Finance Monthlyhad the pleasure to speak with Tracy Alan Saxe, President and CEO of Saxe Doernberger and Vita P.C. (SDV) - an insurance coverage practice firm that represents policyholders in insurance coverage matters. With offices in Connecticut, Florida and California, the firm advocates across the nation to resolve disputes with insurers on all lines of coverage, including general and professional liability, commercial property, business interruption, directors and officers, and pollution coverage. Below, Tracy tells us more about it.

Your career began as a general litigator – can you tell us about that experience? What drew you to the insurance field?

I began my career at a small general practice firm of less than 20 lawyers, in Stamford, Connecticut. There, I tried many cases of all types – both civil and criminal. Beginning in the 1980’s, I worked in insurance coverage doing asbestos insurance coverage work. I began working in this area after a friend of mine from law school who was in-house counsel at Combustion Engineering (later owned by ABB) asked me if I was interested in doing insurance coverage work. At that time, they worked on a lot of asbestos claims and insurance coverage disputes. Initially, I thought that it sounded boring, but once I began doing insurance coverage work, I realised that I loved the intellectual challenge that came with it and started turning away other types of work. By the 1990s, I was doing insurance coverage work to the exclusion of all else. I found insurance coverage to be the most interesting and exciting type of work that I’ve had the chance to do – the exact opposite of what I thought it would be!

It’s been three decades since that day and I haven’t looked back! I find it very exciting to work in this field, on behalf of policyholders. I take great pride in the fact that we level the playing field for policyholders who are up against insurance companies whose sole focus is to use their vast resources to find the areas of a policy that reduce coverage. It’s much more rewarding to be fighting for David than Goliath.

By 1994, I was Co-counsel on a major coverage matter with Anderson Kill and after a couple of years, they asked me to open their Connecticut office for them - something that I happily did. After about three years, it became clear to me that there was a better way to service our clients. This area of law benefits from an efficient, creative and nimble organisation that a large firm typically does not provide. In 1996, We changed the name of the firm, but everything else stayed the same. We started with three lawyers, and today we have 28 lawyers in three offices nationwide.

Over the years, we’ve seen considerable organic growth and we continue to expand. The other very exciting thing about doing insurance coverage work is dealing with liability policies. A liability policy is when Person A is bringing a suit against Person B and Person B is then seeking insurance coverage for that suit. These are called third-party liability policies that are supposed to provide for the expense of Person B’s defense fees and to pay for any settlement or judgment against them. In those matters, we get a bird’s-eye view of the strategic decisions about what goes on in the suit against Person B, which is defended by a different set of lawyers. Our goal is to get the insurer to pay the lawyers’ fees, as well as our client’s settlement. This dynamic gives us the opportunity to work with lawyers all over the country who are very good at their specific field, but don’t do insurance coverage work, adding to our strategic ability.

How can potential insurance disputes be minimized in relation to coverage, so that litigation can be avoided?

There are many ways to do this. Thoughtful strategies on the purchasing side of insurance are important. When it comes to commercial property coverage, we make sure we’ve figured out what the client’s business interruption valuations are. In other words, what type of losses they are likely to sustain because of a business interruption of any sort, making sure they get proper coverage for that. Then, our lawyers look at the actual policy language, with the claim scenario in mind, to make sure that the endorsements give the client the coverage that they expect. In addition, we review your contractual relationships with vendors, customers, sub-contractors, sub-consultants, landlords, tenants, or any variety of contractual relationships, to make sure they have properly specified the insurance coverage that is required of them and to what extent they are required to be an additional insured, to what extent they expect indemnification and the opposite. This is to say to what extent they are providing additional insured coverage to other parties and to what extent they indemnify them, making sure that any indemnity they give or get is actually covered by the respective insurance policy.

On the other side of a litigation avoidance is for our lawyers to come in before bringing any sort of suit against an insurance company, making a thorough examination of where the coverage is and making a thorough rebuttal of denial letters. We work with our clients’ insurance broker to approach the resolution of the matter, in a business-like environment rather than a litigation setting. We try to help them understand the facts, laws and policies that apply and present this in a cohesive fashion so they can put their best foot forward.

What strategies do you employ to successfully defend against a coverage issue?

The most important thing is a detailed understanding of all the key issues and the policy, what laws might apply in which state and where the suit might be brought. Most of the cases that we work on are very large and the way we look at each case is very strategic. When compared to typical litigation, our work is more like three- or four-dimensional chess. For instance, it is very common that the insurance policy we are fighting with the insurance company about has ‘no choice of venue’ or ‘choice of law’ provisions. Our clients are almost uniformly national or global entities which means that the lawsuit can take place anywhere in the country or in other parts of the world as well. The law that’s going to apply could be determined differently in each jurisdiction where the suit might be brought, thus, what we often end up doing is looking at anywhere from four to seven issues that might decide the outcome of the case, before we even decide whether a suit should be brought. We look at each issue under the various different laws that might apply in the specific jurisdiction and then make a strategic determination of where a suit should be brought - if it needs to be brought.

We also need to be fully prepared with the facts that support our position.

At SDV, we find that the quickest settlements come when we are fully prepared to aggressively litigate a case. If not handled aggressively or if you don’t have a comprehensive strategy to start with, cases tend to drag on and become very, very expensive. This is where SDV’s experience as trial attorneys adds great value to our clients. In this area of law, it is critical for clients to have a firm that has experienced general litigators who have tried cases to verdict representing them from Day One. Many cases in this area of law are multi-dimensional, and they can move through a number of stages in litigation. A client needs to know that the firm representing them has attorneys that can build a successful case with trial in mind.

How is mediation used to resolve disputes within the sector?

We find that many cases are helped by mediation and if it’s used at the right time, an early resolution is possible. That’s because many firms do not appreciate that the mediation process is not always a zero-sum game. If used strategically and timed correctly, mediation can help both sides understand their cases first, which in turn, helps both sides begin to see the opportunities where resolution is possible. Mediation is very common in the sector - probably almost every case that we work on involves mediation. Some cases could even require more than one mediation (with a third-party mediator) or a court- side mediation conducted by a magistrate or a judge. It has also become a common practice for us to go through these dispute resolution processes without any suit pending. We often have face-to-face negotiations and include mediation as part of this process.

It is critical for clients to have a firm that utilises this alternative dispute resolution process in a strategic and effective way. Once again, it is helpful to our clients that our partners came to this area of law with decades of experience resolving civil cases through mediation.

What motivates you about working within the field? What are your goals for the future?

I find it very exciting to work in this field, on behalf of policyholders. Typically, my corporate clients are busy working on other things and insurance is not their day-in/day-out business, and neither is litigation. Insurance companies on the other hand are solely focused on insurance, so they are naturally better prepared for this battle than the policyholders. I take great pride in the fact that we level the playing field by coming in with the type of expertise that matches or exceeds the insurance companies’ own expertise on insurance coverage disputes.

Our goals for the future is to continue to build our high-quality clientele and reputation for doing high-level, complex insurance coverage work on behalf of policyholders.

Contact

Saxe Doernberger & Vita, P.C.

Website: http://www.sdvlaw.com/

Email: coverage@sdvlaw.com

Phone: 203-287-2100

Marlene de Sousa Teixeira is Founding Partner of Teixeira & Guimarães, specializing in Banking and Finance and advising and representing both national and global companies. Marlene believes that today’s society needs focused, assertive and faster answers, and that the standard model of a full-service legal firm is becoming less attractive. Here she offers her insights into dispute resolution in Portugal and the challenges that her clients face.

Can you provide a brief overview of the dispute resolution process in Portugal?

The dispute resolution process in Portugal, from a technical point of view, has considerably evolved in the past. Being from a different nature when compared to common law countries, the process is based on Civil Law and its general and abstract legal standards apply to generality and abstraction of situations and where judge-made law has a different value than that of common law countries. This results in better legal certainty in regards to the different kind of economic players, since the kind of interpretation of the ruling is also determined legally.

In regards to less positive aspects, in Portugal, we are faced with frequent delay in the delivery of verdicts. However, this does not mean the decisions are more or less fair, or that the quality of the verdicts is not good enough.

How important can it be to resolve disputes as quickly as possible? What are the challenges you face as a lawyer tasked with understanding the technical nature of a business so that a speedy resolution can be found?

The resolution time of a dispute should always be a variable to be taken into account in all matters that relate to coming up with a solution. Understanding the technical nature of a business will not help you make a faster or slower decision. It is clear that if you understand the core of a business, you are going to be assertive and efficient, but the problem is not going to be settled faster because of your know-how. Yet, the know-how will provide you with several other advantages and will introduce you to more hypotheses.

Which types of disputes are you normally called upon to help resolve? How do you develop the best strategy for resolving a dispute?

Usually, I am called to intervene in cases of financial, banking and civil nature – that is my main area of expertise. In fact, T&G was the first law firm in Portugal to be certified by the new standard EN NP ISO 9001:2015 within credit litigation.
Regarding the strategy procedures, the best way to think about it is getting to know the interests in a dispute, because a good strategy doesn’t necessarily mean a winning strategy. In many circumstances, a good strategy means acting in a certain way, regardless of the verdict.

Are there any business sectors that are particularly prone to commercial disputes? What do you attribute this to?

In the past few years, Portugal has witnessed the development of our financial industry. A number of national courts are clogged with mortgage foreclosures and debt recovery lawsuits on unsecured credits. It is clear that a lot of these litigation proceedings were due to the economic situation.

Although this has improved in the past few recent months, it is easy to identify a pattern and easily predict that lawsuits related to foreclosures or debt recovery will definitely continue to be relevant.

Website: http://www.tesg.pt/

Ijeoma Ononogbu is a dual qualified lawyer – a barrister & solicitor of Nigeria and a solicitor of

England & Wales - a London-based solicitor in international dispute resolution. Ijeoma works as an arbitrator in international commercial arbitrations and investment arbitrations.

She serves as the Chartered Institute of Arbitrators delegate to the United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration Conciliation) Dispute Settlement and is the CIArb delegate UNCITRAL Working Group III (Online Dispute Resolution). As a thought leader in the sector, over the next couple of pages Ijeoma offers a valuable insight into alternative dispute resolution practices, trends and future developments.

Which type of dispute resolution process would you say are most commonly used to resolve disputes in England? How do these differ, when compared to the dispute resolution trends in Africa?

 Dispute Resolution processes include litigation and arbitration. These two are referred to as adjudicative processes and are contentious. On the other hand, there is ADR, which means Alternative Dispute Resolution, usually considered as Consensual processes, such as collaborative law, mediation, conciliation, negotiation, facilitation and other hybrid methods of consensual process.

Each case has its specific features, and there are many cases where a different mechanism has been adopted in England. Apart from litigation, which involves court trials - a process considered undesirable by many people. Private arbitration is the most common form of dispute resolution process for complex and high-value cases in commercial disputes; while mediation is mainly used for domestic and low-value cases. However, as a general rule, the expectations of users in the dispute resolution process and the enormous finances involved makes arbitration the most commonly used mechanism in England.

Due to the variations in the legal systems on the Africa continent, the law used will fall within either civil law, common law, statutory law or religious law. Of the 54 African countries, 19 are Commonwealth countries - subject to the Common Law. As such, the dispute resolution trends in Africa are mostly litigations, negotiations, conciliations, arbitrations, and mediations. Arbitration has gained momentum in Africa, with countries such as Nigeria, Mauritius, South Africa, Kenya, Angola and Ghana taking the lead.

When compared to the dispute resolution trends in Africa, I would say that there are many similarities with England.

However, dispute resolution in England differs to some extent, when compared to the dispute resolution trends in Africa. The English-speaking States’ dispute resolution patterns are in conformity with the Common law, while the French-speaking States are the  Organisation pour l’ Harmonisation en Afrique du Droit des Affaires ( OHADA). The OHADA objectives are the implementation of a modern, harmonized legal framework in the area of business law, aiming to promote investment and develop economic growth. Therefore the dispute resolution trends on the OHADA States are tailored towards the objectives of OHADA. The commonality in both the English and French speaking States in Africa is the existence of customary laws, which inculcates the resolution of disputes by the eldest male or current head in the rural areas. The use of customary law, regardless of State, is a unique process peculiar to Africa in the resolution of disputes. The practice is widespread regardless of whether we look at an English speaking or French speaking State.

How do you choose which method of dispute resolution is most appropriate?

 I choose the method of dispute resolution most suitable for a case based on value, commercial aspect and the entities involved, and jurisdiction. The disputes I am involved in are usually of high value and cross-border commercial matters, which includes work for claimants and/or respondents. The most appropriate dispute resolution process is usually arbitration. The arbitrations that I assist with cut across jurisdictions around the world – I frequently work in New York, California, Vienna, Lagos and South Africa.

The arbitration process follows one or more rounds of written pleadings, followed by one or more rounds of factual witness statements and expert reports. They are typically consequently followed by an oral hearing, followed by a written closing statement.

What motivates you about working with dispute resolution?

 I am motivated by working in dispute resolution because of my social justice stance on fairness and personal intellectual interest.  I like and enjoy dispute resolution because there is always a number of challenges that need to be addressed, both legal and factual issues. Subsequently, I have become a passionate supporter of arbitration and ADR. As such, I am committed to the promotion of arbitration and ADR. I enjoy working as an international arbitrator because the disputes that I work on are widely varied. Most importantly, is the sense of satisfaction and accomplishment I feel when I see the parties getting justice.

I am appreciative that ADR and arbitration are seen as effective means of dispute resolution. Gone are the days when litigation was seen as the sole means of resolving complex disputes.

Additionally, I am genuinely impressed with the increase in the number of female practitioners in international ADR and arbitration field. I encourage women to continue to equip themselves with the required qualifications, skills and training for opportunities as they arise. I am glad many law firms and organisations have signed the Equal Representation in the Arbitration Pledge.

How did your career path lead you to this area of specialism?

My career path to dispute resolution is quite interesting. Like many young people, I left school undecided on a clear legal career path. Upon qualification as a solicitor in 2008, I went on to get an LLM in 2011 at Queen Mary, University of London. While I was at Queen Mary, after auditing, I realized that international dispute resolution was my area of interest, with the emphasis on commercial litigation and arbitration and I stuck with it. I simply read and soaked in all information on dispute resolution and then I went on to formalize my knowledge of arbitration by obtaining a recognised qualification. Accordingly, I completed the Award writing examination of the CIArb and consequently passed a further examination and in 2014, I became a Fellow of the Chartered Institute of Arbitration (FCIArb).

Can you please give an example of a tough dispute and the challenges faced?

 Every dispute has its own challenge - do bear in mind that virtually all disputes are tough in some way.

I remember earlier in my arbitration career, an arbitration case in California where as Counsel I was drafted in to attend an application. The opposing Counsel turned up very late. When the Counsel eventually turned up, we realised that there was an obvious distinct understanding of the very different ways as to how the arbitration should be administered. The old timetable resulted in lengthy delays with the tribunal inevitably realising that there had to be an agreement on how to address this. Eventually, the arbitral tribunal decided to disregard the old timetable and quickly agreed on a new timetable, with the tribunal left with a few options, considering the application for the arbitration involved complex legal issues. Interestingly, the opposing counsel was an arbitrator with extensive experience in the US. Fortunately for me, the arbitrator was not taken in by opposing counsel credentials and correctly decided the application in my client’s favour.

Are there any groups or lobbying activities you are involved in that help you push the boundaries of ADR?

 An ADR group which I am involved in, is the All-Party Parliamentary Group (APPG) on ADR. This group brings together individuals and organisations from outside Parliament, interested in dispute resolution, civil justice reform and alternatives to court to discuss and explore ADR. The APPG on ADR organises regular sessions in The House of Commons, Westminister.

As a thought leader, do you believe there is potential for further development in the ADR practice?

 Yes, there is further room for development in the ADR practice. Technology has permeated all facets of human development such as online financial trading, online shopping, and online banking. The potentials for online dispute resolution (ODR) are enormous. ODR is an evolving area of ADR. I was part of the UNCITRAL group in 2016, which submitted a draft report on the implementation of a globally acceptable ODR Technical Notes to the United Nations General Assembly. On the 13th December 2016, the UN General Assembly endorsed the UNCITRAL Technical Notes on ODR. The endorsement of the ODR Technical Notes by the UN has set a foundation for its incorporation in transactions, both for consumers and businesses; a good step in the right direction. In the UK in 2016, the creation of Her Majesty Online Courts (HMOC) was announced for Low-Value Civil Claims. The creation of HMOC will invariably lead to the growth and development of ODR.

Do you have a mantra or motto you live by when it comes to helping your clients?

 Consider the provisions of the arbitration agreement, including any arbitration agreement, including any arbitration rules and/or the lex arbitri and take care to establish what the local practice and standards are.