Insurance Defense Editing and Proofreading Services

The reserve is set from the letter, not from the file. An adjuster carrying a large caseload will not read the deposition transcripts, the medical records, or the pleadings; they will read what counsel wrote about them, decide what to hold against the claim, and move to the next matter. Everything that follows, including how much authority is granted and when, rests on a document that took an hour to write and four minutes to read.

Reporting letters make up most of the insurance defense work that reaches us: initial reports, status reports, and pre-trial and pre-mediation evaluations. Coverage opinions and reservation of rights letters arrive with them, along with reserve recommendations and correspondence with insureds. Pleadings, motion papers, expert reports and deposition summaries come through the same files, and the answer is written to a rule requiring each denial to "fairly respond to the substance of the allegation."¹

A reporting letter is read for one thing first, and it is usually not on the first page. The reader wants the current assessment of exposure and the recommendation, and the letter is typically organized chronologically, so the assessment sits at the end because that is when the writer arrived at it. Reordering it costs nothing and changes nothing. The analysis stays where it is; the conclusion moves to the front, the range is stated once in figures rather than in adjectives, and the reasoning follows for the reader who wants it. Insurers with reporting guidelines generally require this shape already, and compliance with those guidelines is noticed.

Figures are the most common defect we find in this area, and the least excusable. A letter states a damages range in the narrative, a schedule attached to it carries a different number, and a third figure appears in the reserve recommendation because it was updated after the body was written. The three are usually reconcilable and nobody has reconciled them. The same applies to dates: the date of loss, the date of the tender, the limitation date, and the trial date each appear in several documents in the file and are not always the same in all of them. Checking every figure and every date against the source and against each other is mechanical, slow, and the thing that most often gets skipped when a report is finished at eleven at night.

Expert reports have a content standard written into the rules, which makes them straightforward to check for completeness even by someone who cannot evaluate the opinion. A retained expert's report must contain "a complete statement of all opinions the witness will express and the basis and reasons for them", the facts or data considered, any exhibits used to summarize or support them, the witness's qualifications including publications from the previous ten years, and the compensation.² Rule 702 then requires that the testimony be "based on sufficient facts or data", be "the product of reliable principles and methods", and reflect "a reliable application of the principles and methods to the facts of the case."³ Whether an opinion meets that standard is a question for counsel and the court. Whether the report states its basis, identifies the material considered, and carries the items the rule lists is a question about the document, and a report missing one of them is missing it whether the opinion is good or not.

Reservation of rights letters are the hardest documents in this field to write well, because they have two readers who need different things. The insurer needs the letter to identify which provisions are in issue and why, specifically enough that the position is preserved. The insured needs to understand what is being said without reading it as abandonment. Those pull in opposite directions, and the usual result is a letter that quotes three pages of policy language and explains none of it. The wording of the reservation is counsel's and does not change. What changes is the sequence: what the insurer is doing, what it is not yet deciding, which provisions that turns on, and what the insured should do next.

Pleadings and motion papers carry an obligation that bears on how they are written. By presenting a paper to the court, an attorney certifies that "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery."⁴ The phrase "if specifically so identified" is doing real work, and a draft that asserts flatly what the file supports only on information and belief has not made the identification the rule contemplates. Whether an allegation is supportable is counsel's judgment; whether the document distinguishes what is asserted from what is pleaded on information and belief is visible on the page.

We do not evaluate liability, quantum, or coverage. Whether a defense is available, what a claim is worth, whether coverage responds, what reserve is appropriate, and what to recommend are professional judgments belonging to counsel and the insurer, and they reach us made. We do not change a figure, a date, or a characterization of the evidence. Where two documents in the file state different numbers, both come back with the difference set out for counsel to settle.

Everything sent to us is confidential, including claims files, medical records, reserve information, and material prepared in anticipation of litigation.