Changes to personal injury law rules mean firms must be strategic: innovation forum webinar panel

Increasing use of in-house counsel by insurance firms

In the past, personal injury lawyers and insurance defense lawyers (often external) would look at how much it costs to settle claims and compare it with the costs of going to trial, said Sutton, who used to practice insurance defense law before switching sides. However, the trend he has noticed since at least 2015 has been for insurance companies to rely more on in-house counsel to deal with claims, “and that has really changed the dynamics.”

Insurance companies have also started adopting a more standardized approach to how they would deal with files, “and some of them have decided to really play hard,” Sutton told the forum webinars, saying many are taking cases to trial with in-house lawyers. One reason is the use of paid counsel; the other is a desire to take stronger stands “in uncertain cases they feel they are defensible.” In some cases, they may choose to resolve faster. Others want to see “how long can you keep you and your client going.”

Yoni Silberman, a partner with Bogoroch and Associates in Toronto, added that she feels that in the past, there was more room to negotiate in mediation or pre-trial sessions. “You’d feel as if you were . . . debating issues of law with counsel,” she said, and the opportunity to persuade.

Moving more cases in-house “has really empowered the insurance adjusters,” she said, “because they are relying on a strategy,” making them more willing to take a rigid stand. Often, it’s the insurance claims representative making the final decisions, she said, begging the question, “Why did you come here with a lawyer in the first place? . . if you are not going to hear from people who are spending their time in court.”