From the May/June 1999 issue

By Jeffrey D. Boyd 

Reprinted with permission from the Ohio Academy of Trial Lawyers. 

I have been looking through a very special three-inch-thick notebook that recently came to my attention by way of the Academy's good friend, James Peterson of Charleston, West Virginia.  It is a copy of Allstate Insurance Company's Claim Core Process Redesign Implementation Training Manual, dated July 1995.  This manual is a glimpse into the heart of a company that has made a deliberate decision to try to keep claimants away from legal counsel, and to make simple cases an economic burden for the injured.  It is a company whose financial resources, and determination use those resources to frustrate justice, should cause each of us to rededicate ourselves to the fundamental right of the injured to be made whole.

"We want to be recognized as the premier organization in the industry," Allstate says.  "Our change goal is to redefine the game..."

You have to read between the lines a little, but eventually the real reason for their desire to change "the game" becomes clear: "represented claims settle for 23 times more than unrepresented claims" (emphasis added).  So what's a wealthy company to do?  Its solution is based upon "A realization that the way we approach claimants and develop relationships will significantly alter representation rates and contribute to lower seventies"--in other words, if they can keep injured and vulnerable people away from lawyers who might explain and fight for their rights, they can close their files for less.

The extent of the work that went into this "redesign" is staggering.  It began with a national closed file survey, and expanded to interviews and focus groups, as long ago as September of 1993.  There was extensive testing and gradual implementation of "the plan" in test cities across the country.  Allstate was willing to spend the time and money because they wanted to save a lot of money--hundreds of millions of dollars.

How?  First, by "handling unrepresented claimants in such a way as to reduce the need for an attorney," since "improved claim rep rapport could help eliminate attorney involvement in almost half of the cases."

Second, by "...ensur(ing) rigorous investigation of the loss and alleged injuries, appropriate evaluation of the claim value, and strong negotiation based upon the questionable nature of an injury arising from minor impact" (emphasis added).  These are the "MIST" (Minor Impact Soft Tissue) cases, defined as "PD under $1,000 (or other evidence of minor impact), soft tissue alleged, represented."  The MIST doctrine focuses on the defense "that an injury is unlikely to have occurred" in low-impact cases.  The "solution" to the MIST cases includes "a willingness to try all cases where appropriate settlement cannot be reached."  Allstate, of course, decides what is "appropriate."

Adjusters are directed to "focus on reducing the need for attorney representation," by using phrases such as "please allow me to discuss your settlement options before seeking attorney representation."  They are urged to use the "Colossus" computer to aggressively evaluate claims.  "Surveillance" of the claimant is "recommended", but not required for handling MIST cases in litigation.  The manual advocates the use of a biomechanical specialist "in cases wherever the attorney profile indicates he will litigate and try the case", or "when nominal offer or denial is declined."

Cooperation is discouraged.  Adjusters are told to push for "rep/attorney/client" meetings, so they can "send a message to attorneys of our proactive defense stance on MIST cases."

Our individual reputations as trial lawyers are an important part of the mix.  Adjusters are instructed to use a "tool" called the "attorney information sheet" which is "to be used in creating deposition strategy" for the case.  The purpose of this "tool" is "to develop a profile on the structure of the attorney's law firm, the negotiation style, the typical claim amount, provider relationships and disposition habits."

I have heard a lot of lawyers complain that the settlement climate is different these days.  It is now clear why this is true.  The only solution to this type of corporate thinking is to take our clients before a jury of their peers and to plead their cases.  Otherwise, we abandon them to a "claims system" run by bean-counters and computers.

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