Business Development Best Practices for Policyholder-Side Insurance Recovery Attorneys

Business Development

The authors of this article were fortunate to speak with various talented policyholder-side insurance recovery attorneys who were gracious enough to share how they went about developing business and establishing their practices. Below, we present highlights from these discussions.

Angela R. Elbert of Neal Gerber Eisenberg LLP. Angela Elbert says that networking is akin “to taking a fishing pole and putting out different fishing lines in the sea—you don’t know where the fish are or where they’ll bite,” but when they do, you are in a good position to get work. She recommends keeping in touch with current colleagues who may go in-house or more junior in-house people at various companies, and that might involve scheduling a lunch, breakfast, or dinner with them periodically and getting involved in community organizations.

Elbert says you need to be a salesperson so that the people with whom you speak feel confident that you can provide them an answer and solution, you know what to do, you are an expert in your field, you have handled a situation like this before, and you can get them money.

She says that when you first begin seriously trying to develop business, it feels daunting. But then one thing will happen, and that builds on itself—word of mouth referrals, perhaps someone on the other side of a case who saw what a great job you did. She says that what once took so much work and felt difficult “all of a sudden doesn’t feel so difficult.” Sometimes you don’t even know where a referral comes from, and she says “it’s really exciting when you feel that change and shift” when work starts coming to you more easily than when you began.

Marialuisa S. Gallozzi of Covington & Burling LLP. Marialuisa Gallozzi recommends being “interested in what’s around the corner” by looking at emerging areas of insurance coverage law and working to become an expert in that area, particularly areas that are of interest to you and areas where your firm needs expertise or where the current expertise has no clear successor. She says “you never really stop learning new things and looking for opportunities.”

Gallozzi recommends getting out of your comfort zone, noting you should be intentional and practice it just like any other skill. She suggests trying different things—networking events, conferences, writing articles and blog posts, speaking on panels—to see what works.

To practice these skills, Gallozzi recommends setting professional development goals for yourself, writing down the tasks you want to accomplish during the next year, something granular to hold yourself accountable and so you consider it part of your own professional development to learn the skills. An example might be “I want to write one article, two blog posts, attend one cocktail party, participate in a panel, and ship an article to three client contacts.” She also notes that you should be patient with yourself during this process—“you’re going to miss opportunities and not have perfect client interactions. Start small and learn how to do it. All these mechanisms for client development, you get better at them until you retire.”

Michael W. Huddleston of Munsch Hardt Kopf & Harr, P.C. Michael Huddleston suggests getting involved in the tort and insurance practice sections of your state bar—attend meetings, serve on committees, help with projects, get involved as a member, board member, or officer. He also recommends writing articles and blogs, and posting articles and blogs on your social media, whether you wrote them or not. He advises to grow your contacts on sites like LinkedIn. Every case should add to your contact list. He also recommends writing articles in trade publications and speaking at seminars. Do not ignore getting involved with and participating in trade seminars for trades that have insurance issues, such as hospitality, construction, and oil and gas.

Huddleston also recommends expanding your focus. Years ago, he began work on construction contracts, leases, and other commercial transactions that involve indemnity provisions, exculpatory clauses, and the obligation to procure insurance. While it’s “not typical policyholder work,” it “gets you involved in working with associate general counsel and general counsel with a company, showing you’re a thought leader on critical issues to their business” and helps you “make sure everyone knows that you can get good provisions for clients involving risk management–related contract issues.” He says not to limit yourself to “coverage” work because “a lot of the opportunities with clients are where you have multiple talents” and can “help your client get out of a mess,” demonstrating your value by, for instance, convincing the carrier to pay for independent counsel if the carrier-appointed counsel is not working out and finding defenses the defense lawyer has not thought about. Then you’re better placed to help your client in disputes with the insurance company at mediation or during eventual litigation.

Georgia Kazakis of Covington & Burling LLP. Georgia Kazakis explained that business development is not a one-size-fits-all endeavor, and there are approaches that can facilitate client development consistent with one’s interests and strengths. Unique to coverage law is that two aspects of law require attention: the underlying matter and coverage for that matter. Consequently, part of business development is gaining expertise relevant to both aspects, rather than limiting oneself to coverage, because generating insurance business often comes through a “side door.” In other words, if a prospective client is facing an impending or materialized risk, you should seek to demonstrate expertise in that underlying matter, and then use your insurance expertise as a “side door” to obtain the coverage business.

Kazakis also advised that substantive coverage expertise developed in handling one’s current case load can be built on and, importantly, applied to different contexts. For instance, a senior associate handling a first-party property insurance coverage matter dealing with a natural disaster can use that experience as a springboard to build expertise. Once you have learned the basic anatomy of an all-risk first-party property policy, how such policies can differ from one another, and how coverage law has developed in the first-party property area, you can seek to expand your substantive expertise and client base by applying that expertise to different losses, whether they be manmade disasters, cyber risks, COVID-19 losses, or something else.

Another piece of Kazakis’s advice pertained to thought leadership. Attorneys often focus on thought leadership where the audience consists of other attorneys. Although there is nothing wrong with this, another approach is focusing on thought leadership in specific industries, thereby establishing a footprint in that industry that eventually develops into business generation.

Mary McCutcheon of Farella Braun + Martel LLP. Mary McCutcheon stressed the importance of doing good work on the cases to which you are assigned, noting instances in which the client acknowledged that although the partner was in charge, the client was aware that McCutcheon was taking the laboring oar. Down the road, this may result in you becoming the point of contact when the partner is no longer around and that client has a similar problem. A key part of this, McCutcheon noted, is staying in touch with the client between matters. Clients may not have a steady stream of coverage work, so it important to stay fresh in their minds, whether it be through regular lunch meetings or emails with thought leadership relevant to their business. Importantly, the “client” is not only the general counsel, and the above applies equally to junior in-house attorneys, especially for senior associates.

McCutcheon also noted the importance of recognizing how new trends fit into your previous experience. As an example, after the 2008 financial crisis, McCutcheon received a call asking whether she had experience with coverage issues arising out of that crisis. Although McCutcheon had not dealt with a coverage dispute relevant to the 2008 crisis, she gained experience during the savings and loans crisis in the early 1980s. Given that similar principles would apply to the 2008 crisis, McCutcheon was able to sell her previous experience to generate business. In essence, be sure not to refuse work without first thinking through your previous experience, which may actually make you a good fit for the matter.

George M. Plews of Plews Shadley Racher & Braun LLP. George Plews, originally an environmental litigator, began to focus on insurance recovery around 1986 due to his work with new environmental statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act. Plews realized clients subject to enforcement actions would need considerable funds to comply, and it was unclear from where clients would obtain such funds. Plews thus studied whether coverage was available for environmental enforcement actions and coauthored an environmental article supporting coverage published in the Indiana Law Review in 1988. He put to use the coverage knowledge he developed during its drafting when a firm client requested Plews to handle insurance issues related to superfund notices it had received. Thereafter, Plews’s reputation as an environmental coverage expert grew significantly, with other law firms and clients seeking his expertise—a development he attributes in part to the article he published. This in turn produced more writing and speaking on insurance coverage. Eventually, this led to Plews representing policyholders on a larger scale, which came to include non-environmental coverage issues.

Plews’s primary recommendation, therefore, is for attorneys to be on the lookout for new issues that may lead to widespread coverage needs and disputes. Once you have identified them, you should research and publish thoughtful scholarship demonstrating you have carefully analyzed the issues and have useful knowledge so you can reliably provide exceptional representation for businesses in need. One notable aspect of Plews’s Indiana Law Review article (which he followed with numerous other articles and speaking engagements) was its citation to primary sources, which resulted in attorneys contacting Plews to obtain those sources, an important reason why that article in particular raised his profile and led to business development.

Hypothetical Scenarios

As the saying goes, most things are easier said than done. Consequently, although the insights gathered above are of much practical use standing alone, below we apply these insights to hypothetical situations to illustrate how aspiring policyholder-side attorneys may go about putting them into practice.

Cyber hygiene and Biometric Information Privacy Act coverage disputes. Although cyber insurance is hardly novel, coverage issues of first impression are constantly arising. A recent example involves carriers imposing “cyber hygiene” obligations on entities seeking cyber insurance, requiring the adoption of security measures, such as multifactor authentication, to obtain coverage. Prospective insureds thus are often required to represent that they have the mandated cyber hygiene requirements in place. Unsurprisingly, insureds subject to cyberattacks are being denied coverage because their applications allegedly contain misrepresentations regarding their cyber hygiene, leading insurers to seek to rescind policies. A recent, well-known example of this is Travelers’ complaint against International Control Services, Inc. (ICS), seeking rescission of ICS’s cyber policy due to alleged misrepresentations regarding multifactor authentication. (See Complaint for Rescission & Declaratory Judgment, Travelers Prop. Cas. Co. of Am. v. Int’l Control Servs., Inc., No. 2:22-cv-02145 (C.D. Ill. July 6, 2022). Given the frequency of cyberattacks and the confusing and convoluted nature of insurance applications, especially those involving technological issues, this is a relatively new issue that is ripe for business development opportunities.

Another emerging area of law concerns biometric information privacy (BIP) statutes regulating businesses that use biometric identifiers. Thus far, litigation has primarily concerned the collection of fingerprints, but businesses that use facial recognition and voiceprint technologies, among other things, are also becoming common targets. Moreover, although Illinois implemented the first BIP statute, other states have enacted similar legislation, and as of June 2021, BIP legislation was pending consideration in over half of the states. Depending on the BIP statute at issue, businesses facing litigation can be subject to devastating damages—some statutes allow for damages of up to $1,500 per violation. All of these circumstances render BIP coverage a fertile ground for business development.

Applying business development principles to these emerging issues. So how might an aspiring policyholder-side attorney apply veteran advice to develop business in connection with cyber hygiene and biometrics? A common thread from the interviews summarized above is to identify these issues before they are in fashion. As Plews noted, stay on the lookout for emerging opportunities that may lead to widespread coverage needs and disputes. Once you have identified them, develop expertise on the subject. This may result, as McCutcheon explained, from the sheer happenstance of being staffed on a case focused on cyber hygiene or biometrics. In those instances, do not hesitate to take advantage of the opportunity to become a point of contact for the client, potential clients, or other lawyers by raising your profile and making your expertise known.

In this regard, senior associates looking to develop business in these areas should publish thought pieces or engage in speaking opportunities about cyber hygiene or BIP statutes, providing useful tips for potential clients and demonstrating their expertise. Consistent with Kazakis’s advice, this expertise need not be limited to coverage issues. Using the “side door” approach, thought pieces on cybersecurity or compliance with BIP statutes before coverage issues arise are an effective way to develop insurance business. For instance, one might publish a thought piece about the frequency of cyberattacks and necessary steps following a cyberattack, or about the growing enactment of BIP statutes and how businesses dealing in biometrics should be vigilant in ensuring compliance. Although not explicitly insurance-related, demonstrating this expertise while also being a coverage attorney can lead to policyholder-side business opportunities. Further, as Huddleston noted, do not hesitate to make your expertise known, whether it be through sharing thought pieces, getting involved in seminars, or various other methods.

Apart from identifying emerging issues, developing expertise pertinent to them, and making that expertise known, senior associates should be deliberate about regularly keeping in contact with their networks. As Elbert noted, this may include meeting over a meal with people in their networks periodically or getting involved in community organizations. One way to go about this, as Gallozzi recommended, is to set business development goals for yourself each year to hold yourself accountable.

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