I’m tired of hearing insurance defense lawyers described as devils: unethical, uncaring, evil, dedicated to destruction of valid claims and to refusing appropriate compensation for real injuries. I’ve been representing claimants in personal injury actions for more than forty years, and people who see insurance defense lawyers as devils just don’t understand the pressures they are under in the insurance claims process.
Unlike plaintiff attorneys, insurance defense attorneys don’t get to choose their clients. Our firm, which represents only plaintiffs, agrees to represent about one of every ten potential clients. These are cases of honest people who are seriously injured through no fault of their own. They are cases we can believe in. They are claimants we like. We get immense psychological rewards for helping out people who really need our help, putting their lives back together after an injury. Insurance defense lawyers don’t have that luxury. Most of them either work for an insurance company or for a law firm that is economically dependent on an insurance company. They don’t get to choose which people they represent.
Defense lawyers can get some joy, if you want to call it joy, from squashing the invalid claims of people who’ve convinced an inexperienced personal injury lawyer to take their case. However, most of those cases are handled by young insurance defense lawyers. Experienced insurance defense lawyers generally get stuck with cases involving significant damages where there is either clear liability or at least a well-founded liability dispute. They are stuck in a perpetual game of prevent defense, where success is preventing a runaway verdict or a settlement for more than the case is worth. When the verdict is in or the case is settled, the plaintiff lawyer, who is generally working on a contingency fee, has a payday and celebrates the victory with his vindicated client. The insurance defense lawyer just opens another file -- Sisyphus constantly re-rolling the rock up the hill.
And insurance defense lawyers aren’t all that well paid. They’re wage slaves. They work with an accountant from the insurance company constantly looking over their shoulder, arguing they should be charging less per hour and putting fewer hours into each case. When you’re billing by the hour, there is only so much income you can generate, because there are only so many hours in the day. It’s relatively easy for an insurance defense lawyer to earn an annual income in the low six digits. It’s very difficult to make much more unless he owns an insurance defense firm and hires lots of young associates to work for him, paying each of them slightly less than they are worth and billing the insurance company for slightly more than they are worth, collecting the difference in a massive pyramid. Although many young, inexperienced or part time plaintiffs’ lawyers make less than insurance defense counsel, most experienced plaintiffs lawyers make more -- and insurance defense lawyers tend to resent it.
So if insurance defense lawyers are over worked, under paid and stuck representing people they don’t like and wouldn’t ordinarily choose -- why do they do it? One answer is that not everybody gets their first choice. Many insurance defense lawyers, after gaining experience, change sides and become plaintiffs’ lawyers; others can’t make that switch. They don’t have the entrepreneurial skill to build a personal injury practice, which requires the lawyer at the end of every successful case to find a new client. Finding a new client means meeting people, connecting with them on a human level, instilling a level of trust and confidence, and winning their loyalty through the long process of building a personal injury claim. Many of the people who do insurance defense work lack either the ability or the willingness to make those personal connections, the foundation for a thriving plaintiffs’ practice.
What insurance defense lawyers get instead is security. They work in a firm they don’t have to manage, and they’re given a constant supply of negligent clients to defend. They are not evil; they’re just stuck in a system that gives them security in exchange for avoiding the stresses, particularly those stresses dealing with obtaining new clients that plaintiff lawyers have to face. Many of them accept their lot, willingly and happily, focusing their lives outside the law, on their families and friends.
Over time, the best of them understand the system they are in, and accept their role by working in a symbiotic relationship with plaintiffs’ lawyers to fairly resolve the claims they’ve been assigned to defend. In short, they are not devils; they have just opted to play defense in an adversarial process that forces injured parties to hire plaintiff lawyers to obtain their goal: prompt, fair compensation for injuries they have suffered at the hands of a negligent stranger.
How then should a plaintiff lawyer approach an insurance defense lawyer?
I usually begin by trying to distinguish myself from plaintiff’s lawyers who see insurance defense lawyers as evil. I try to avoid fights about the tort system, the relative merits of plaintiff’s claims in general, or which side of that fight lawyers should take. I want the lawyer to know that I am cooperative, easy to work with, and a problem solver, that together we will resolve the claim in a reasonable way, taking into account the horrible injuries my client has suffered. I explain, in a jocular way, “It is not my job to make your life miserable -- I’m just here for the money!” I don’t want this to be a fight to determine who is the best lawyer, who has the biggest spleen, or who is the most dominant. I accept the fact that the insurance defense lawyer is just doing his job, and encourage him to do that job well by providing him all the information he needs to fully evaluate the claim and make a recommendation to his superior based on the serious risk the insurer faces at trial. I want to do everything I can to make the insurance defense lawyer look good to his superiors when he settles the case for a considerable sum, more than most similar cases, but less than could have happened had the case proceeded to trial based on the facts I have so helpfully provided.
If, as I argue, the insurance defense lawyer is underpaid, overworked, stuck defending random claims he does not chose and in whose merits he has no personal stake, and if he is focused on maintaining his secure position within the insurance claims hierarchy, why should I pick a personal fight? Why not instead defuse the animosity that sometimes occurs between the plaintiff and defense bar, and instead concentrate on presenting the facts that will distinguish my client’s valid claim from the others on his desk, helping him avoid the embarrassment that would occur should he risk proceeding to trial on such a well-documented, compelling claim against a honest straightforward lawyer with an excellent track record at trial.
Who is going to get the best settlement from an insurance defense lawyer? The lawyer who treats him as an evil, uncaring devil trying to deny every plaintiff the recovery he deserves, or the lawyer who accepts him as a hard-working, fair lawyer trying to hold back payment to invalid claims while resolving valid claims (like my client’s) in a reasonable way?