Andrea M. Alonso and Kevin G. Faley

*Originally published in
November 2006

Proper preparation for the trial of an insurance case begins not when an attorney is retained, but when the insurance company has first notice of the loss. An insurance professional should simultaneously investigate the claim and preserve and collect evidence for trial. It is too late to begin trial preparation when the case is marked ready by the court. Precious evidence in the form of witnesses, documents, records, and products is not available years after the incident. Proper trial preparation should be triggered the moment a company learns of a potential lawsuit, and it continues throughout discovery and trial.

On Your Mark…

Before a summons and complaint are filed, a company receiving notice of a potential lawsuit should immediately hire an investigator to go to the scene of the accident or loss. He must be prepared to take photographs, interview witnesses, and secure evidence (at some insurance companies, investigators always are on-call for on-the-scene investigations). It is almost impossible to find and interview witnesses three years after an accident when the case is marked trial ready.

This time period clearly is the most crucial aspect of the case, but from a trial preparation point of view, it is especially important because the more diligent the claim professional is, the better the case will be prepared for trial. For instance, if photographs of the damaged vehicle or scene of the accident are not taken immediately, then the car may “disappear” or the roadway may be changed by the time of trial. Also, witnesses are more forthcoming and their memories are more accurate immediately after an event. A few solid hours of investigation at this stage is worth a 100 hours of trial preparation in the month before a trial.

Once the summons and complaint are received, the insurance carrier must make an informed choice by selecting appropriate outside counsel. Each case should be assigned not by random rotation, but rather by attempting to match the case to the lawyer or law firm. The lawyer’s experiences with similar cases as well as his reputation in a particular venue are important considerations. The potential exposure in the case also is a critical factor that should be weighed.

Get Set…

In most states, plaintiffs must file a statement of readiness, which indicated to the court that they are ready to proceed to trial. This document, sometimes called a note of issue, may trigger some important time limits that vary from state to state. For example, the time to demand a jury, the time to strike a case from the calendar for failure to provide discovery, or the time to move for summary judgment are all ties to the filing of a note of issue.

When a statement of trial readiness is served, the insurance company should receive a full pre-trial report analysis from trial counsel. It should contain an evaluation of liability and monetary damages as well as the counsel’s recommendation as to whether the case should be tried or settled. Defense counsel also must review his file to determine whether all discovery is complete. Pre-trial depositions must have been held and all transcripts must be reviewed, notarized, exchanged with plaintiff, and summarized to the insurance company. Each transcript should be re-evaluated with sections highlighted for possible use at a trial to cross-examine a witness.

A complete exchange of all medical records, hospital records and narrative medical reports also must be accomplished. All appropriate HIPAA authorizations must have been supplied by the plaintiff and expert opinions on liability must have been properly exchanged.

Original photographs have to be obtained from plaintiff’s counsel. Plaintiff is under an obligation to exchange names and addresses of witnesses, so the defense counsel should attempt to obtain statements of these witnesses and, if the witness is favorable, have the witnesses deposed to guard against the event that they leave the jurisdiction.

 All police reports previously exchanged must be obtained and a criminal check should be run on the plaintiff. Often, this search reveals information that may be used to cross-examine the plaintiff. If the plaintiff has prior accidents or lawsuits, the physicians who previously treated the plaintiff should be contacted. They can be subpoenaed at the time of trial and made to testify. Prior defense counsel on previous lawsuits can provide a wealth of information on the plaintiff and are usually more than happy to cooperate with fellow defense counsel.

Defense counsel also should make a thorough check of his file to ascertain whether a complete exchange of the discovery materials has been made with the plaintiff. Failure to exchange materials may result in preclusion, which means the evidence that was not exchanged with the plaintiff’s counsel cannot be offered at trial. The result of this is often disastrous.

All physical reports must be exchanged along with proof that proper exchange has been made. Similarly, liability experts’ information must be exchanged according to different court rules. If the defendant has obtained an expert, great care must be given to ensure that he has reviewed all relevant records. If he has not, this could be used against him during cross-examination at trial.

 Any photos, charts, experts, and x-rays also must be exchanged or preclusion will result. Defendants must obtain all insurance information and appropriate disclosure of all policies, including excess, must be provided to the plaintiff. Both the primary and excess carrier must be notified of all relevant trial dates and reports supplied.


Once the defense file has been combed through as described above, the real work of trial preparation can begin. First, a good trial lawyer exchanges his business phone number, cell phone number, and even his home phone number to the insurance company representatives before trial begins. Trial developments do not always occur on a nine-to-five schedule; contact between the trial lawyer and the company is essential to achieving a good result at trial.

Trials have their ups and downs. If a witness gives damaging testimony, this low point for the plaintiff may be the time to proffer an offer of settlement. These important turns of events should be reported to the company immediately.

A trial-preparation firm must be retained as soon as a trial date is set. Subpoenas for medical records, police records, and non-party witnesses must be served. The “prep person” must ascertain well in advance of the actual trial date the availability of the insured to determine his present whereabouts and upcoming dates for availability at trial.

Consideration must be given to charts, diagrams, or blowups of crucial photographs that must be made for presentation to the jury. As the proverb aptly states, “One picture is worth a 1,000 words.”

All experts, including liability and medical experts, must be contacted early to determine any scheduling conflicts or vacation dates. In some cases, experts are deceased and must be replaced as soon as possible before trial. Police testimony is often impressive to the jury, too, but their complicated lives require that they be advised of the trial date as soon as possible and their appearances secured.

It bears noting that often the “prep person” must go through great lengths to actually pick up and bring witnesses to trial. A good trial lawyer never loses a witness because of his failure to ensure his appearance. The resulting missing witness charge will potentially damage the defense of the matter. There is no excuse for failure to produce the party to the action or a crucial expert.

The defendant’s primary witnesses must be prepared weeks before trial and then refreshed immediately prior to trial. Good preparation of witnesses is the key to trial success; merely reviewing depositions is not sufficient. In some cases, a mock-trial scenario where witnesses are questioned by a fictional plaintiff’s attorney is extremely useful. Proper witness preparation does not occur in the hallway of the courthouse.

Reaching the Finish Line

The claim professional has an obligation to review his file and determine whether materials for use at trial (original statements, tax returns, photographs) also are in defense counsel’s legal file. Also crucial to trial preparation is a written monetary evaluation by counsel. This is necessary to determine if the case is properly and formally reserved.

Contact with superiors – whether in the branch office or home office – must be made according to company guidelines. If a roundtable or committee discussion is necessary, the pre-trial phase is the ideal time to calmly and knowledgeably engage in one. First-time conference calls with the home office on the eve of trial or during trial are not as effective as they should be. The imminency of trial at times can cloud the judgment needed to resolve a case appropriately. This also is an opportune time for a visit to the company by trial counsel in person in order to discuss trial strategies and tactics. A good law firm should be prepared to travel to a company’s headquarters and discuss the trial road map.

Other times, attorneys can leave the legal preparation for trial to the last minute. The pre-trial phase is when all legal research should be completed and memorandums of law written. If the trial attorney anticipates certain legal issues, such as conflicts of laws, evidentiary issues, or motions in limine that will come up at trial, the brief should be written and typed before trial. This enables the trial attorney to tell the judge during the open-court discussions, “Judge, may I submit this memorandum of law in support of my motion?”

Similarly, a prospective charge to the jury must be prepared long before the case goes to trial. Statistics tell us that 90-95 percent of trial-court errors are found in the jury charge. Although the charge may be altered, it should be anticipated, researched, and typed long before the trial date. The same applies to the preparation of the jury verdict sheet, which may be artfully worded by defense counsel to achieve a favorable verdict.

Avoiding False Starts

Simply because a case is marked for trial does not mean it cannot be settled. The threat of trial is a good instrument to steer plaintiff to voluntary mediation of a case. Parties can, with or without the assistance of a mediator, sit down and discuss the case for possible settlement. The most effective mediations seem to occur when a company’s representative is present. The presence of the “money man” from the insurance company seems to indicate to the plaintiff that the company is serious about settlement and that this may be the best offer he can expect to receive.

Prior to commencement of a trial, the defense should consider putting a “high-low” agreement in place, if the company agrees. This would guarantee the plaintiff a low number if a defense verdict occurs but puts a cap on a high number if the plaintiff is awarded a runaway verdict. Insurance companies should consider putting one in place at the start of a trial, but even during jury deliberation is still a time to consider a high-low agreement.

In all, the formulation of trial strategy should begin the moment one learns of the possible existence of a lawsuit and the trial should always be present in the mind of the claim professional and defense counsel. A case should not be handled with the thought that it will be settled but rather with the thought that it may proceed to a full jury trial. By the time a case is marked ready for trial, it may be too late to do a thorough and winning preparation.