Letter to the Editor: The Evolution of the Defense Lawyer!

WDC Journal Edition: Summer 2012
By: Bernard T. McCartan, American Family Mutual Insurance Company

This letter is submitted in response to WDC President Mike Gill's President's Message entitled, "The Extinction of the Insurance Defense Lawyer?," which appeared in the Spring 2012 issue of the Wisconsin Civil Trial Journal.

I read with interest and appreciation Mike Gill’s most recent President’s Message: “The Extinction of the Insurance Defense Lawyer?” As Mike rightly observes, WDC is unique because of its history of full participation by both the in-house and private defense bar in the common effort to raise the quality of the defense practice in Wisconsin. Whether in private practice or employed in-house, at WDC we are all defense lawyers first. As such, WDC is an excellent example to national organizations such as DRI and its sister state defense organizations of the effectiveness of a fully inclusive professional organization.

I have spent 30 of my 35 years as a lawyer engaged in the in-house practice of insurance defense law. WDC has been a part of my professional life almost from the beginning. The opportunity to interact with and learn from professional colleagues through WDC has been invaluable to my professional development, and through the years I have attempted to reciprocate by actively participating in the organization. As a past board member and officer of WDC, I have had opportunities to attend meetings with representatives of sister organizations from other states. On those occasions, I have had first-hand experience with some of the things Mike described. I was, at times, left with the feeling that I was not entirely welcome once members from other states learned that I practiced in-house rather than in a firm. It was nothing personal. It was just that I wasn’t one of “them.” As an insurance company employee, I was a member of the group referred to as “they” in statements such as: “They look for any excuse to cut my bill,” or “They all have different billing requirements,” or “They won’t let me make a move without getting prior approval.”

I could not then and cannot now deny that their complaints have a basis in fact. The actions of corporate clients, insurance companies or otherwise, to which my colleagues take exception usually stem from attempts by non-lawyers to control a process they simply don’t understand. What Mike points out, and many in the private bar still fail to recognize, is that the companies are really not being arbitrary. They are responding to business necessity. They have to control costs to maintain or enhance competitive advantage, the failure of which in any business can be fatal.

So, what of Mike’s question? Is the private defense bar on the path to extinction? Mike concludes that it is not, and I agree. But that result is not a foregone conclusion for everyone. I am a third generation lawyer. The practice of law today is much different than when I started over 35 years ago, and even more different than when my father and grandfather practiced. What was done then will not work today. The lesson is simple and clear: The key to prospering in the future lies in the ability and willingness to change—in other words, to evolve. Survival will be achieved only by a conscious choice on the part of practitioners to embrace the change necessary to accommodate the relentless demands for operational and cost efficiency faced by businesses everywhere, and to do so without sacrificing professional quality.

In today’s business environment, customers constantly demand more value for their money. Price competition is fierce. To survive and grow, companies everywhere must constantly strive to be better, faster, and offer more value for the money than the competition. In turn, those companies must require the same effort of everyone from whom they obtain goods and services, including lawyers. Those defense lawyers, whether in-house or outside, who adopt that value-oriented focus and build it effectively into their practices are the ones with whom my company and others will want to partner in the future. Among other things, that includes recognition of the fact that, while time is a factor to be taken into account in determining the value of services, it is not necessarily a primary determinant in many situations. In the future, the ability of a lawyer to deliver high quality service in less time and at lower cost will likely become a hallmark of professional skill and value for both in-house and outside counsel. To achieve that, some leading edge firms are employing six-sigma techniques to hone their operations. At my company, we are, too.

No, the private defense bar is not on a path to extinction. We in the corporate practice need the knowledge, talents, and expertise of the private bar. However, the members of the defense bar who will thrive in the future are the ones who adapt and evolve their practices to meet the ever-changing demands of the marketplace. That’s where WDC can help. At WDC, our inclusive environment has brought us to a higher evolutionary plateau, organizationally speaking, than many of our sister organizations in other states. WDC has created an environment and fostered relationships between the private and in-house defense bar in which productive dialogue can take place. Together in WDC, members of the in-house and private defense bar are well positioned to meet the common challenge of providing increasing value to our clients. By doing so, we can continue to set a strong, positive example for our colleagues in other places.

The views expressed are those of the author and do not necessarily reflect the views of American Family Mutual Insurance Company.