Disciplined in Sophisticated Defense and Insurance Litigation

April 01, 2014 | Publication| "How to Succeed at Subrogation (...but you do have to try!)"

Hobart M. Hind Jr.

Success in Subrogation can be measured in many ways, and depends greatly on what type of business is at issue for the underlying recovery claim.  There can be different strategies for each type of subrogation claim (Property is different from Health Care which is different from Workers Comp which is different from Auto) but there are some universals, and we will try to discuss those here.

Recognizing Your Claim

First and foremost, you will never have a successful Subrogation claim if you do not have a system in place to capture your viable Subrogation claims.  It sounds axiomatic, but even in this day and age where Subrogation claims are commonplace, some companies do not have a reliable system to catch every claim.  This can take many forms: (1) the company can have an entire Subrogation group depending on the number of claims; (2) there can be a person or two who serve as a “clearinghouse” for sifting through claims and referring out to vendors; (3) for companies that rely heavily on independent adjusters, the screening process should be written into the agreements with those vendors; or (4) every claim may get sent to a law firm for review.  As the old golf joke goes, 99% of all putts that do not get to the hole don’t go in!

Involving Potential Adverse Parties

Second, the moment you are aware of a potential claim against another party, you must get those other parties involved in the process.  Today, with the electronic tools we have at our disposal every minute of every day, there is no excuse to not get an email into the “in-box” of the claims personnel for an adverse party in a claim immediately.  Every court in the U.S. is savvy to the generic spoliation issue (which has now evolved into far more than simply “throwing away evidence”). 

When parties are perceived to have not been given a level playing field in the claim process, this will affect how your subrogation case plays out.  Recognizing the need for litigation holds on documents possessed by your insured is critical on this playing field.  This concept will also affect how the experts are dealt with, how discovery is handled, and most importantly, how the trier of fact perceives your claim.  To the extent you are able, keep the relevant evidence at your loss scene in place to give others the same opportunity to see what you are seeing.  When you have a contract in place, read the contract to see if you have a “proper notice” provision:  If you do, follow that provision to the letter!  Another important point on this issue is in understanding how long you have to finalize all scene examinations so that you (1) do not delay the claim – it is rarely a good idea to let the Subrogation investigation impact the claim; and (2) protect the evidence you do have, because invariably the passage of time is bad for evidence.  Lastly on this point, make sure your Subrogation investigative team does whatever it can to talk to everyone who knows the most about what happened – surprises in litigation are rarely good for your Subrogation case and will usually cost you money.

Different Claims = Different Strategies

Third, not every claim is treated the same way.  Just looking at the Property Subrogation world for a moment, how you set up a claim involving an alleged product defect is not the same as how you set up a claim against a roofer who caused a fire.  How you set up a claim for “per se responsibility” under a contract is not the same as how you set up a claim for “fire spread” against a vendor who had absolutely nothing to do with the start of the fire.  For this reason, how you allocate your scarce resources is crucial.  For instance, if you have a sprinkler system failure, you may save yourself tremendous expert dollars over the life of your claim by retaining a Fire Protection Engineer, as opposed to a Mechanical Engineer, who may not truly specialize in the subtleties of sprinkler design and testing.  Likewise, when you have a witnessed fire in a piece of machinery in an industrial setting, you may only need a top notch Mechanical Engineer who knows the equipment as issue, and not a fire cause and origin investigator.  We as the Subrogation industry need to be very conscious of the ever-increasing costs of litigation (experts cost more, depositions cost more, the legal barriers against many claims are stronger and therefore, more costly to defeat) and always need to look for a carefully orchestrated strategy to reduce the costs of your claims.  It makes no fiscal sense to recover $73,000 on a case where your costs are $48,000, when, for that same claim, a better plan from the start could have recovered $65,000 by only spending $20,000.

The Law of Diminishing Returns

Fourth, it has been my experience that many Subrogation claims do not get better factually or legally.  The value of the claim both in gross recovery dollars and in total expenses utilized to get to that recovery number is often at its highest early on in the claim.  The list of things that can go wrong is a long one:  (1) subsequent evidence examinations may not go well; (2) employees from your insured may not tell the parties the same thing in deposition they told you on the scene the day after the event happened; or (3) the Judge may decide your expert does not pass muster under Daubert or otherwise, and your case disappears completely.

For this reason, it is crucial that you have a game plan for resolution of your claim from the very start.  If you know you will have issues if you had to litigate your claim, the Insurance Claims Professional (ICP) from the company side needs to be in absolute sync with the vendors or attorneys handling the claim to develop the strategy that resolves the case before suit.  Just because the claim is a large one is not a valid reason to bypass this step.  For example, if you know you will have damages proof issues, embrace that and use this information to devalue your claim early on, and avoid the damages number getting even worse in litigation.  To the liability carrier, this makes you look reasonable and easy to work with, and that claim probably gets settled first.

Coordination

The fifth and last bullet point for discussion is coordination.  The most efficient Subrogation recoveries are the best coordinated Subrogation claims; from literally the moment the insured calls the company to report a new claim until the jury delivers a verdict.  If the time and attention are given to developing a solid coordinated effort amongst all parties to a company’s Subrogation process, you will make more money.  If you do not, you will make less.  It is truly that simple.  Do you have a list of rock solid experts in a certain state?  If not, the scramble to find an expert and the days it may take you will cost you money.  Do you have relationships with counsel who can assist you with the legal nuances of a claim from the very start?  If not, you may miss an issue and this will cost you money.  When your counsel schedules depositions out of state, does she or he bundle as many “tasks” as possible to minimize the expenses in a case?  If something can be handled by phone or video-conference for less money, do you and your vendors utilize this?  When you retain an expert, do you and your expert work closely together to develop a budget (and then stick to it)?  Do you insist on updates from counsel as events happen and adjust your outlook for the case accordingly (to head off surprises later on, which can cause delay and affect the value of your case)?  There is no one size fits all for how to coordinate a Subrogation claim, but when your claims are not being well coordinated, you will surely sense it.

The Bottom Line

The bottom line for Subrogation is, well, the bottom line.  An effective subrogation program (or stand alone claim for that matter) is a process that takes a very specific parameter (the amount paid on a claim) and applies a cost benefit analysis to it.  However, everything in between can be very complex.  In the insurance world, complexity equals higher costs, and by working towards a developed and coordinated subrogation plan, you can minimize those costs which will maximize your return on investment (your recovery!)

October 29, 2018 PublicationThe Importance and Requirement of Having a Representative with Full Settlement Authority at Mediation

Mediations are one of the most common and effective forms of Alternative Dispute Resolution.  They typically occur with an attorney, a party representative and a mediator all present at the same location.  Most mediations follow a standard procedure that begins with the mediator providing a short explanation of the mediation process, followed by an opening statement by the Plaintiff and Defendant, and then lead to the parties breaking off into caucus where the mediator will meet with each attorney and party representative to begin the negotiation process. 

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July 12, 2017 PublicationState Specific: Tennessee Addresses Production of Underwriting Files, Similar Claim Materials and Reserves in First Horizon National Corporation v. Houston Casualty Company, et al.

As a result of the coverage denial, First Horizon sued its insurers. This article will address a few of the discovery disputes that arose in the coverage case and how they might be relevant to issues that might arise in litigation of a subrogation claim.

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October 13, 2015 Publication(Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy of Butler’s Chicago office authored (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films about Civil Litigation, published in NASP’s Subrogator, Fall 2015. The article cleverly explores issues of legal ethics that arise in modern movies involving civil litigation, set in the style as written by movie critics.

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October 13, 2015 PublicationWhen is the Contract Complete? Court Rules that Statue of Repose Commences Upon Final Payment.

Recently, Florida’s Fifth District Court of Appeal reviewed the statute of repose relative to improvements to real property.

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April 01, 2012 PublicationMade-Whole Interpretations Leave Insurers Feeling Empty

There is a growing trend among state courts to interpret the made-whole doctrine in ways that have the potential to make it very difficult for insurers to effectively exercise their subrogation rights.  In recent years, state courts’ decisions have increasingly created hurdles for insurers to overcome before they are able to actively pursue recovery for payments made to their insured.  These requirements could have a potentially chilling effect on the field of insurance subrogation.

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October 01, 2006 PublicationProduct Liability: The Top 30 Hooks!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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May 01, 2005 PublicationBuilding Your Product Liability Claim: A Product Supplier's Obligations Under The Consumer Product Safety Act

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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October 29, 2018 PublicationThe Importance and Requirement of Having a Representative with Full Settlement Authority at Mediation

Mediations are one of the most common and effective forms of Alternative Dispute Resolution.  They typically occur with an attorney, a party representative and a mediator all present at the same location.  Most mediations follow a standard procedure that begins with the mediator providing a short explanation of the mediation process, followed by an opening statement by the Plaintiff and Defendant, and then lead to the parties breaking off into caucus where the mediator will meet with each attorney and party representative to begin the negotiation process. 

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February 23, 2018 PublicationSubrogation in a Machine's World - How automation and connected devices are changing subrogation investigations

When people hear the word “internet,” they usually think of search engines, funny videos, or personal interactions through social media. But the internet involves so much more. Machine-to-machine (M2M) communication represents a significant portion of all internet communications.

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July 12, 2017 PublicationState Specific: Tennessee Addresses Production of Underwriting Files, Similar Claim Materials and Reserves in First Horizon National Corporation v. Houston Casualty Company, et al.

As a result of the coverage denial, First Horizon sued its insurers. This article will address a few of the discovery disputes that arose in the coverage case and how they might be relevant to issues that might arise in litigation of a subrogation claim.

Read More »
February 23, 2017 PublicationIs It Hot in Here? Significant Recovery Opportunities with Boiler Failures

Water boiler failures provide significant recovery opportunities. By understanding how these relatively simple systems work, one can realize that recovery potential and identify the probable failures modes, skillfully directing the recovery investigation, and asserting the proper legal theories that afford recovery.

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February 22, 2017 PublicationPennsylvania – VOIDED Terms and Conditions: Unlawful and Unconscionable Exculpatory Clauses

How many of your subrogation claims have been closed because of the subrogation killing terms and conditions of a contract? A recent decision in the Eastern District of Pennsylvania, United States District Court found in favor of a subrogating insurance carrier and held that the terms and conditions barring recovery were both unlawfully drafted and unconscionable, thus allowing the subrogating carrier to move forward with its subrogation claim. State Farm Fire & Cas. Co., a/s/o Sara Rivera v. Petroleum Heat & Power Co., Inc., 2016 WL 5816182 (E.D. Penn. October 5, 2016).

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January 27, 2017 PublicationWhen Pipes Go Pop

Although we may not see the historic low temperatures associated with the polar vortex of 2014, the winter season always brings with it an influx of freeze-related claims. Notably, the involvement of Mother Nature does not automatically preclude a subrogation recovery, and these types of claims should be triaged promptly and efficiently in order to avoid overlooking subrogation potential.

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January 26, 2017 PublicationDamages Proof in Subrogation Cases

In the past few years, savvy defense lawyers have taken a more inquisitive approach on the valuation of subrogation damages across all lines of insurance. Gone are the days of assuming the damages must be right because no carrier wants to pay more than they should.

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October 13, 2015 Publication(Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy of Butler’s Chicago office authored (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films about Civil Litigation, published in NASP’s Subrogator, Fall 2015. The article cleverly explores issues of legal ethics that arise in modern movies involving civil litigation, set in the style as written by movie critics.

Read More »
October 13, 2015 PublicationWhen is the Contract Complete? Court Rules that Statue of Repose Commences Upon Final Payment.

Recently, Florida’s Fifth District Court of Appeal reviewed the statute of repose relative to improvements to real property.

Read More »
May 05, 2015 PublicationProduct Liability Blackjack (21) Ways to Win, Bust or Fold!

Strategic thinking in prosecuting or defending product liability actions often mirrors the creativity, gut-check and fortitude to play the winning blackjack hand. As in blackjack, in the litigation game, it is often not how you start but how you finish that decides the winner. Though the cards often favor the house or your adversary, playing your cards to their maximum potential yet recognizing when it is necessary to fold, is vital to smartly beating the odds. Below is a practical checklist of 21 ways to win, bust or fold in your product liability game.

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April 01, 2014 Publication"Texas Damages"

In Property Subrogation, one of the most difficult damages situationsto deal with is a commercial loss where older equipment is destroyed and that equipment is integral to the operation of a facility.  Oftentimes, the business decision is made to replace used equipment (which may not have a fair market value in the marketplace) with new equipment, to minimize the downtime and the associated business income loss.  A recent Texas case may give property subrogators some ammunition to contest how those pieces of equipment get valued for recovery purposes.

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December 01, 2013 PublicationProving Lost Profits In a Subrogation Case: It's No Easy Matter

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Winter, 2013. © Copyright 2013 by NASP. All rights reserved. Republished by Butler with permission from NASP.

As subrogation professionals, it is sometimes easy to overly focus on the liability issues in each case, leaving a thorough damages analysis for another day. However, it is a better practice to perform a complete evaluation of the legally recoverable damages early during the subrogation investigation, so that the true value of the claim can be ascertained and relayed to the subrogating insurer. This is especially so in cases where the business interruption portion of the loss is significant, since an error in proper quantification of the recoverable portion of the business interruption loss could dramatically change the overall valuation of a case -- both for settlement and trial purposes.

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April 01, 2012 PublicationMade-Whole Interpretations Leave Insurers Feeling Empty

There is a growing trend among state courts to interpret the made-whole doctrine in ways that have the potential to make it very difficult for insurers to effectively exercise their subrogation rights.  In recent years, state courts’ decisions have increasingly created hurdles for insurers to overcome before they are able to actively pursue recovery for payments made to their insured.  These requirements could have a potentially chilling effect on the field of insurance subrogation.

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April 01, 2012 PublicationWhat Nearly Two Decades as a Subrogation Attorney Has Taught Me about Product Safety

The other day when I was asked to write an article about "product safety" I pondered how to best approach this.  As we all know, what is or is not a "safe product" is often in the eye of the beholder (or which side of the "v" you are on!).  Is any product that fails even once an "unsafe product?"  If 1,000,000 items have been manufactured and "only" 73 of them have failed, is that an "unsafe product?"  What about 133 of them?  If a product fails when it was being used improperly, but it was not a stretch for the manufacturer to have anticipated this "alleged misuse", is that an "unsafe product?"  If a product has been tested by agencies and groups with an international reputation for such testing, and the product has passed, can that product be an "unsafe product?" 

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February 14, 2012 Publication"Freedom to Contract" Gives Rise to Big Recovery Opportunities from Policyholders for Self-Insured Retentions, Deductible Reimbursements, Retrospective Premiums and Loss Adjustment Expenses

Insurance policies often include language that allows insurers to recover amounts they have advanced for the insured's benefit. For instance, if the insured's policy has a SIR, the policy may contain a provision similar to the following:

We shall have the right but no obligation, in all cases,  to assume charge of the defens and/or settlement of any claim, and, upon our written request, you shall tender such portion of the SIR as we may deem necessary to complete the settlement of such claim.
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October 29, 2009 PublicationThe Daubert Tango: "Recent Developments In Fire and Explosion Litigation"

In 1923, the Court of Appeals for the District of Columbia, affirming the exclusion of an expert witness at trial, stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

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October 07, 2008 PublicationLanding the Knockout Punch: Contacting Another Party's Current And Former Employees Within the Ropes

Winning litigation requires that you and your counsel land the devastating uppercuts at the key moments in the fight. Big opportunities for critical testimony and evidence exist by pursuing permissible ex parte contacts with another party's current and former employees. The ethical ropes and practical tips for effectively contacting and interviewing such witnesses are discussed below.

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December 03, 2007 PublicationDrowning in Black Water: Water Restoration Contractors' Deviations from Industry Good Practices & Standards of Care Trigger Potential Mold Liabilities

Entry of errant water into a building or other structure can lead to serious mold problems, physical damages and substantial property and business interruption losses. This  article provides a roadmap on developing viable recovery claims against restorative drying contractors who were involved in improper and careless restoration and remediation of water  damaged property. As in any garden-variety tort claim, it is imperative that your counsel appreciate the critical importance of identifying the target contractor's vulnerable liability exposures.

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December 05, 2006 PublicationUnderwriters Laboratories—The Forgotten Island In The Litigation Seas—"Full Of Fruit"—For Bolstering Or Undercutting Product Integrity

Underwriters Laboratories Inc. ("UL") is a nonprofit organization conducting product safety evaluations. UL Marks are on 19 billion products ( www.ul.com ). As of 2005, there are more than 71,000 manufacturers producing UL-certified products and 97 countries where UL customers are located. UL publishes hundreds of safety standards and disseminates safety information globally.

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August 01, 2006 PublicationThe Big Daubert Hurdles in Fire & Explosion Litigation

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

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June 05, 2006 PublicationA Product Supplier's Liability Exposure for Noncompliance With its Obligation Under the Consumer Product Safety Act and Related alternative Statutory Authorities

Manufacturers, importers, distributors and retailers have the obligation to place only those products that are safe for use into the stream of commerce. In addition to those obvious duties, these entities also face significant duties under the Consumer Product Safety Act (CPSA) ' and other legislation and regulations enforced by the Consumer Product Safety Commission (CPSC).

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May 09, 2006 Publication"Top-Dog" Depositions The Hurdles to Overcome

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

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May 09, 2006 PublicationTaking A Closer Look For Deep Pockets

A CORPORATION is a legal entity created by filing certain documents with the state. It offers many benefits that are found in other entities, such as limited liability, centralized management, transferability of ownership, continuity, and taxation. On the other hand, some of these benefits pose problems for securing legal liability when the corporation is used as a shield to avoid liability or to perpetuate a fraud. In these cases, a victim may be left without any avenue of relief. Fortunately, all hope is not lost!

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May 01, 2006 PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

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January 03, 2006 PublicationGetting the Winning Edge: Appreciating the Permissible Boundaries, in Qui Tam and Other Litigation Contexts, for Contactiong Your Adversary's Current & Former Employees

To say the least, litigation is frequently competitive, hard-fought and fraught with many hurdles. Developing a winning case requires that you seek the edge at every step in the journey. Big opportunities for marshalling critical testimony and evidence exist by pursuing permissible ex parte contacts with your adversary's current and former employees. Below is a general discussion of the ethical boundaries and practical tips for effectively contacting and interviewing such witnesses

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October 05, 2005 PublicationCourageous Whistleblowers are not "Left Out In The Cold": Legitimate Justifications Exist for Collecting Evidence of False Claims Act Violations

It is the courage of whistleblowers, standing up in the face of great adversity and overwhelming pressure to "look the other way;' that enables the False Claims Act ("FCA") to fulfill its primary purpose of combating fraud on the U.S. Treasury. By marshalling evidence and collecting company documents, the whistleblower provides the necessary proof to shed light on fraudulent and illegal FCA activities.

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May 03, 2005 PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

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April 01, 2005 PublicationLive . . . From The House Of Subrogation!

 The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

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January 06, 2004 PublicationGoing Toe-to-Toe With Your Opposing Expert

Experts oftentimes make or break cases.  As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause.  Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert.  As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationDeveloping A Claim Of Successor Liability—A Practical Guide To Recovery When Your Primary Target Defendant Has No Seizable Assets

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationAll Is Not Lost Simply Because A Target Defendant Has No Assets—Pull Out The Magnifier And Investigate The Corporate Connections Of Your Target For Alternative Deep Pockets!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationContracting Outside The Four Corners Of The United States—A Closer Look At The United Nations Convention On Contracts For The International Sales Of Goods

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationMCS90 Endorsements Provide Significant Subrogation Recovery Opportunities

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger at drauchwerger@butler.legal  or directly (312) 462-9147

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationBig Daubert Hurdles In Fire & Explosion Litigation—Revisiting The Importance Of Testing An Expert's Theories

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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Key Points