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In bad faith insurance coverage litigation, experts commonly are retained to author an expert report and, if the case goes to trial, testify regarding industry practices and standards for appropriate claim handling. Many such experts were former in-house claim handlers, yet increasingly many experts are former outside litigators. Is one group preferable when you’re considering whom to retain? That depends upon a number of factors.
Experience
Assuming careers of roughly equal length, in-house claims handlers will invariably have handled multiples of the number of claims an outside litigator would encounter over a career in litigation. However, the litigator would very likely have worked with a much wider and more diverse number of insurers and therefore may be better positioned to opine regarding widespread accepted industry practices for proper claim handling than a claim handler who worked only for one or two insurers. Moreover, for larger and complex claims that required internal approvals at intermediate and upper levels of insurance companies the litigator might have obtained a better picture of how such claims are customarily handed by an insurer as a whole (from top to bottom).
Writing Quality
An experienced former litigator will, on average, be a superior writer. Lawyers are trained to carefully organize their thoughts, and to write clearly and with precision. Internal corporate communications, which for at least the last two decades often have been dominated by email chains and the occasional bullet-pointed memo, are less conducive to training a future expert how to draft a report that is detailed, comprehensive, and persuasive (while remaining objective).
Timeliness
While as a litigator, I rarely suffered from any expert missing a deadline for a report, attorney-experts were better at providing a draft at the earliest possible juncture. This is a result of training. The attorney’s corporate client often will have wanted to review a draft document far enough in advance of a deadline to allow for feedback and approval. Thus, an attorney will by habit view a June 20th deadline as a June 10th deadline, whereas within many (though not all) corporations a deadline represents the date by which a finished deliverable is due.
Credibility / Jury Presence
Aside from matters of personality and presentation, credibility may depend largely upon the nature of the expert’s experience. It certainly is wise to ask attorney-experts whether they have experience in participating in the actual claim determination process, or instead were usually not engaged until after the claim had been denied (once litigation had been commenced or threatened). I was fortunate to have been present at numerous internal roundtables and claim reviews, where the actual claim determinations were made, but many attorneys have not been afforded that opportunity.
In sum, because of the lawyer’s training and writing disciplines, a former litigator often can provide a superior over-all service as an expert witness. This may be particularly so if the litigator had first-hand involvement in the claim determination process for a large number of insurance companies and for a wide variety of claims. Remember, the expert likely will need to opine on general industry standards and practices – not merely the practices of one or two insurers.
