Conclusion

• Author: Scott M. Riemer/Jennifer L. Hess
• Pages: 205-206

10-187

CONCLUSION

T

         

either during the initial application phase or during one of the

appeal phases. e best way to avoid litigation is to prepare the

client’s application and/or appeal in anticipation of litigation. When

you have a well-supported claim and appeal and signal to the insurer

(by your thorough preparation) that you would litigate if you have to,

insurers are more likely to pay the claim and save litigation for someone

else’s client. Moreover, if in the unlikely case, the insurer requires you

to bring litigation, you are well prepared to prevail in that litigation.

ERISA litigations are like no other. ey have their own rules, pro-

cedures, and standards. In some ways, they are easier than individual

disability insurance cases litigated in state court. While you do not have

the incentive of bad faith insurance damages, that is oset by the likeli-

hood of an attorneys fee award if you prevail. Moreover, because most

cases are resolved by either a motion for summary judgment or judgment

on the record, the costs of litigation usually are much lower. ere usually

is no need to take extensive discovery and pay for expensive medical

and vocational witnesses. Because of these advantages, we often are

more willing to litigate an ERISA disability case in federal court, than a

comparable case for individual disability benets in state court.

e bottom line is that a lawyer can make a nice living in the highly

specialized and niche area of ERISA disability claims and litigation,

and in so doing provide much help to clients in great need. It is highly

rewarding work on many levels.