Recently, a new long-term disability client lamented, “My old attorney said he didn't really do this kind of case, but he said he would try to help me out.” The client was disabled because he lost the use of his arms which were critical in the only work that he knew how to perform. The attorney thought that he could simply write a letter appealing the claim denial, attach medical records and send it in to the insurer. He thought the insurance company would rollover and pay the claim after receiving his letter because the client was not represented originally. But, the insurance company didn't rollover. And, they rarely do.

Insurance companies are not afraid of lawyers. They eat lawyers for lunch. They have fleets of lawyers. And, these lawyers love to practice in the area of ERISA especially when the arbitrary and capricious standard of review applies, and the claim record is weak for the claimant. Those are easy wins.

Long-term disability insurers are also not afraid of ERISA lawyers. But they do recognize when the claim record is made by a lawyer who effectively practices in the area of ERISA on a regular basis. It's like a stone to the forehead. The cost of litigating a strong claim with an ERISA lawyer is much higher than with other lawyers who can be dispatched with a motion to dismiss. This client's attorney underestimated the complexity of ERISA cases and overestimated his ability to successfully wade into this arena. The client summed it up nicely: “He wasted my bullet.”

Clients must strengthen their case in the claim process. If the arbitrary and capricious standard of review controls (and it usually does) that client only has one or two “bullets” with which to win the case. If those efforts aren't successful, the claim may be lost. The court will limit its review to the facts known to the insurer, so cases with no claim or a very weak claim record are DOA.

This lawyer was the client's friend. He was only trying to help. But, he didn't. In fact, he almost blew it. When facing an ERISA behemoth with only one or two bullets, you must take your best shot. We do this every day. Don't test your luck. Let us help you take the best shot possible.