Selecting an Attorney

by Guy E. Burnette, Jr., Esquire

Contents

Defining the Role and Timing the Retention

Selecting Counsel

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 assistance.

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 Counsel

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 outset.

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.