the firm, the insurer and the policyholder.

One contributing factor to this perceived disconnect is a historical lack of objective industry standards used to measure and compare law firm performance. However, emerging developments and technologies allow businesses to more effectively and accurately measure performance and control costs. This session will explore techniques for the collection and utilization of qualitative analytics and litigation data to control expenses; discuss the means by which to increase stakeholder communication and effectiveness; and determine methods by which to share this information and collaborate with legal providers and policyholders.

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Best Practices for Managing Deposition Value and Minimizing Deposition Expenses

Depositions are one of the most important - and expensive - parts of discovery. But it is one of the key methods for gathering key evidence during the discovery process. Learn best practices from industry veterans for using technology and common sense to gain the optimal benefit from the deposition process while keeping costs at a minimum. Come to hear panelists share their stories on topics such as....

• Using technology to manage transcripts and exhibits
• Using remote deposition technology to reduce travel costs and train junior staff
• Using video strategically to assist in settlement discussions
• The growing role of corporate counsel in selecting vendors

Techniques on budgeting, cost containment and creating predictable cost structures

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Case Closed: Methods for early resolution of disputes and litigation

Claims professionals, risk managers, underwriters and attorneys alike have a vested interest in successful and early resolution of disputes and litigation. This session will explore methods to achieve case closure and bring certainty to the uncertain world of litigation management. From interpersonal skills to conflict management to confidence, the workshop will focus on real life examples of how to use the applicable law in combination with the power of persuasion to tackle the case that seems like it will never end.

The purpose of the session is to identify strategies that succeed and to focus on why they succeed. The final objective is to have the participants take away with them tools to use in real life situations to limit and quantify risk from litigation.

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Class Actions: Plaintiffs’ Attorneys’ Dream, Insurance Carriers’ Nightmare

Tips on how to defend a class action filed directly against the insurer, and how to manage a case filed against an insured

It is undeniable that the number and cost of class actions have grown in recent years. Insurers are being targeted in particular as defendants as claim handling practices are put under the microscope by plaintiffs’ attorneys in the wake of recent natural disasters. The increase in class action filings has highlighted abuses of the process by plaintiffs’ attorneys, which range from arguably innocent forum shopping to all out fraud. Although class action litigation can be alarming from the perspective of insurers, these lawsuits can be successfully defended and efficiently managed to avoid excessive costs and unfavorable outcomes. The attorneys and insurance professionals participating on the discussion panel for this exciting seminar have weathered these storms and will provide attendees with a working knowledge of class action litigation and strategies for successfully defending and managing these unique lawsuits.

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Crisis Management: What Do You Do When Managers Depart From Personnel Policies And Standard Operating Procedures?

Session highlights importance of universal implementation and enforcement of employment policies and procedures. Attendees will be provided with examples of consequences of departure from policy and solutions to crisis handling in the waked of managerial mistakes. The roundtable will also focus on how the legal practitioner handles the problem when the claim is made. This course is particularly useful for department managers, attorneys and those involved with daily management of employees.

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Effective Management Of Discovery In A Complex Case

This program will be set in a “Truman Show” format where the audience is a “voyeur” to a meeting between a corporate National Claims Manager and the corporation’s Defense Counsel. This meeting is taking place to discuss how discovery can proceed in a complex products liability case in a cost effective manner. After the initial meeting gets started, the two are joined by the in-house corporate counsel “Vice-President of Information and Knowledge” and the company’s e-discovery consultant to discuss how the avalanche of e-documents will be marshaled and reviewed in anticipation of the defense of this case. Following the individual discussions, an overall plan for the defense of this complex case will be finalized by all 4 panelists through the summary of the items individually discussed.

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Enhancing Efficiencies and Cooperation in the Defense Relationship

This panel will explore some of the established and pioneering approaches to containing costs and achieving sustainable productivity improvements in a dynamic litigation services environment.

The panel members will examine and discuss methods to achieve the following goals:

1. Determine which activities in the litigation work flow are unsustainable.
2. Decide if technology is really achieving better results performing some litigation associated services.
3. Determine how can technology help improve:
   1. Outcomes
   2. Productivity
   3. Relationships
4. Determine, what is the adjacent value for your practice in implementing some of these technology driven productivity initiatives?

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How Lean Can Law Be? Successful Strategies for Reducing Cost

This roundtable will address practical, specific things which outside counsel, insurers and corporations can do today to increase efficiency, reduce costs, and improve results. Learn about lean practices, just-in time-scalability, metrics and ways to leverage technology.

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How To Value A Case

What’s the case worth? Whether you are a risk manager, insurance professional, or attorney, the ability to evaluate and in turn “value” a case is one of the most important skills to master in litigation. The many different evaluation techniques can seem overwhelming – ranging from detailed formulas to gut instinct. Therefore, this course will provide you with a unique opportunity to hear from a roundtable of experts about their evaluation techniques applied to different case scenarios. They will help you answer that all important question used to set reserves, determine a settlement value at mediation, and ultimately decide whether a case will be tried.

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Insurance Exposures and strategies for 2010

Current market conditions and out of control circumstances have impacted the insurance industry in a number of unexpected ways. Organizations must be diligent in learning how to manage new challenges, expectations and exposures to loss as we navigate our way through the recession. The panel will present three case studies reviewing high risk exposures in today’s volatile market and best practices to respond to each. The hot topics include:

HOT TOPICS:

1. Coordinated asset protection for the corporate response to disaster
2. Identifying and managing workers’ compensation fraud in the current economy.

Growing Green Insurance- as environmental concerns grow so does the need for green coverage

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Keeping The Lid On Litigation Costs: Strategies That Work

The roundtable discussion will focus on strategies that defense counsel, working with insurance industry representatives and outside consultants, have used successfully to keep the lid on litigation costs. Such strategies that will be explored include early assessment of cases for possible settlement; aggressive use of motions to dismiss on such grounds as lack of personal jurisdiction, forum non-conveniens, lack of venue and the like; staffing approaches to cases; and co-sharing and joint defense agreements among co-defendants.

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Managing Litigation – a corporate approach

The Commercial Litigation Committee is leading a groundbreaking project to develop a “Managing Litigation Reference Model.” The Model is designed to provide a practical and flexible framework to (a) guide organizations in managing litigation more efficiently and effectively; (b) enhance litigation management knowledge and skills; and (c) promote implementation of continuous improvement processes. We have identified and organized into groups / phases Key Elements that span effective litigation management practices from A to Z. The discussion Moderator will present the Model to all participants and guide discussion relating to six (6) different case studies. Case study presenters will explain how their companies approach efficient litigation management relating to different elements of the Model, with focus on increasing value of litigation services, enhancing operational efficiency, reducing costs and/or improving cooperation in the defense relationship.

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Managing Long-Tail Liability Litigation – Risks and Strategies

Subtopics include: (a) accessing historical insurance coverage and insurer support; (b) legal and practical issues in the company/insurer relationship; (c) strategies to mitigate litigation risk in the early stages and going forward; (d) investigation of claims - opportunities and obstacles. Presentation is conceived as panel discussion with Q&A to follow.

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Metrics Driven Mediation - When to Mediate and how to Measure its Success

Although almost every litigated case is mediated voluntarily or by court order, mediation should not be viewed as just part of the litigation cycle. Used effectively, mediation can significantly reduce costs and control risks. Developing and implementing a metrics-driven mediation program helps insurers, TPA’s and self-insureds maximize their defense dollar by identifying opportunities to reduce costs and risk, while evaluating the savings and effectiveness of their program.

The panel will discuss how metrics-driven mediation impacts the various stakeholders in the mediation process from the mediator’s and defense counsel’s perspectives, relative to the insurance company’s, TPA’s or self-insured’s mediation program. Case studies demonstrating how metrics are used within a mediation program to reduce mediation and litigation costs, and improve indemnity will be presented.

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Navigating the Bermuda Triangle: Ethical Issues Involved in the Tri-Partite Relationship

This roundtable discussion will focus on specific factual situations which commonly arise in the Tri-Partite relationship between the insurer, the insured, and the defense counsel. The panel will include representatives from the insurance company, defense counsel, and a corporate representative who will provide insight from their various viewpoints on the ethical issues and practical implications involved in insured litigation. Issues to be covered include case studies examining: (1) defending under a reservation of rights; (2) defending when damages may exceed coverage; and, (3) practical issues involving settlement of claims.

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Preventing and Defending Bad Faith Claims: Current Trends and Strategies

How insurers manage claims or coverage requests has become as important as determining whether there is coverage at all, and insurers increasingly are facing allegations of bad faith in interpreting insurance policies or in the manner in which claims are handled. In 2009, courts throughout the country rendered multiple opinions that further developed the law on the duty of good faith and fair dealing. In this session, panelists will examine those developments, in the context of three case studies, and will provide guidance on strategies to prevent and defend allegations of bad faith.

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Settlement Days and Private Mediations

The popular wisdom that mediation/settlement conference is a less expensive alternative to litigation is under attack from a variety of forces. Beginning January 1 the federal government became a vital player in a large percentage of personal injury and wrongful death litigation settlements. The information explosion continues to drive up the cost of discovery to the point where insurers and self-insureds are being forced to settle questionable claims solely due to the cost of litigation or to pay a premium for good claims of limited value solely to obtain resolution.

Three attorneys, all with a wide range of mediation experiences, an insurance executive and an executive from a Fortune 500 company will examine the challenges faced in this new environment and propose some solutions. They will discuss the criteria for early decision making as to the overall case strategy so that the objectives of the insurer, insured and self-insured are considered at the outset of the litigation and do not get swallowed up in the “heat of combat.” They will explore ways to coordinate the efforts of claims representatives and attorneys to economically gather and analyze the specific types of information that insurers and self-insureds need in order to make early and informed decisions. Finally, they will analyze a team approach to mediation/settlement conferences that will enhance the ability of the defense to exercise as much control as possible over the process and not just be the “checkbook.”

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Strategies for the Effective Handling of Complex Claims In Different Forums

This roundtable will compare and contrast effective methods of handling complex litigation in different forums. We will study the potential benefits and detriments to discovery, motion practice and trial of complex cases in Federal Court, the Commercial/Complex Division of various state courts and through the arbitration process under the different rules which are utilized for the resolution of those matters.

We have put together a distinguished panel of counsel with an impressive track record of dispute resolution in all three forums. We have also prepared interesting and proactive case studies in a wide array of cases designed to highlight effective and efficient legal strategies designed to increase the chance of victory in the various venues.

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Taming the E-Dragon: Controlling Costs, Avoiding Double Billing and Winning Fee Disputes for Duplicative E-Discovery in Litigation of All Sizes

The Roundtable will start with an overview of E-Discovery problems and costs followed by specific case studies and examples. The panel will then discuss solutions to e-discovery issues stressing cost control while also meeting the duties and obligations associated with successfully defending large scale nationwide/multidistrict litigation. Each panel member will discuss their experience with E-Discovery costs and problems, providing thoughts on lessons learned. During each of these discussions the floor will be opened for questions and contributions by the attendees.

One of the discussions will be in the form of a mock hearing in a legal fee dispute in which an insurance company claims that its law firm double-billed for repeatedly reviewing the same emails because it failed to consolidate duplicate emails and failed to group emails in conversation threads. Expert testimony at the hearing will rely on recent studies that found that considerable savings could be realized through duplicate consolidation and email threading. The failure to use these technologies also exposes clients to unnecessary legal fees and litigation risks of inconsistent review decisions on different copies of the same records. The participants will make their rulings via text messaging and the results will be analyzed in terms of the various ethical rules that are implicated, e.g. competency, not charging unreasonable fees, preserving confidential client information, and being honest with courts and opposing parties. Lastly, the floor will be opened for discussion of all of these issues with attendees giving their own examples, views and any and all other helpful information or asking questions.

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The Choice is Yours . . . Or is it? - Choice of Counsel Issues in Professional Liability Litigation

How is litigation management of a professional liability claim affected by choice of counsel issues. We will present three case studies for round-table discussion of the various forms of choice of counsel provisions in an insurance policy and how to address the issues that most often arise when selecting counsel to defend a professional liability claim. The round-table discussion will be lead by industry leaders in each of these segments: Insurance Claims, Insurance Brokers and Defense Counsel.

What participants will learn:

1. What different choice of counsel provisions are typically found in a professional liability insurance policy and how to interpret them;
2. How to manage the insured when the insurance company has choice of counsel and what to do differently when the insured has choice of counsel;
3. How does the management of the litigation change when the insured has chosen counsel and how can you address those issues;

When and how to offer the insured “independent counsel.”

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The Evidence Lifecycle Management Standard for Early Case Assessment and Beyond

Attorneys engaged in civil litigation understand the challenges inherent in eDiscovery: too little time to identify and preserve the relevant electronic data … too much reliance on employees to manually do all the work… and too many opportunities to miss crucial items among growing volumes of digital data. This program will show how Evidence Lifecycle Management now removes the risk of failure to properly identify and preserve vital electronic information at the outset of the case to companies involved in legal disputes.

This discussion will include the following topics:

• Emerging ‘Best Practice in Preservation, Collection, ECA’ efforts and how some organizations involved in litigation are using technology to accomplish these tasks, while minimizing workforce involvement.
• Evidence lifecycle process automation providing greater transparency and efficiency between corporate legal/IT and outside counsel
• Iterative ELM process for “Try vs. Settle” Decisions throughout each phase/step/task of discovery
• Descriptions of how leading companies are able to reduce their information stores as a byproduct of their ELM process

Recent court cases and other developments that illustrate these points.