A Nice Thing To Do

The personal touch. We hear about it all of the time, but what exactly is it? The question is particularly pertinent when one practices disability income insurance law.

A recent post by Dr. Len Schwartz on the Pro2Pro Network, reminded us of the little things we can do as lawyers to make our clients feel better about us and for them to have more confidence in how we handle their matters.

Dr. Schwartz, who has a wealth of ideas for how small businesses and professional practices can raise their “notice” factor, suggested to his followers that they make a first visit nighttime call to a new patient or client, asking if he could enlarge on or clarify any material they had discussed earlier that day.

He pointed out such calls would have two primary effects:

One effect would be to stimulate word of mouth about you. (After all, who ever heard of a lawyer taking the time to be certain a new client understands what is going on?)

The second effect would be an opportunity to get the relationship off to a great start. It would pump up the relationship and give the lawyer an opportunity to greatly improve the connection with this client.

The suggestion by Dr. Schwartz reminded us of the rare experiences we have had with doctors and dentists who had the interest and courtesy to call us the evening after
a painful or long procedure to ask us how we were doing.

Just the thought that this professional, who is very busy, took the time after a long and busy day to inquire about how we were feeling, put that professional head and shoulders above the others. The doctor took the time to call, ergo, he or she really cares!

This resonated with us on two levels. The first was that lawyers don’t do this with long-time clients, let alone new ones, even when they have discussed a complicated legal question during the day’s visit. From our own experience, it struck us, on reflection, that no matter how well we thought we understood the topic of discussion, when given time to think about it, further questions came to mind.

We all have had unpleasant medical or dental experiences. Sometimes, though rarely, a dentist or doctor will call in the evening of such an experience to ask how we are doing. When that happens, the rough edges of the day’s experience start to smooth and we have a warmer feeling toward the doctor or dentist who calls. We think- he or she cares and wants to help.
Why shouldn’t the same apply to lawyers? Our work doesn’t usually deal in physical pain. But, most of the time there is a load of mental pain and anguish for our clients. Why wouldn’t our call to a new client or an older one after a conference, with an offer to clarify any questions they might have, have the same value to that client?

Attorneys should develop this personal touch. When they hear the gratitude of clients for taking the extra time to try to help, it will make them feel better about what they do and how they do it.

If an attorney needs more reason to make that call, the lawyer can be sure the client will talk to others about the call. And, that can’t hurt.

However, there is one caveat: Make certain the client knows you are NOT billing them for your time on the call!


End "American Rule" Injustice

A recent editorial in the New Jersey Law Journal (7/13/09) reignited a fire in us about how insurance companies play hard ball with their policyholders because litigation wears down the hardest claimant and leads to settlements totally advantageous to the insurance company.

As a result of this hard ball policy, insurers get another advantage – policyholders usually have to pay their own attorney’s fees and legal costs (many times, considerable) even when the courts find their claim was absolutely justified.

The genesis of the problem is the “American Rule” which requires each party in a contract action to bear his or her own legal expenses. This rule is the law in most States, except where they have been modified by statute or court rule.

In New Jersey, R. 4:42-9(a)(6) permits the award of attorney fees to a litigant for being forced to pursue a third-party claim against their insurer. The New Jersey Law Journal editorial decried the distinction made by the court rule which allows policyholders to collect their legal fees from the insurer if the company wrongfully refuses to defend them against third parties, but not if their insurer wrongfully refuses to pay the policyholder in a direct claim, under an individual disability policy, for example.

From years and years of practice in pursuing disability income insurance carriers, both ERISA and private, we have come to understand that with many insurance companies, obfuscation and delay are primary strategies because these companies know that many litigants will become discouraged and either drop their claims or accept a lot less than they deserve under the terms of their policies, simply because they cannot afford the enormous cost of litigation.

The worst part is that because of the American Rule, there is no downside for insurance companies. Under the Rule they do not have to pay the policyholder’s legal fees and costs, even when they are wrong, so the insurers “song and dance” their way through litigation, all to their benefit and to the heartache and loss of their policyholders.

On the policyholder’s side, there is a definite downside to the insurer’s recalcitrance. If the insurer pushes the “NO” button, even on an open and shut claim, when the policyholder wins, the policyholder still loses because the attorney fees and legal costs, which must be paid by the policyholder, substantially reduce the net value of the judgment won.

When an industry uses the American Rule as a defensive tactic to impair the rights of policyholders who have been paying premiums for years, it is time the Rule is held not to apply to insurance companies.

If insurers decide to dispute a claim, they are much less likely to do so when the claimant is likely to prevail, if they are required to pay attorney fees and costs when they lose. Such a rule would give them pause in many cases in which they have no real defense , but defend anyway to see if they can discourage the claimant and because they have nothing to lose. The entire burden of such defense is put on the insured.

Effectively, contrary to the very idea of insurance itself, this Rule allows the insurer to shift a substantial (and in many cases, crippling) part of the risk of loss back to the insured, even though the insurer has been collecting premiums for years, to assume the entire risk.

With nothing to lose, insurance companies use denials without fear (and, in many cases, without conscience) all to the detriment of the policy buying public.

This injustice should end now.




Kudos to Kathleen

Most plaintiffs’ disability income insurance lawyers are aware of the heightened emotional and psychological needs of their clients – up to a point. Our Kathleen takes up whatever slack our clients miss in the way we communicate with them.

Although attorneys in the disability field know that their clients are usually in pain, economically behind the 8-ball and aching for some one to talk to them about all aspects of their case, attorneys are not always able to spend all of the time on the phone some clients think they require.

That’s where Our Kathleen comes in. She is a paralegal who is knowledgeable about the factual requirements of properly pursuing a disability income claim. But more than that, she seems to have a natural empathy about the human needs of the people filing such claims. And, she makes the time to talk to clients and prospective clients who call our office and need a “listener” who cares, shares and wants to help.

Every attorney in plaintiffs’ disability insurance work would do well to make sure they have an “Our Kathleen” on staff to alleviate some of the stress their clients are feeling as they pursue their claim under the most trying circumstances.

That’s if you can find another Kathleen.