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Texas Association of School Boards Risk Management Fund

Litigation Management and Billing Guidelines

Introduction

It is the policy of the Texas Association of School Boards Risk Management Fund (the Fund) to provide it’s Members competent, cost-effective, legal representation. Texas Association of School Boards, Inc. (TASB, Inc.) is the servicing contractor for the Fund and administers claims on its behalf. The Fund seeks to minimize legal expenses to its Members by eliminating all unnecessary legal expenses and ensuring that fees charged it’s Members by counsel are appropriate and necessary.

The Fund is not an insurance company. Rather, the Fund is a vehicle for Texas school districts and selected other educational entities to self-fund their property, liability, workers’ compensation, employee benefits and unemployment compensation needs. All Fund monies are school district monies.

The Fund does not assign cases for defense to law firms that represent clients in litigation against school districts. Because of the nature of the Fund, a claim against one Member, is in essence a claim against all Members.

The purpose of these litigation management guidelines is to ensure that successful, long-term relationships can be developed and maintained with counsel retained to defend claims against the Fund Members.

Case Assignments

Generally, the Fund assigns cases to defense counsel in writing. Occasionally, because of time constraints, a case may be assigned by telephone with the appropriate written confirmation to follow. Counsel must provide a letter of acknowledgement to the person making the assignment within five days of receiving the assignment.

The Fund pays only for legal services performed after a case has been assigned to counsel by the Fund claim representatives. Should counsel receive notice of litigation against a Fund Member, such notice should immediately be forwarded to:

TASB, Inc.

P.O. Box 2010

Austin, TX 78768-2010

Attention: Director of Claims Administration
  • Litigation Status Reporting

An Initial Litigation Report (see attachment A) must be completed and returned to the Fund claim representative making the case assignment within 90 days of the assignment, along with the Case Budget Plan (see attachment B). An amended budget must be submitted, unless otherwise instructed, if counsel believes that changes in strategy may occur as a result of unusual developments that would not have been anticipated at the time the initial budget was prepared. A Litigation Status Report (see attachment C) will be required every 90 days, unless otherwise instructed, or when circumstances regarding a case (completion of discovery, offers of settlement, establishment of a trial date, etc.) warrant an interim status report. A Pre-Trial Report is due 30 days prior to the first trial setting (see attachment D). Addendums are submitted on cases that are continued and Post-Trial Report/Appeals (see attachment E) are required on all cases tried to conclusion.

Counsel representing the Fund in workers’ compensation cases at the Benefit Review Conference and Contested Case Hearing levels should submit an analysis of the disputed issues prior to the proceeding and a post-proceeding report within 15 days after the proceeding. A final report shall be submitted to the Fund claims representative within 15 days of the Commission’s determinative action. The report should include a summary of the Hearing Officer’s decision, recommendations on future handling and opinion regarding the desirability and/or basis of appeal.

All appeals of Texas Workers’ Compensation Commission orders and adjudicative determinations must have prior approval from the Fund claims representative and supervising claims manager. A closure report should be completed upon the finality of the Commission’s determinations or orders.

  • Claim File Documentation

Counsel should provide the appropriate Fund claims representative copies of the following documents:

1.All pleadings and motions.

2.Copies of all letters regarding the case.

3.Within 30 days of completion of a deposition, a concise summary of deposition testimony including counsel’s opinion of the appearance and credibility of the witness and the effect of the deponent’s testimony on the case.

4.Memoranda of legal research, including supporting statues and cases prepared for and billed to a specific claim file. The need for unique research should be documented.

5.Releases, Dismissals and Orders of Final Judgments.

6.Any other document counsel thinks is substantive to the case.

Copies of all these documents should be provided to the Fund within 30 days of completion of said documents. Copies of any of these documents prepared by defense counsel must be submitted prior to the submission of any bill for preparation of the documents or at the latest with the bill for services.

  • Case Management Practices

1.Legal Defense

Development of an effective and strategically sound legal defense is the responsibility of counsel and includes, but is not limited, to the following:

  1. Identifying and developing all liability issues.

b.Determining whether immunity may apply and promptly filing appropriate motions to have the applicable defendants released from the cause of action.

c.Raising causation issues to determine whether there is nexus between the Member’s actions and the alleged damages.

d.Analyzing the basis for all damage claims.

e.Bringing viable third-party actions and/or cross actions against codefendants, if warranted.

  1. Developing contributory or comparative negligence defenses, if applicable.
  1. Immediately identifying potential conflicts in a claim involving multiple defendants.

2.Investigations

Investigation strategy shall be discussed and jointly developed by counsel and the Fund claim representative on an individual case basis. If claim investigation is needed, counsel should request such investigation from the Fund. Fund claim representatives, investigators, or counsel will be assigned to collect statements, photographs, and other evidence as appropriate.

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3.Motions and Depositions

Counsel shall evaluate the use of motions and depositions, directing their effort toward having a positive impact on the case. Motions or depositions which do not advance the case or provide a realistic strategic value should be avoided.

Counsel should notify the Fund in writing of all potential witnesses who may be deposed. Depositions should be taken only when necessary, and the number of potential witnesses to be deposed should be minimized.

4.Expert Witnesses

Counsel should be judicious in the use of expert witnesses. Counsel should not engage an expert witness without prior Fund approval. To obtain approval, a written explanation, including the name and specialty of the witness, the reason his or her testimony or research is essential to the case, rate structure, and approximate cost of services should be submitted to the Fund claim representative. If an immediate response is needed, a telephone call to the claim representative, followed by written request as outlined above, will be acceptable.

5.Intra-office Conferences

The Fund recognizes the benefit of soliciting input from other attorneys within the assigned firm, but must limit excessive utilization of this practice. The Fund will pay only assigned lead counsel for intra-office conferences.

6.Use of Appropriate Personnel

Within a law firm, work should be performed by the lowest level of personnel (e.g. associate attorneys, paralegals, law clerks) capable of performing a given task without sacrificing the quality of service. Responsibility for the quality of the work performed remains with the attorney to whom the case was assigned by the Fund. Reassignment to other attorneys in the firm requires prior approval by the Fund. The Fund will not pay for charges associated with the training of firm personnel. The Fund will pay the partner rate for the supervising partner in each case. All other attorneys involved in a case, including firm partners, will be approved at associate rates, unless otherswise approved by the Fund.

7.Multiple Attorney Attendance*

The Fund will pay for attendance of one representative of a law firm at conferences, depositions, hearings or trials. In instances when counsel believes the assistance of another firm member is needed during a particular appearance, the Fund’s agreement to pay for the involvement of another firm representative must be requested in writing.

8.Research*

Any research of more than 5 hours must be discussed with the Fund claim representative in advance. Since assignments are made to firms that have been selected for their expertise in particular areas of law, the Fund will not pay for research which is routine in nature. Payment will be considered for extending or revising prior research to bring it up-to-date, not as if the previous research had been conducted denovo.

9.Settlement Recommendations

The Fund encourages counsel to provide recommendations for settlement. Such recommendations should be made after thorough investigation of the claim has been completed, counsel has completed development of defense strategies identifing the strengths and weaknesses of the claimant’s case, and a defense budget has been developed.

10.Attendance At Settlement Conferences and Trial

Counsel will notify the Fund claim representative of mediations or any other alternative dispute resolution conference within 48 hours of receipt of the scheduled date and time. If a date is postponed, counsel will notify the claim representative of the postponement and new date within 48 hours of receipt of the new schedule. A Fund claim representative will be present at all mediations.

When a case proceeds to trial, a Fund claim representative will be present. In those cases where a representative is not available, counsel shall contact the Fund claim representative daily with a detailed description and evaluation of the events transpiring during the trial on that day.

11.Requests For Settlement Authority

Requests for settlement authority should be submitted well in advance of a scheduled trial or settlement conference. Requests for settlement authority on a case should be confirmed by counsel in writing.

12.Settlement Checks

Requests for settlement checks must be submitted in writing. Such requests should contain specific instructions as to the amount of each check, the person(s) to whom each check is to be made payable, and complete mailing address to which each check is to be sent. Counsel should not make promises of immediate delivery of settlement checks, as preparation and mailing of settlement checks usually takes 15 to 21 days. The processing of large claim settlements may take 30 days.

13.Travel Expenses*

Travel expenses will be reimbursed according to the following guidelines:

  1. The Fund will reimburse counsel for one-half of all travel at the assigned hourly rate.
  1. Copies of receipts for all travel expenses, except mileage, must be submitted along with counsel’s billing statement. No reimbursement for travel expenses will be made when not supported by receipts.

Out-of-state travel relative to defending a claim against a Fund Member must be approved by the Fund claim representative in advance of counsel undertaking such travel.

The Fund will reimburse counsel according to the TASB travel expense guidelines.

14.Bill Format*

Billing Statements shall include the following:

a.Description of each task performed.

  1. Date on which task was performed.
  1. Time spent on each task.
  1. Identification of attorney or staff member performing each task.
  1. Hourly rate of each attorney or staff member identified on the billing statement. Level of attorney is defined as follows:

Partner:8+ years of experience

Sr. Associate:4- 8 years of experience

Associate:0-4 years of experience

  1. Itemized expenses, including dates and point to point description of any travel (include receipts for travel expenses for which reimbursement is sought).
  1. Firm’s federal tax identification number.
  • Billing Practices*

1.Billing Rates

Billing rates shall be previously agreed upon by counsel and the Fund. These rates shall include clerical support and office supplies. The Fund will not pay for any file maintenance charges. Postage charges must be itemized in order for reimbursement to be considered.

*Workers’ Compensation administrative hearings may mandate different reporting requirements. Counsel are expected to be congnitive of and comply with all applicable statutes, rules and Agency procedures.

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Overnight delivery, courier or messenger service shall only be used when necessary. The Fund will reimburse counsel for:

  • itemized long distance telephone calls,
  • photocopies (not to exceed 15 cents per copy). When a large number of copies is anticipated, the use of an outside copy service is encouraged to economize.
  • court filing fees, processing fees, and court reporter fees incurred in defense of an assigned case.
  • facsimile charges at 15 cents per page. Reimbursement for Westlaw/Lexis services will be made for the amount actually expended by the firm for such services related to the assigned case.

2.Billing Increments

Counsel shall bill time in no larger than 1/10 hour increments.

3.Frequency of Billing

Counsel shall bill the Fund every 30 days for work performed on behalf of the Fund unless a case has been closed, at which time, counsel shall immediately submit a final report and bill.

4.Copies of documents, as required under the Claim File Documentation not previously provided, must be submitted along with any bill for services.

  1. In Workers’ Compensation cases, the Fund expects counsel to comply with TWCC Rules 152.1, 152.3, 152.4 and 152.5. The Fund will pay approved fees within 10 days of receipt of an order issued by the Texas Workers’ Compensation Commission.

6.Statements cannot be approved for payment until all conditions have been met.