Tips for Young Lawyers

Tips for Young Lawyers

Representing Policyholders in Litigation Against their Insurance Company:  How to gain control of the litigation through written discovery.
By:  Andrew Taylor

For the last five years, I have been the head of litigation discovery at the Mostyn Law Firm. We’ve represented thousands of policyholders in lawsuits against insurance companies for benefits under their insurance policy. My focus has been primarily on the Texas Windstorm Insurance Association Hurricane Ike docket and the State Farm docket.  Be advised, if you decide to take on a case against an insurance company, you should know that it will be a difficult journey. Your opponent will likely be a multi-billion dollar insurance company with a fleet of top-level law firms at its disposal. I constantly go up against partners at big defense firms who have more than 30 years of experience practicing law. They can smell weakness and will try to use it to their advantage (as they should). The insurance company has all of the information, notes, pictures and files that are related to your client’s claim.  You will be lucky if you know even 10% of the information about the actual handling of the client’s claim when they initially come into your office. With all of this being said, there are ways that you can even the playing field by following some basic discovery tips. 

Sending Written Discovery:
When done the right way, discovery can add settlement value to your case. How badly does the insurance company want to withhold a document from production or a corporate representative for deposition? What is it worth to them? My other goal in conducting discovery is to obtain evidence that I can use at trial to prove my claims. I need to know the defendant’s position regarding the handling of my client’s claim.

The purpose of this article is to give you a general road map that I have used in my cases against insurance companies.  It by no means is the only way to conduct discovery for these cases, it is just what I have found to be most successful in the thousands of cases that I have handled.  As I mentioned before, the insurance company has all of the information about your client’s claim.  They aren’t going to just hand it over voluntarily; it’s up to you to fight for it.  

I prefer to send at least some discovery attached to my petition. The most important request you must send in these cases is one requesting all documents related to the claim/property/insured.  The reason you don’t just ask for the claim file is that you have no idea what that insurance company refers to as the claim file. By asking for all non-privileged documents related to the claim/property/insured you have a much lower chance of missing some relevant document that you didn’t ask for by the correct name. The last thing you want is for the other side to have more information about your claim than you do because you didn’t ask for it properly. 

Start with the pattern jury charge for your claims.  It is crucial for a plaintiff in a first-party insurance case to know exactly what the insurance company's position is regarding certain issues in the case.  Do they believe your client did something wrong? Does the insurance company have evidence supporting its position that it handled the claim reasonably?  You want it to take this position as early as possible in the litigation.  One way to accomplish this is to send request for admissions, asking the insurance company to admit certain things that you need to prove your case at trial.  However you decide to pin down the insurance company on its positions on your client’s claim, be sure to do it sooner than later.

Simple rule to follow when drafting your requests:
Before you send out your discovery, take some time to make sure each one is being sent for a particular reason.  Picture yourself in front of the judge in 45 days arguing your motion to compel. Can you come up with an argument for why you are sending each request or interrogatory? Will you be able to tell the judge exactly why the information you are requesting is going help prove any of your claims? Be honest; the judge will know the difference. 

What to do when you receive defendant’s responses:
I promise that you will see at least two things in every set of discovery responses from an insurance company: objections and redactions. The defendant will also likely assert that some of the information you have requested is confidential or proprietary in nature. The rules of civil procedure (federal and state) are on your side; use them often.  The remainder of this article will focus on the steps that I take once I receive answers and responses from a defendant.

Send a pre-compel letter: 
You must force the insurance company to support its objections to your requests.  If you are dealing with an undue-burden objection you must find out what exactly the defendant did, when it received the request, to make this determination.  The pre-compel letter also gives you a chance to look reasonable.  If one of your requests was for five years of training materials and you can live with only three years then put that in the letter. Looking like the only reasonable party is always beneficial down at the courthouse.

If the defendant has objected to disclosing confidential or proprietary information, you should attach a proposed protective order to the pre-compel letter.  Trust me, you want to get the motion to compel and motion for entry of protective order heard at the same time. It will speed up the process exponentially, which is what you should always strive for.

If the defendant produced documents with redactions, you need to ask for a privilege log, under the rules of civil procedure, which lists the individual privileges being asserted as well as a description of the information being withheld.  Once again, it is crucial that you have done everything in your power to make sure the company doesn't have more information about your claim than you do. Ideally, you will have defendant’s version of the “complete” privilege log before filing your motion to compel so that you can also object to any assertion of privilege you don’t agree with.  The rules of civil procedure are on your side here.

If documents, such as a claim log or activity log, have been produced, you must do a thorough search for completeness. For example, if the claim log indicates that an email was sent from adjuster to manager on November 11 about the claim, that e-mail better be somewhere in the production.  Good thing you sent the request for all non-privileged documents related to the claim/property/insured that I mentioned earlier in the article.  Catching the insurance company with its hand in the cookie jar on something like this is what I love the most about discovery in these cases.  Now you should compel a response to this request and bring this example to the judge’s attention. 

Don’t forget to set out a reasonable deadline for the defendant to comply before you will be filing a motion to compel. The pre-compel letter should be followed up with emails and letters to opposing counsel regarding the outstanding issues. Once the deadline for defendant to comply has passed, file your motion to compel and set for earliest hearing you can get.  Also, you should make sure that you have clean hands when you finally get in front of the judge on your compel.  You don’t want to be bashing the defendant for boilerplate objections when your responses are just as bad.

Motion to Compel:
Getting your motion on file is imperative.  My only advice for the substance of your motion to compel is to try to focus on the handful of your requests that you are fairly confident the judge will give you based on your argument, the facts of the case, and your claims.  Don’t get greedy.  Be willing to cooperate and accommodate if necessary. For example, if the judge is a little uneasy about striking defendant’s undue-burden objections you may suggest that defendant put up a corporate representative to testify on the issue of what defendant did when they received the request in order to conclude it was burdensome. This will give the judge an out and make you look reasonable.   

Motion for Entry of Protective Order and Motion Objecting to Assertion of Privileges:
If you are dealing with an insurance company that is finicky about its training materials falling into the hands of a competitor, you will need to get a protective order. The language in the protective order could take up an entire separate article. The bottom line is that if you want to get documents from the insurance company sometime this millennium, you will need to agree to a protective order. I prefer to have one with a shared discovery clause (look it up). At a minimum, I require a clause that gives me the ability to challenge a document's designation as confidential.  If the defendant wants to have a hearing to support its confidential designation, it will need to do so within 20 days of my challenge or the document is no longer confidential.  Regardless, get the protective order handled early.

If there are still unresolved issues regarding defendant’s privilege log or for that matter, the privileges they have asserted, that should also be brought up at the hearing. Force the defendant to support their privileges if you have a feeling that something isn’t right.  Once again, the rules are helpful here.

After the compel hearing:
Obtain a transcript of the hearing. Anything ordered by the judge on the record carries the same weight as a written order. That being said, you will more than likely have to hound defense counsel to comply with these orders.  In my experience, defendants in these cases will force you to file a motion to enforce the Court’s order before they will actually comply.  The only thing you can do to speed this process up is to stay on top of them.  Set hearings and put the issue in front of the judge.

Staying on the offensive in your case against an insurance company is critical, regardless of whether you represent one or one hundred policyholders.  In my experience, the best way to do this is by conducting smart, effective discovery.  If the defense attorney wants to sit and have lunch to talk about your discovery requests, tell her that you would love to but not until after your compel hearing. Feel free to contact me at if you ever have any questions.

--ANDREW TAYLOR is a graduate of South Texas College of Law. He has been employed with The Mostyn Law Firm since 2009. During this time, Mr. Taylor has handled thousands of first-party litigation cases against insurance companies. In his first jury trial last summer, he obtained a verdict for his clients in a Hurricane Ike case against one of the largest insurance companies in the United States.