Over the course of more than 30 years, I’ve encountered some “interesting” observations from the bench, including the following:   ..read more

Welcome to my fourth annual survey of important decisions not reported in leading insurance blogs. These decisions may fly below the ..read more

                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.           ..read more

                As an expert most frequently engaged on the topic of insurance coverage and bad faith claims, I recognize that I’m an added cost factor.  Thus, I never forget the need as an expert to add value along with the primary deliverable of a prompt, objective, and admissible report.  Below are facets of an expert’s engagement that in my experience add value beyond the eight corners of the expert report. 1.            Insights from expert’s kno ..read more

           This is my third annual survey of important decisions not reported in leading insurance blogs. These decisions may fly below the radar because they address procedural or interpretational issues which, while often the building blocks of a winning brief, aren’t click bait (though they should be).  Here are my top five for 2023: 1.         Post-litigation evidence discoverable in bad faith case                  &n ..read more

Does it seem like every guide to effective brief writing repeats the same ideas? “Be succinct, employ simple verbiage, avoid legalisms,” etc. Well, first and foremost, we’ve all heard these tips and advice ad infinitum and, needless to say, would no more breach or contravene such prescriptions for literary virtuosity than we would fail to agree that prolixity is communis hostis omnium! So with that understanding, I offer a few suggestions which are not so commonly repeated. i. The kitchen sink. Yes, you should limit the brief to your one or two best arguments when you are sure the Court will ..read more

In commercial mediation, parties may reach a point at which the gap between the latest offer and demand has narrowed to within a relatively close range, but the parties display reluctance to make any further substantial moves as part of traditional (incremental) settlement negotiation. In these circumstances, the judicious use of the Double-blind Offer Method has, in my experience, frequently been effective at bridging this gap. Explanation of the “Double-Blind Offer Method” A mediator employing the Double-blind Offer Method should obtain the parties’ informed and explicit agreement to engage ..read more

When I began participating in mediations thirty years ago, it was customary for the adverse parties to meet, to shake hands (remember that?), and then for each side to present what amounted to a brief or sometimes extended “opening statement.” The attorney for each side would lay out the case, and this might be followed by an alternating series of rebuttal arguments which would either exhaust themselves after two or three rounds or which would cease upon the mediator’s admonition about “diminishing returns.” This manner of beginning a mediation session has had no shortage of detractors. Most c ..read more

Having participated in mediations for thirty years, as mediator or legal counsel, I have of course had a number of unsatisfactory experiences. Some mediators lacked expertise in insurance coverage. This hindered them from optimally relaying the parties' positions to one another, and prevented them from serving as an informed evaluator. Often these mediators limited themselves to shuttling between breakout rooms merely to relay dollar figures. Some mediators (one of whom bragged of handling five mediations the week during which mine was scheduled) evidently were too busy to familiarize themselv ..read more

Even experienced insurance coverage attorneys can make a number of potentially fatal errors when reading insurance policies for the purpose of advising their client or litigating an insurance dispute. Seven of the more common, and dangerous, mistakes are the following: 1. Forgetting to compare your copy of the policy to the Schedule of Forms and Endorsements. It’s not uncommon for the copy of the policy supplied to us by the insurer or our client to be incomplete or to contain provisions that were not intended to be part of the policy. Thus, the coverage lawyer’s first task is to pull out the ..read more