The truth is, when employers and defense attorneys work in true partnership, litigation becomes smarter, faster, and far less frequent. We have a clear message to convey: If your defense counsel isn’t part of your team, you’re doing it wrong.
The Problem: “Defense Counsel Is Not My Friend”
In some jurisdictions—California, for example—employers and claims staff have come to view attorneys as a necessary evil rather than a trusted ally.
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“Avoid the 3 Primary Reasons Injured Workers’ Hire Attorneys”
Why does this happen?
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Attorneys are viewed as friction costs, not contributors.
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Employers are wary of ballooning bills and slow-moving cases.
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Claims managers hesitate to engage legal counsel early, fearing it will trigger unnecessary costs.
This mindset fosters minimal collaboration and late-stage crisis management—when litigation is already underway, damage control is the only option.
The Shift: From Vendor to Fiduciary
It’s time to reframe the role of defense attorneys. They are not vendors, mercenaries, or billable-hour machines. The best attorneys are fiduciaries—professionals who treat your program with the same care and concern as they would their own.
In a fiduciary relationship, your attorney:
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Provides advice before the claim escalates.
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Responds to informal calls, emails, and texts without nitpicking billing minutes.
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Takes ownership of your litigation outcomes as part of your broader workers’ comp goals.
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Helps you avoid unnecessary battles—not just win them.
“Hire the lawyer—not the law firm. You want someone invested in your outcomes, your culture, your people.”
The Solution: Build a Real Team
1. Start With Early Involvement
Defense counsel shouldn’t be brought in only after a claim spirals out of control. They should be involved at the start, when the claim first shows signs of complexity or when you’re unsure whether it’s compensable.
A simple call—“What do you think?”—can make a major difference. Ask your attorney:
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Should we deny this claim?
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How might a judge view this scenario?
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Is this case worth fighting?
This guidance shapes your strategy and gives your team clarity on what to document, investigate, and communicate.
2. Use Your Attorney as a Strategic Advisor
Smart employers don’t just use attorneys for courtroom appearances. They consult them on:
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Medical provider selection
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Independent Medical Exams (IMEs)
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Early return-to-work plans
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Witness preparation
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Social media investigation strategy
Think of your attorney as a coach, not just a player. When they’re looped into decisions early, they can help you stack the odds in your favor long before you ever see a courtroom.
3. Demand (and Reward) Fiduciary Behavior
Not all attorneys are created equal. If your lawyer is billing aggressively, opening files unnecessarily, or failing to align with your goals, it’s time to re-evaluate.
Choose counsel who:
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Answers calls without opening a billing file.
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Attends claim reviews or “roundtables” as a proactive partner.
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Helps your team develop strategy, not just paperwork.
“If you’re afraid to call your attorney because of billing, you have the wrong attorney,” Stuart Colburn bluntly stated during the training.
4. Foster Relationship Continuity
The relationship should feel like a long-term partnership, not a transactional service. Build consistency:
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Use the same attorney or small team for ongoing claims.
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Debrief cases together, learn from outcomes.
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Include your defense counsel in strategic planning and training.
When your attorney knows your facility, your culture, your values—they’ll represent you more effectively, persuasively, and personally.
What a Great Partnership Looks Like
Let’s imagine two scenarios.
❌ Scenario A: The Adversarial Model
An employer holds off calling the attorney. The adjuster handles it solo until litigation is inevitable. A defense lawyer is brought in late, with minimal understanding of the injured worker, the job, or the employer’s return-to-work philosophy.
By the time they prepare the case, it’s reactive, expensive, and poorly aligned with employer goals.
✅ Scenario B: The Ally Model
As soon as the employer sees red flags (e.g., vague injury report, delayed treatment, combative tone), they call their defense attorney.
The attorney gives input on documentation, helps draft communication, suggests a reputable IME, and flags potential credibility issues. Weeks later, the claim is either:
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Closed quickly and fairly
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Or denied with airtight documentation and strong evidence
Either way, litigation is minimized—and if it does happen, the team is ready.
Final Thoughts: The Power of a Unified Front
You don’t build a best-in-class program by outsourcing responsibility to an attorney you don’t trust—or one who doesn’t understand your business. You build it by partnering with legal counsel who:
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Shares your values
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Understands your goals
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And is willing to fight only when it’s necessary
Keep this in mind: “When you hire the right attorney and treat them like a teammate, you win most of the battles you never have to fight.”
Michael Stack, CEO of Amaxx LLC, is an expert in workers’ compensation cost containment systems and provides education, training, and consulting to help employers reduce their workers’ compensation costs by 20% to 50%. He is co-author of the #1 selling comprehensive training guide “Your Ultimate Guide to Mastering Workers’ Comp Costs: Reduce Costs 20% to 50%.” Stack is the creator of Injury Management Results (IMR) software and founder of Amaxx Workers’ Comp Training Center. WC Mastery Training teaching injury management best practices such as return to work, communication, claims best practices, medical management, and working with vendors. IMR software simplifies the implementation of these best practices for employers and ties results to a Critical Metrics Dashboard.
Contact: mstack@reduceyourworkerscomp.com.
Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/
Injury Management Results (IMR) Software: https://imrsoftware.com/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.
