Help Us Help You: Proposed Business Guidelines from Defense Counsel

Jones, Skelton & Hochuli, P.L.C.

Throughout my 34 years of practicing law in Arizona with Jones, Skelton & Hochuli, I have seen numerous changes in court rules and procedures, client development and marketing, defense strategies and philosophies, case management procedures, and client litigation guidelines and billing practices. Many changes have improved the practice of law, while others may have been more detrimental than beneficial. When I began practicing law in 1984, there were no fax machines or computers, much less mobile phones, emails, the Internet, tele-video conferencing and electronic filings. Clients rarely, if ever, developed and utilized litigation/business guidelines, and for the few clients who did, the guidelines were brief. Today, clients and companies each maintain their own set of comprehensive guidelines that delineate reporting and case management requirements, billing “dos and don’ts,” and tasks and activities that are no longer billable.

Using today’s litigation and business guidelines as a framework for this article, I will propose another set of guidelines that can not only be applied in attorney-client relationships, but also in our communications and relationships with adverse claimants/counsel, witnesses, vendors and experts. In fact, some of these guidelines may be practiced outside of the business context and in our personal lives. You will find that several of the following proposed guidelines are not new; many were the standard and expected way of doing business in years past, but have somehow gone out of mode in today’s business culture. This article endeavors to remind readers of the importance of considering and embracing some of the business practices of long ago (or at least before email and mobile phones dominated our lives).

Don’t Underestimate the Value of a Phone Call.

I still believe more can be accomplished in less time via personal phone conversations than most other means of communications. The problem, however, is that it can be difficult to connect by phone given the demanding schedules of all those involved. Nevertheless, phone calls allow for the spontaneous exchange of information, feedback, discussion and decision-making. I have found there are fewer misunderstandings as a result of a personal phone call. Phone calls also allow for human contact, light-hearted discussions, and a better understanding of a person’s true feelings and perspective (spontaneous response, voice tone and inflection, etc.).

Although some may feel they are more candid/direct/brave in email than in a phone call, emails can easily be ignored, and their intention often misconstrued – whether negative or positive, intentional or accidental. It is much more difficult to ignore, delete, or completely forget the contents of a candid phone conversation.

Don’t Rely too Heavily on Email Communications.

Without question, email communications are necessary in today’s fast-paced, mobile and global business climate. Emails are expedient and provide written documentation of important communications. But, emails have shortcomings. In particular, emails can create unrealistic expectations. Sending an email is easy; it’s convenient for the sender. But simply because an email is sent does not mean the recipient actually reviews and comprehends the message. The recipient still opens, reviews and analyzes the email on his/her own schedule, which may not match the sender’s expectations. Consider the recipient who receives 100 or more emails daily. Depending on the recipient’s schedule and other demands, they may not have the opportunity to review and respond the same or even next day. There are still only 24 hours in a day. All too often, we expect expedient responses to our emails simply because we hit “send,” regardless of what may be consuming the time and attention of the recipient. It is also important to remember that, generally speaking, it’s easier to send an email than it is to respond to an email, particularly if the email requests an analysis or responses to multiple questions.

Provide Complete and Correct Information.

The more information I can provide to someone that enables them to respond promptly and accurately, the better off I am. For example, when I am sending an email, I make sure to provide a claim number/matter or case name, the name of at least one party, the date of loss, and my complete contact information (email address, phone number, etc.). If the email recipient has to spend any time looking up pertinent information such as this, my email will likely be placed lower on their “to-do list.” Never should the recipient need to devote time looking up basic information such as my phone number, names of parties, etc. If there is a particular witness I want contacted, I will provide the name of that witness and the witness’s contact information, to the extent I have it. Additionally, I usually make it clear at the beginning and end of the email the information I seek. The less work the recipient has to do to answer the question or accomplish the task, the more likely it will be done promptly.

Be Respectful of Other’s Time and Commitments.

Regardless of whether you choose to send an email or make a phone call, always be mindful of the information you seek and the task you are requesting from the other person. In particular, be cognizant of how much time that task may take and what the person may have to do to complete the task. While I would like to believe that I am always top priority for opposing counsel and/or experts, that is simply not the case. They, too, have other matters – professional and personal – that require their attention. Rarely has someone chartered their day with my timetable top of mind. Consequently, it is important to allow the other person a reasonable amount of time to respond and complete the requested task. Work demands ebb and flow daily, weekly and monthly, and when someone responds to me promptly, it is usually because they have rearranged their priorities and schedule out of courtesy to me, not because they had nothing else to do.

Don’t Forget to Say Thank You.

It costs nothing to say “thank you,” and yet the dividends it pays are enormous. Those two words tell the recipient you recognize what he/she has done, and that you appreciate his/her effort. We have all been in a situation where we have done something – even if it’s our job to do it – and not received a simple “ thank you” for completing an activity/task. Saying “thanks” (and meaning it) fosters a positive working relationship, and will likely lead to future requests being handled expediently and happily.

Don’t Over Promise and Under Deliver.

While we all want to put our best foot forward, covering up our mistakes and shortcomings is never productive. I have found that being candid about my shortcomings and limitations serves everyone best. It avoids falling deeper into a hole. People have varying talents and skillsets, and I have yet to meet the person who has not made a mistake or likewise has made the correct decision every time. Though we expect ourselves and other professionals to be polished and skilled, we must also recognize that we are still human.

While I may not be labeled an optimist, I make sincere attempts to look on the lighter, brighter and humorous side of things. If I can find something in a situation to make me laugh, or someone else can point out something humorous about the situation, it helps maintain proper perspective.

Help Others Maintain Important Business Relationships.

In the legal profession, insurers and lawyers rely upon experts, reinsurers, vendors, mediators, etc. We cannot forget to facilitate and foster those relationships. This includes respecting and honoring requests for information, carefully considering their suggestions, and ensuring that invoices are paid in a timely fashion. As defense counsel, we encounter mediators, judges and experts many times over, and it is crucial that we deal with them honestly, respectfully and timely. Losing the availability, support and respect of a mediator, expert, court reporter or vendor makes future exchanges far more difficult.

Set Purposeful Deadlines and Be Flexible When Necessary.

Counsel understand that insurers must be kept informed of the progress of a case and the importance of early evaluation. However, form should not take the place of substance. Attorneys should be reporting to clients when meaningful and valuable information becomes known, not simply reporting for the sake of doing so. In Arizona, cases are placed on a case management plan/scheduling order. Parties are given timelines to complete certain tasks, activities and discovery. Layering additional deadlines on top of Court deadlines, particularly if they are inconsistent with Court deadlines, are unnecessary.

Litigation is a fluid and dynamic process. Even the best made plans may need adjustment to accommodate scheduling conflicts, witness unavailability, and unexpected professional and personal events. These happen to everyone, not just ourselves.

Be a Problem Solver, not a Problem Generator.

Before I take action or make a request, I ask myself whether the actions and requests are designed to resolve an issue, advance a meaningful purpose, or whether they are simply generating additional indiscriminate issues and problems. Hopefully, the measures we take in working with others is to move things in a positive, forward direction that leads to resolution.

Simple Nuts, Bolts and Screws to Tighten.

Not to be forgotten are some practical investigative tips that help defense counsel help you and your insured in defending the case. Failure to recognize these important tips can lead to difficulties in building a defense, or fighting allegations of spoliation.

  1. Obtain and preserve photos/video-recordings of the incident/crash site/accident scene. Many times, the parties involved and witnesses to the incident have recorded videos and photos on their mobile phones. They also have text messages they sent or received concerning the event. Get them!
  2. Be sure to preserve the actual item or object at issue – the chair, tool, equipment, bottle, pipe, tire, etc. – even if you have 50 photos of the object. The insured or claimant – whoever has possession of the item – should immediately be told not to discard the item in question.
  3. Take photos, then take more photos. You can never capture too many photos of the incident, scene and vehicles in question, only too few. And preserve the photos in original JPG or MPEG format. PDF format is too difficult for experts to work with.
  4. Be sure to obtain and share correct and complete contact information of the insured and known witnesses – names, email addresses, mobile phone numbers, physical addresses.
  5. Preserve the actual audio-recorded statement of any witness and party, even if the statement has been transcribed or summarized. This is particularly true of a witness and claimant. It is nearly impossible to deny making a statement when it can be readily played back.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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