The “insurance lawyer” technically works for the guy who hit you – but as a practical matter, the insurance company calls most of the shots.
This is because the insurance company hires the lawyer to represent the other driver, pays him, and will probably send him more work if he keeps them happy. It’s also because the insurance policy requires the other driver to cooperate with the company in his defense.
Under the terms of the other driver’s auto policy, his insurance company has the duty to pay any judgment you obtain against him, up to the policy limits. The insurance company also has the duty to defend him – which means it selects his lawyer, and pays the lawyer as well.
Let’s stop for a second, and look at peoples’ interests. The person you’re suing mainly cares about not having to pay a judgment, and not having his time taken up with the lawsuit.
The insurance company cares about paying as little as possible in attorney fees and settlement costs. And they don’t want to get sued by anyone they insure for “bad faith”.
The insurance lawyer cares mainly about protecting his client (the guy you’re suing), getting paid, and being assured of getting more business from the insurance company. Maybe in that order, maybe not.
Increasingly, insurance companies are getting more and more proactive in controlling lawsuit costs; the largest of which is legal fees. They do this by refusing to pay for certain types of legal work, by limiting the charges they will pay, and by exercising control over whether they will allow the lawyers they hire to do certain things – filing certain motions, taking depositions, and conducting discovery.
So if a lawyer wants to take a deposition, or file a motion, and the insurance company doesn’t want to pay for it, it doesn’t happen – usually. If the lawyer thinks the case would be a good one to try, and the insurance company doesn’t want to take the risks that come with trial, the case settles – usually.
And the person you’re suing doesn’t care, as long as there’s no chance his money is going to be used to pay you.
So when is there a difference between what would happen if the lawyer represented the other driver, and what would happen if he represented the insurance company? Several situations come to mind.
The most obvious is when it’s clear that the lawsuit is worth more than the other driver’s policy limits – or whatever the insurance company wants to pay. The lawyer has to protect his client’s best interests.
So if the lawsuit is clearly worth $100,000, and the other driver’s limits are $50,000, the driver’s lawyer will almost always recommend that the insurance company offer its limits in exchange for a release of the other driver, even if someone at the insurance company is willing to “bet the farm” that the insurance company can win. (How much the injured driver gets in this situation will depend mainly on whether he has underinsured motorist coverage.) Because it doesn’t want to get hit with a lawsuit by it own insured for bad faith, the insurance company will make the offer.
If the lawyer thinks the case is going to trial, he has the duty to tell the insurance company to spend the money necessary to try the case, even if it will not allocate the legal fees required.
If the lawyer is concerned that very confidential and damaging information about his client will become public during trial, he has a duty to try to persuade the insurance company to pay the funds necessary to settle the lawsuit, even if he knows the verdict will be less than the proposed settlement.
So the insurance attorney is not always your enemy. He may not be your friend; but his client’s interest may coincide with your own. When that happens, it’s good to know how to use that.
I have been a lawyer over 30 years. I give lectures on legal ethics, bad faith and insurance to other lawyers. If you want to talk about your lawsuit, speak with an experienced Attorney – call me at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.