Top Ten Tips from the Insurer Side for a Successful Summary Judgment Argument 1

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1 Top Ten Tips from the Insurer Side for a Successful Summary Judgment Argument 1 John Mumford Hancock, Daniel, Johnson & Nagle, PC Richmond, VA Anna D. Torres Torres Law Group West Palm Beach, FL INTRODUCTION If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell. Carl Sandburg. It s been said that If you re going to be a coverage attorney, you must learn to love the policy. This is particularly true for counsel representing the carrier in coverage disputes. Being intimately familiar with and comfortable discussing the intricacies of the policy at issue is of 1 The authors views are their own and not that of their law firm or their clients. 1

2 particular importance in the context of successful summary judgment arguments. But it is not enough to be conversant with the policy. Insurer side counsel often feel that they walk into the courtroom at a disadvantage and must overcome additional, conscious or unconscious, obstacles. Myriad commentators have provided useful, general advice for litigators wishing to hone their oral argument skills. For insurance counsel, these specific strategies should be added to the list. 1. Be clear and concise. The insurer s position on a coverage issue (especially involving the construction of policy language and application to facts) must be clear and concise. If the insurer s attorney cannot clearly explain to the court how the policy provisions work in a short amount of time, the court is much more likely to see ambiguity in the policy. 2. Be prepared for the what does this policy cover question. Court are curious as to what the policy covers and frequently will ask so, if this is not covered, then what would be covered. Even though insurers don t relish addressing coverage for hypothetical situations, you can t ignore this question and should be prepared with some examples (cleared in advance with your client) of what is covered. 3. Be wary of questions about ambiguity. I have been asked on several occasions to concede that a policy provision could be more clear. Often, it is couched in the seemingly innocuous phrase While I can see your point on how that policy language applies wouldn t you agree with me that the insurance company could have written it more clearly. Of course, every document in the world can (in hindsight) be made more clear but that is not the standard. A response that our case is about the language that was used - not what could have been used - and this language actually used is clear and unambiguous, is effective. 4. The defending trap. When your client-insurer is defending under a reservation of rights, but is asking the court to declare that it owes no duty to defend, have an explanation for why the insurer is defending and did not deny. I have been asked on more than one occasion why is your client currently providing a defense if it is so clear that they don t owe a defense. 5. Be conversant with the underlying litigation and status of that litigation. 2

3 Often judges are interested in what is happening both substantively and procedurally in the underlying litigation. Be ready to address these questions. It is a bit awkward when neither counsel for the insurer nor the policyholder know when the underlying case is going to trial. 6. Have that one case. There is a judge in the Eastern District of Virginia who likes to ask the final question if you want me to look at one case on this issue what would it be and why? While oral argument does not typically delve deeply into the details on case law that has already been discussed in briefs, if you have one or two compellingly analogous cases then discuss them with the court. There is safety in numbers and it is helpful to let the court know that your position offers that safety. 7. Know what happened in the cases you are citing. Your brief may include lots of cites to cases and even (cringe) long string cites to show the court why your reasoning is legally sound and nationally accepted. However, don t assume that just because the case is in the string cite that the court will not ask you about it. If the case has been cited by you or the opponent, be conversant with that case (what happened, holding, etc.). You can simply bring a cheat sheet that lists all the cases in alphabetical order with a brief synopsis. 8. If you did not help with the brief, then don t argue the case. I actually witnessed this exchange: Court: According to your brief, the State Supreme Court decided this issue in the Jones case. Tell me what that case was about. Senior Partner: I don t recall what happened in Jones - but my associate Ms. Smith here with me knows that case very well because she wrote that part of our brief. Court: Then why are you talking to me and not Ms. Smith? Don t be this person. 9. Don t forget burden. Judges often want to know which party has the burden of proof on an issue. Make sure you are prepared to address this question. If the other side has the burden, get that out early and often, it may win the case. 3

4 10. Don t hide from uncomfortable standards. Some states have a rule that if the policy language is ambiguous the language is construed against the insurer - period (there is no inquiry into intent, etc.). If the law is clear, there is no reason to hide from it or try to dance around it on oral argument. Accept the standard and explain to the court why you still win. 11. Know your audience. Very few judges are coverage experts. Most judges hear a broad variety of cases in their courtrooms and when dealing with complex coverage matters, will appreciate your assistance in understanding the issues. Consider including an index with your motion providing a cheat sheet with the relevant policy definitions with citations to the applicable section of the policy and an outline with the policy provisions that are relevant to the issues before the court, again with citations to the applicable sections of the policy. 12. Less is more. Do not make every argument imaginable hoping that one of them will resonate with the court. Insurance policies are complex instruments. Most people are neither intrigued nor fascinated by these complexities, and those who do not deal with coverage analysis on a regular basis quickly become overwhelmed by the task of policy construction. The more provisions, limitations, exclusions, exceptions, parts and subparts you have to discuss, the more likely the court will decide that complexity indeed does equal ambiguity. Commit to at most three of your strongest arguments for your summary judgment. That 12 th possible argument is not likely to be the winner. 13. Avoid coverage lingo. Yes, you and your other coverage lawyer buddies know what CGL, ISO, BI, POL, EUO, J1, J2, J6 and many other shorthand references mean, but most people don t. Avoid such abbreviations in your oral argument. You run the risk that the court may not be able to follow your argument, but also not bother to ask you to clarify. It is your responsibility to make sure the argument is clear and understandable. Lingo and shorthand references may get in the way. 14. Stay on message. Argue in favor of your position, not against your adversary. If you are the moving party, stay on message. Your adversary may attempt to muddle the issues by bringing in many extraneous facts and information outside the record. If you find yourself going down the path of arguing 4

5 against every irrelevant or inaccurate fact, your argument has been hijacked and your chances of prevailing will decrease. Redirect the argument and the court s attention to the issues you are there to argue. 15. Do not overlook the basics. Few things are worse than losing a motion for summary judgement because your supporting affidavit was untimely. Or having the court rule that it will not consider one of your key documents because of an evidentiary deficiency. 16. The best arguments start with great motions. Your particular judge may, or may not, read all of your written submissions before (or after) your oral argument. A fantastic brief may sway the court in your direction before oral argument and, of course, preserve all your issues for appeal. But even if the court does not read the brief, there is great value to a well-planned, well researched and well written motion. The act of planning, researching, outlining and writing the motion will organize your thoughts and arguments and prepare you to present your arguments at the hearing. 17. Sometimes you don t have to win to succeed. Everybody loves a win. But in legally or factually complex coverage cases, the motion for summary judgment is an opportunity to familiarize the court with the issues, introduce the court to the policy, and lay the groundwork for the subsequent proceedings. The motion for summary judgment will also force your adversary to disclose their theory of the case and the evidence which supports that theory. And, of course, it allows you to evaluate opposing counsel s skills in the courtroom. Even if you didn t eke out a difficult win, there is much intelligence to be gained which will help in planning the rest of your case. 5