A unique look at investigation of claims and incidents from
three perspectives — the litigation manager, the expert and
the defense counsel.
erly transferred to risk management, the claims adjuster or
Although litigation management may seem like a very complex concept, the first step begins with basic claims handling
and common sense. Beginning with the end in mind is a
fundamental principle in this process.
The Litigation Manager’s Perspective By Randy F. Jouben
Far too many individuals charged with control- ling the litigation management process are under the mistaken belief that their role begins when a claim is made or when the summons is served. Since any incident can have a major impact to
your operation, it is imperative that a response plan is developed even before you have to put it to work.
Proper incident management should be exercised no matter
the nature of the event or injury. Responding to the injured
party’s needs establishes a rapport between the establishment and the injured party, and allows the responder the
opportunity to gain firsthand knowledge of the incident.
This is vital should additional investigation be required.
Although accident investigation is not the primary responsibility of staff members, managers should be trained in how
to respond to incidents, including what to look for and how
to listen at an incident scene. Management should be sensitive to clues that indicate that a full incident response team
may be needed as opposed to just a local investigation.
Another critical first step in the litigation process is to secure
the scene and preserve evidence. Although major incidents
warrant calling risk management so they can contact counsel and forensic experts to complete the investigation, seemingly minor cases can be lost in trial because no one documented the scene properly or because critical evidence was
thrown out. Now that virtually every cell phone contains a
digital camera, it is easy to document the location at the time
of loss. With the prevalence of security cameras, a great deal
of additional information may be available, but only if the
recording is properly isolated and maintained. Management
must take note of what occurred as well as document the
names additional staff or witnesses who were present. When
it comes to incident response planning, a procedure must be
in place to gather and protect chain of custody information
so once materials are gathered at the scene they can be prop-
The Expert’s Perspective By Ryan Siekmann
The process of keeping incident management from turning into crisis management has to begin well before a loss occurs. A reliable team consisting of all experts, investigators, special- ists, counsel, surveyors, etc. should be established and known to your clients, colleagues and team members. Many corporations, law firms, and insurance carriers
today distribute “24-Hour Response” lists to their clients
and loss professionals so in the event of an incident, they can
have their team on the ground and accessing the necessary
information as soon as possible. This is a great practice and
one that many successful companies and claims professionals exercise on a day-to-day basis.
From an expert’s perspective, there is a lot of money spent
during the litigation process that could be avoided had there
been a plan and team in place before the loss occurred. The
sooner an expert can obtain the necessary information
needed for their analysis, the quicker decisions can be made
regarding negligence, fault and ultimately how any financial obligations will be settled. Experts are retained to give
independent, unbiased opinions as to how and why a loss
occurred. Whether an expert’s professional opinion is for,
against or undetermined to their client, money that will be
spent on future litigation costs can be saved if the involved
parties know what they are dealing with up front.
One market factor that is a daily battle for the forensic expert
profession is the commoditization of the engineering and
expert witness industry. Everyone knows, including expert
companies, that not every loss requires a Ph.D. with 30 years
of experience and a four-page resume. At the same time, you
do not want to send the closest and the cheapest “expert”