Effective Sports Risk Management
Effective Sports Risk Management
The litigation process can be intimidating to anyone who is not an attorney, expert witness, or frequent party to lawsuits. Much of the literature in risk management that addresses this process is more academic than practical. The following description is based on actual litigation experience. Please note that this process may vary from state to state.
Discovery is the portion of the pretrial litigation process during which the parties request from each other relevant information and documents so they can “discover” the pertinent facts of the case.
Once an insurance defense attorney is hired, the insurance carrier has likely completed much of its own investigation on the claim. Additional information gathering is done through discovery conducted by the attorneys in the course of litigation, pursuant to the rules of the court. After the defense attorney files the answer to the complaint, the parties can request the other parties to answer a series of questions (requests for answers to interrogatories) and produce documents. The rules of the particular jurisdiction will govern how many questions can be asked and the scope of the documents that can be requested. Once this information is received, the attorney (or paralegal) reviews the information and summarizes it for the claims adjuster, who is constantly monitoring the litigation.
It is important to note that even though the insurance company has hired the attorney, the insurance carrier is not the attorney’s client. The attorney–client relationship is between the attorney and the person or organization that is being defended. Anything that is said between the attorney and client is confidential pursuant to the attorney–client privilege. Nevertheless, since the insurance company is paying for the defense, the reality is that the insurance company must authorize the discovery being conducted by defense counsel. Costs are necessarily kept as low as possible while providing the best defense possible.
If the matter involves allegations of physical or psychological injuries, the defense attorney will either request medical and psychological records by subpoena or simply have the plaintiff sign a release authorization so that the healthcare provider will release the documents directly to the attorney. A subpoena is usually issued using a court reporting company, which prepares a legal document and arranges for the records to be turned over by the provider. A notary will ask the custodian of records questions regarding the records being turned over, such as if those records are complete.
Since the Health Insurance Portability and Accountability Act of 1996 (HIPAA), it is more challenging for defense attorneys and insurance carriers to obtain records needed to evaluate medical claims. HIPAA is a law that was enacted to ensure the privacy of patients’ medical information. Providers will often not turn over records unless original release authorizations are signed that are current. The plaintiff’s attorneys may also require that the defense attorney sign a stipulation for protective order or some other document designed to limit how the information is used.
Once documents and basic information are obtained, depositions of wit- nesses, the plaintiff, and defendants may be taken. A deposition is a formal proceeding in which an attorney asks questions of a person before a court reporter. The court reporter is authorized to put the deponent under oath to tell the truth and uses a machine to take down everything that is said verbatim. The information is put in booklet form in a question-and- answer format, and the witness will have the opportunity to review the transcript to make changes if the transcript is inaccurate. The attorney can ask any questions that are relevant and could lead to discoverable information. During the course of the proceeding, attorneys may make objections for the record that can be ruled on by a judge at a later date. The information obtained through deposition further assists the defense attorney and claims adjuster in evaluating the case on liability issues and damages.
Through the course of litigation, experts might be retained by both parties in order to prove various issues of fact. If the way a motor vehicle accident happened is at issue, the parties might hire accident reconstructionists, who are usually engineer experts who can use information, such as measurements, property damage, and skid marks, to reconstruct the accident and testify accordingly. If there is a question as to whether a person could have sustained a particular injury in a car accident, a biomechanical engineer might be retained. The defendant may request that the plaintiff submit to an independent medical examination, which involves reviewing records, physically examining the plaintiff, and rendering opinions. A plaintiff might hire an economist to value the economic losses that he suffered because of the accident. In turn, the defense might hire its own economist to combat the opinions of the plaintiff’s economist. There are many types of experts that can be hired during the course of litigation for the purpose of testifying about a myriad of topics. These experts will have to testify about their credentials in order to be qualified as an expert in their particular field. Only after being so qualified will they be able to testify about their opinions, which will be limited to their expertise.
Alternative Dispute Resolution
Because litigation costs have risen, most jurisdictions advocate use of alternative dispute resolution (ADR) rather than have cases proceed directly to trials, which are held at taxpayers’ expense. ADR can be arbitration or mediation. Arbitration is where an arbitrator, usually an attorney, serves in the same capacity as a judge. The arbitrator may be assigned to govern the discovery process as well as hear the evidence and render a decision on the case. Sometimes arbitrations are binding, and the parties have to comply with the decision. These binding arbitrations can be required under an insurance contract, agreed on by the parties, or required by law. Arbitrations may be appealable in court, so that if one of the parties does not agree with the arbitration award, she can appeal it and proceed to a jury trial.
Mediation is another means of resolving cases without going to trial. A mediator is appointed by a court or agreed to by the parties. The mediator may or may not be an attorney but is usually someone trained in mediation techniques. Rather than hear the evidence, the mediator will assist the parties in coming to a compromise resolution. Although mediators can be expensive, the process saves time and attorneys’ fees and costs.
In most jurisdictions, courts attempt to settle cases before they proceed to jury trial. A settlement judge is assigned to the case. When the case gets close to trial, a settlement conference will be held and the judge will talk to both parties in turn, assisting in the resolution of the matter. The judge will often require that the claims adjuster, who has ultimate authority for issuing payment, be present. The plaintiff will also be required to attend so that settlement can occur. The judge may exert pressure on one or both parties to settle so that court resources can be saved. The judge will do this by telling the parties what the potential outcome will be based on the facts presented. A large number of cases are settled in this manner.
During the pretrial processes, insurance adjusters and defense attorneys must constantly evaluate the claim and consider the best strategy for paying only what the claim is worth. The chance of the defendant being found liable
and the amount of damages that the plaintiff has sustained are factored into the equation. Settlement offers may be made periodically to resolve the matter. Usually, an offer is made before the lawsuit has even been filed. Pre-suit offers may be attractive, as the plaintiff’s attorney has spent little time and money on the case. Once experts are hired and depositions have been taken, the money stakes go up—the plaintiff must receive a higher offer in order to pay these costs.
Motions for Summary Judgment
At any stage of the litigation process, a party may wish to file a motion for summary judgment. A summary judgment is a decision made by the court based on statements of the evidence presented to the court in the form of a motion. The evidence is presented for the court record without a trial. This is used when there are no disputed material issues of facts in the case. The court will decide if one of the parties is entitled to judgment as a matter of law.
Such motions are extremely common in sport and recreation cases. If the material facts of the case are not in dispute, a party will request that the court, as a matter of law, rule that summary judgment been entered in his favor. For example, if a spectator is hit by a ball in a stadium and sues the ballpark for negligence, the ballpark defendant may ask the court to rule as a matter of law that the spectator assumed the risk by sitting in the stands in the unprotected area. The court will review the law in the particular jurisdiction and apply it to the facts of the case. Appellate court decisions, statutes, affidavits, deposition transcripts, and other documentary evidence might be reviewed. The parties’ attorneys will also likely make oral arguments. The judge will decide by written order which party prevails. If, as a matter of law, the court decides that the party against whom the motion has been brought cannot prevail at trial, the entire case might be dismissed. It is also possible that a partial summary judgment will be entered if it does not dispose of all issues in the case or dismiss all of the parties. Either party may appeal a summary judgment granted by a lower court. If a partial summary judgment is issued, leave of the court may be required before appeal can be taken.
Most people have a good idea of what goes on in a trial from what they see on television, in movies, and on the news. Jury trials are much less common than most people think. Less than 4 percent of civil cases proceed to jury trial. In many states, the rate is closer to 1 percent. The reason is primarily economic. It makes sense to resolve matters quickly, save money on attorneys’ fees and costs, and use less expensive means earlier in the litigation process to resolve a case. Since most tort cases involve insurance, this process is driven partly by insurance carriers, who attempt to keep costs down in response to their duties to their policy holders and shareholders. Another reason for the rise in alternative dispute resolution is the high cost to taxpayers for judges, staff, courtrooms, jurors, bailiffs, and court reporters. Because of these financial realities, the cases that go to trial have generally exhausted other avenues of pretrial resolution.
If the case does proceed to trial, the first step is pretrial motions that are heard by the judge, before a jury is selected. Motions in limine (in limine is a Latin phrase meaning “at the threshold” or “at the outset”) will be filed, asking the court to exclude certain evidence from being considered by the jury. The court is essentially deciding before the trial begins what evidence it will not allow to be presented to the jury because it will be prejudicial against a party. For example, a party might ask the court to exclude any mention of insurance, as such mention will alert the jury to the fact that the defendant has insurance and might result in a higher award being rendered.
Next, jury selection begins. The attorneys will be able to ask the jurors questions in voir dire (which refers to an oath to tell the truth) so they can make assessments as to which jurors might be biased against their client. When attorneys engage in voir dire, they ask the jurors questions to elicit possible bias. For example, an attorney might ask if the jurors know any of the parties or their attorneys. If a juror knows a party, the juror might have a bias in favor of that party. Each party will have the right to dismiss a certain number of jurors. Once a jury has been empaneled, opening statements will be made by each party’s attorney, explaining what they expect the evidence to establish. The plaintiff, through his attorney, then puts on his case, calling witnesses for direct and cross-examination as well as submitting documentary evidence. After the plaintiff’s case, the defense counsel might make a motion for directed verdict, arguing that no matter what other facts are presented, as a matter of law, the plaintiff cannot prevail. If the motion is granted and it addresses all issues before the court, the defendant has prevailed, and the case is over. If the motion is denied, the case proceeds forward. The defense then puts on its case.
Once all the evidence has been received, the attorneys make closing statements, which recap the evidence and explain how the law applies to the evidence. The jury will then deliberate and render a verdict.
Anytime during the trial, the parties may make an offer of settlement. It is not unusual for cases to settle while a trial is in progress. If a party becomes concerned that the verdict will be against him, he has a chance to get out of the case at anytime if he is able to enter into a settlement agreement. A defendant might increase his offer, or a plaintiff might be willing to take a lesser amount.
If a case proceeds to a jury verdict, either party might elect to file an appeal with the appellate court. Just as the pretrial and trial process can be lengthy, an appeal can take several years. First, the party files a notice. The appealing party files an opening brief, explaining how the court erred in making a decision and identifying the law that supports its position. The nonappealing parties will have the opportunity to file answering briefs, arguing that there was no error and that the lower court was correct in coming to its decision. The appealing party will then follow up with its reply brief, providing the opportunity to combat the points made in the answering brief. The appellate court may allow oral argument, particularly if the justices have questions. Some appellate courts rarely invite oral argument. Eventually, the appellate court will render a written decision, which will either be published or unpublished, depending on the preference of the court. If it is published, it becomes the law of the jurisdiction of the court and will serve as precedent for other cases. If the decision is unpublished, it is significant only to the parties to the case. However, unpublished decisions may provide information to other parties as to how the court might rule when addressing a similar factual scenario.