Business owners should select their litigation counsel with the same care that they would use in selecting a physician for their personal health needs. The key criteria in selection are: (1) quality of legal education (i.e., top-10 law schools); (2) extent of trial experience (i.e., dozens of prior trials), and (3) depth of relevant experience (i.e., insurance issues). The most overlooked criterion is the lawyer’s knowledge of the interplay between litigation and insurance. Approximately 90% of litigation in the U.S. is funded by insurance, such as general liability insurance, employment practices insurance, or “rep & warranty” insurance.
When a business is hit with lawsuit, such as a suit by an employee for wrongful termination or sexual harassment, it is vital to determine if any available insurance may provide a defense to the suit. If a defense is denied, insurance counsel should be consulted as to whether to bring an action against the insurance company to force it to provide a defense. Likewise, in the course of considering settlement, insurance counsel should be retained to pressure the insurance company to settle the case within policy limits.