Selecting an Attorney
by Guy E. Burnette, Jr., Esquire
Defining the Role and Timing the Retention
When the Attorney is Retained
The selection of counsel for the handling of a suspected arson claim
may be one of the most important decisions made by an insurance company
investigating the loss. There are several important considerations which
should be taken into account when making the decision.
Defining the Role and Timing the Retention
First, there is the role of the attorney to be undertaken in handling
the file. The attorney will have a number of responsibilities during
the course of the investigation of the claim. Certainly, the attorney will
provide legal advice on the proper steps to be taken in the investigation
of the claim. With the advent of unfair claims practices acts and the prevalence
of bad faith claims arising out of arson cases, the attorney will see that
the investigation is properly conducted to minimize the exposure to such
claims. In the course of the investigation, it is likely the insured will
retain legal counsel. The insurance company should be represented by its
own counsel in all dealings with the insured's attorney. It will be necessary
to interact with public authorities in the investigation of an arson case.
The attorney will make certain there is compliance with the applicable Arson
Immunity Reporting Act in the jurisdiction and all communications with the
public authorities are properly conducted. In carrying out the investigation,
there will be the need to contact third-parties for information and records,
some of which may involve privileged or confidential matters. The attorney
will be necessary to avoid any problems with obtaining the records and information.
At the point an Examination Under Oath is necessary, it should always be
conducted by an attorney trained in the questioning and cross-examination
of witnesses. When the investigation is completed, the attorney will provide
a legal evaluation of the evidence and information which has been gathered
in the investigation to determine if it is properly admissible and legally
sufficient to support a defense of the claim. These are but a few of the
issues which require the involvement of an attorney in the investigation
and in each case there may be unique issues which arise requiring legal
The timing of the decision is critically important. There are
few cases where the attorney is retained too soon, but many cases where
the attorney is hired too late. At the early stages of the investigation,
the attorney will have little direct involvement. Consequently, concerns
about incurring substantial legal expenses should not be based upon the
timing issue. Having an attorney available who is already familiar with
the facts of the case will enable the attorney to promptly respond to any
issues which may arise. Most of the legal issues which arise in an arson
investigation require an immediate response. There is simply no time to
contact an attorney, send the file over, familiarize the attorney with the
facts of the case and respond to a pending legal issue on short notice.
Having the attorney involved from the early stages of the investigation
ensures there will be no mistakes made which could affect the outcome of
the entire case. By reviewing the investigative plan and strategy with the
attorney, these problems can be avoided. Perhaps even more importantly,
the attorney will have a better understanding of the case from being involved
at the outset.
Selecting the proper counsel is just as important as making the decision
to involve an attorney in the investigation. Hiring an attorney in an arson
case should be approached the same way as you would consult with a physician
about an illness or medical condition. Going to a cardiologist with vision
problems makes no sense. Visiting a dentist with chest pain symptoms would
be pointless. Yet it remains an unfortunate fact many insurance companies
select counsel for an arson case without regard for their training and experience
in handling such cases. An attorney may be a skilled trial lawyer. The attorney
may be an outstanding automobile accident defense lawyer. But, unless the
attorney knows how to properly handle an arson case he cannot be effective
and fulfill his role in the case.
Most insurance companies have a list of "approved counsel"
to handle their cases. There should be a special list for the attorneys
who will handle arson cases. When considering an attorney to handle these
cases, the insurance company should candidly and directly inquire about
the attorney's qualifications to handle an arson case. The attorney
should be asked how many fire claims he has handled in his career. He should
be asked how many of those cases involved issues of arson. The attorney
should be asked how many arson cases he has taken all the way to a jury
verdict. The attorney's win/loss record in those cases should be disclosed.
A skilled arson defense attorney should have a good working knowledge
of fire science issues. He should be asked about any training courses
he has attended on fire investigation issues. The number of such courses
and the sponsoring organizations should be determined. How many fire scenes
has the attorney visited? Has the attorney ever observed the origin and
cause investigation of a fire scene? There are other questions which must
be asked. Does the attorney belong to any legal organizations or groups
concerned with fire litigation? Does the attorney belong to any fire investigation
organizations or groups such as the IAAI, NFPA or local organizations of
fire investigators? Has the attorney ever provided instruction in fire investigation
or fire litigation issues in a training program? Has the attorney ever published
any articles on issues of fire investigation or fire litigation?
In every arson case, interaction with fire service and law enforcement
agencies will be necessary. Does the attorney have a working relationship
with local fire service and law enforcement agencies? Is the attorney known
and respected by the local fire service and law enforcement agencies?
These are pointed questions to ask of an attorney, but it is too important
a decision not to ask the questions and receive satisfactory answers. References
should be requested from the attorney for other insurance company clients
he has represented in fire litigation cases. Similarly, references for fire
investigators, fire officials and law enforcement officers involved in arson
cases the attorney has previously handled should be requested. When the
references are received, they should be followed-up. An attorney may be
"well-known" in the fire business, but may not enjoy a favorable
reputation for success in handling arson cases and his dealing with other
professionals. It is no time to find that out after the attorney has been
hired in your case.
When the Attorney is Retained
When an attorney is retained in the case, several things should be done
at the outset. First, there should be a meeting with the attorney to review
the facts of the case and the status of the investigation. The attorney
should be made aware of everything that has happened and where the investigation
is headed. The objectives of the investigation should be clearly stated.
Any particular concerns or problem issues in the case should be made known.
At the end of the meeting, the attorney should be just as familiar with
the case as the insurance company representative.
An often-overlooked consideration is a visit to the fire scene.
No matter how many photographs or videos of the fire scene may be available,
the fire scene can only be fully understood by visiting and examining it.
When it comes time to conduct the Examination Under Oath, this will assist
the attorney in better understanding the responses of the insured and making
sure all appropriate questions are asked. At the time of trial, the attorney
must be familiar with the fire scene to properly present the case. This
should be done almost immediately after retaining the lawyer in the case.
The fire scene may be destroyed or no longer available if this is delayed.
When the attorney is first retained in the case, the expectations
for the attorney's activities in handling the file must be clearly outlined.
Will the attorney handle the file all the way to completion, even through
trial? Will other attorneys be working on the file with the attorney? What
role will those other attorneys play? Who will remain primarily responsible
for the file in the attorney's office? Will the attorney's schedule and
caseload allow him to fully participate in the handling of the file? There
should be a clear understanding of the charges and billing practices of
the attorney in handling the file. Any specialized billing guidelines or
requirements of the insurance company should be made known and provided
to the attorney in written form. There should be no misunderstandings about
legal charges and billings later on if this is properly discussed at the
Finding a qualified attorney to handle the file can be a challenge. There
are few attorneys who truly specialize in the handling of these cases and
there may be none in the immediate area. Hiring an attorney from another
region may seem to be an expensive proposition, but hiring the wrong attorney
to handle the case is a far more expensive one. With a successful result
the expense will be justified. When a case is lost, it should never be because
of the attorney hired to defend the case.
Reprinted with permission from the author.