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President’s Message: Our Role in the Civil Justice System The future of the insurance defense practice in Wisconsin has been increasingly on my mind. Many of my concerns (compensation rates, attorney retention, client relationships and the like) have long been subjects of discussion amongst our members. However, the extent to which the threats to our profession are real or only perceived, we benefit by discussing them directly and being proactive when action is warranted. My comments come from my perspective of practicing insurance defense litigation for 15 years. I feel right in the middle—no longer a “Young Lawyer” and not yet a “well-seasoned” lawyer with fifty jury trials under my belt. The future of civil defense, and specifically insurance defense, has become increasingly important to me at this point in my career. It has been incredibly rewarding, and I hope to enjoy this practice for many years to come. The strength of the insurance defense bar in Wisconsin depends on all of us—the Young Lawyers, the well-seasoned attorneys, and insurers alike. I am consistently energized and heartened by the work and involvement of the members of the WDC Young Lawyers Division. To WDC’s newer attorneys: We do not emphasize enough the vital role we play in the civil justice system. I worry that this may be partially to blame when we lose one of our younger members to plaintiffs’ firms and other types of practices. The plaintiff’s bar has done a masterful job of characterizing insurers and their counsel as nothing more than greedy impediments to justice for the most vulnerable and deserving people. If unchallenged, this false narrative may leave an insurance defense attorney feeling personally unfulfilled or that his or her work may be more meaningful in another setting. Our organization and law firms owe it to you to demonstrate the significance of our work and our roles. And our roles go beyond working to ensure that our insurer clients are not overpaying on claims, though this, in itself, is vital to the system. Just as the criminal justice system cannot sustain without the checks and balances of defense counsel, nor can the civil tort system. The criminal defense attorney helps ensure that individuals are only deprived of their liberty when the government proves their guilt beyond a reasonable doubt. Similarly, we protect the integrity of the civil tort system by helping to ensure that those who are compensated are legally entitled. To this end, we assist legitimate claimants in obtaining fair and swift compensation for their damages, which is the foundation of liability insurance. Without insurance, legally entitled tort victims would rarely have a solvent party from which to seek compensation. Moreover, we protect policyholders. Equal with the insurers who pay our bills, our clients are the individuals and businesses who are the targets of lawsuits. Often, our case may be the client’s only experience with the civil justice system. Even in cases where there is no personal financial exposure, our clients are often nervous and deeply invested in defending the allegations against them. Our insurers trust us to provide service on their behalf that puts these individuals at ease and helps them through what can be a very stressful time. If you have not yet had the opportunity to receive sincere appreciation from an insured, you soon will. It is extremely fulfilling. The WDC leadership wants nothing more than to engage the next generation of civil defense attorneys in the careers that we have all found so rewarding. If you do not have someone from your firm or organization to help you become more connected and involved in WDC, I know all of our board members will be delighted to do so. Please, reach out to any of us. In addition to the great work and energy of our Young Lawyers Division, I am equally grateful for the continued mentoring, involvement and guidance of the very experienced attorneys who are well known throughout our organization. To the leaders of our member law firms: The long-term quality of insurance defense representation and enjoyability of this practice area for those who pursue it is largely up to you. If I’ve heard anything from the great conversations our Young Lawyers Division has fostered, it is that newer lawyers want meaningful mentorship. And the good news is that, aside from the cost of pulling us away from otherwise billable time, being a good mentor is free. I would love to see WDC assist our more experienced attorneys in mentoring, as it is not a skill that comes naturally to many. Moreover, I encourage you to reflect on how you speak to newer attorneys about what we do and why. More often than not, are we tongue-in-cheek about our role in the civil justice system? Do we paint all plaintiffs with a broad brush, giving the impression that we are out of touch? Do we stress enough the important role we play for each of our insureds? Or that we are acting as the face of our insurer clients to them? I also urge law firms to look at the overall cost of really involving newer attorneys in our profession and our organization. In the grand scheme, allowing a new attorney to shadow you at a deposition or mediation for a day is well worth the cost. The same is true with covering the cost for associates to join WDC and DRI and attend our conferences and events. Like many of our members, I practice in a small firm in a rural community. I certainly understand the financial pressures of running a high-quality firm in such an environment. Though we cannot compete with our colleagues at very large firms in associate compensation alone, the good news is that our Young Lawyers Division members are telling us that they look for so much more than just compensation when choosing where they want to practice law. They want individualized development and inclusion. They want to know that their skills are improving, and their work is meaningful. These are things we can deliver in spades. Finally, our insurer members: One of the ways that WDC is unique amongst its state defense bar peers is the engagement of our insurer members. Most state organizations do not allow insurers to be members, instead reserving membership only for private counsel, or in-house counsel from non-insurer corporations. Although we encourage membership of all civil defense practitioners, insurance defense has long been a core focus of our organization. Counsel from other states have expressed envy at the insights we gain and the relationships we build between our private and insurer members. Not surprisingly, our insurers play a vital role in the strength of this profession. You probably think I am going to make a case for higher rates for outside counsel, and I am. We cannot deny the fact that we are watching many of our talented outside counsel find new employment in house and in plaintiffs’ law firms. And while compensation is only part of the equation, it is a crucial one. The caliber of counsel that I assume you want representing your companies and your insureds command much higher hourly rates in their private sector representations. We understand the tradeoff that ideally comes with charging these lower rates: steady workflow, prompt payment of bills and personally fulfilling work alongside claims personnel with whom we can strategize and collaborate. But the financial pressures—often from within our own law firms—are increasing. It is not uncommon for an insurance defense attorney to charge $150 per hour less than she charges her private pay clients. At some point, the attorney must ask whether making half as much money or working twice as hard for the same compensation is worth the tradeoff. While I am happy to give discounted rates to my insurers to do the work I love, there is a tipping point. I worry that we may be approaching the point where the best litigators in Wisconsin will no longer choose insurance defense as a career path, leaving our insurers and their insureds with sub-par representation and an imbalance in the civil justice system. I do not suggest that insurers pay rates equal to those we can charge of other clients. But the disparity seems to be growing. In addition to approving reasonable rate increases where warranted, insurers can further alleviate some of the revenue disparity for their outside counsel by encouraging associates to bill for their assistance at trials, or in assigning associates files to work under the supervision of a more experienced partner. I do not write these words lightly. I can only begin to appreciate the financial pressures faced by claims departments and their role in a larger organization that, perhaps, views them as nothing more than an expense or a cost of doing business. But we want to hear about your constraints and how we can better assist and represent you. Perhaps this is yet another column worrying needlessly about the demise of the insurance defense practice in Wisconsin. But, if nothing else, I hope it encourages ongoing, productive dialogue about how we can continue to work together to sustain and improve this practice for all of us. Author Biography: Nicole Marklein is a partner with the Baraboo firm of Cross Jenks Mercer & Maffei LLP, Sauk County’s longest-running law firm. She specializes in the areas of employment law and insurance defense litigation, including coverage issues. She is a frequent presenter on employment law and defense litigation topics. |