The risklegal difference

Mar 22
5 min read

Updated: Apr 18

A common feature of nearly all new law firms is a commitment to practicing law differently. This firm is no exception: risklegal aims to help your organization mitigate commercial risks intentionally (rather than as an a secondary service), thoughtfully (by leveraging commercial realities as much as legal procedure), and exclusively (without representing insurers).

Here are a few ways risklegal stands out:

1. Insurance law is a focus, not a side hustle

Rather than offering a menu of legal services, like shareholder disputes and regulatory disputes, the firm is focused on the intersection of insurance and contracts. That's it.

The pervasiveness of insurance means most litigation lawyers engage with insurance policies one way or another, whether they are generalists or focus on other areas of commercial law. This positions many firms to act for policyholders/insureds every now and then.

Why shouldn't the same firm representing a client on, say, a construction contract not also pursue the insurance policy related to that construction contract? This sounds reasonable, at least for an economy of resources. Unfortunately, this assumes the skills suited to a contractual dispute in construction are equally suited to the insurance dispute.

An insurer’s interpretation of a given commercial insurance policy can be influenced as much by Canadian case law and legislation as case law in other countries, historical conventions, reinsurance treaties, commercial practices, and emerging issues not specific to insurance (e.g. geopolitical events).

The challenge for firms that dabble in insurance is staying current on not only the law of insurance but also the commercial realities. Even if a lawyer is current on emerging case law, an intermittent attention to the industry may still lead to basic oversights or 'reinventing the wheel’. Yes, insurance law in courtrooms is interpreted without resort to extrinsic evidence; but out-of-court resolutions often depend on an appreciation for this ‘extrinsic evidence’.

The focus of this firm is an acknowledgment of the complex and dynamic nature of this area and a commitment to commercial policyholders that their interests are best served with this focus in mind.

2. Only act for policyholders

Unsurprisingly, many law firms rely on insurers for a steady supply of legal work, whether it is legal defence, coverage interpretation, subrogation, regulatory compliance, or policy drafting. This benefits firms by providing a high volume of consistent work, giving junior lawyers an opportunity to learn, and (for smaller firms) keeping the lights on.

If risklegal can’t keep the lights on without acting for insurers, we’ll light a candle. This is not from any particular disdain for insurers (we have relationships with insurers). This is because of ethical/regulatory restrictions regarding conflicts that inevitably operate to the detriment of policyholders.

This author, during his time in-house, has experienced instances of: Attempting to clear a conflict with numerous law firms before a matter could be opened; once a matter was opened, receiving opinions that misapprehend the law or, in one case, counsel withdrawing from the engagement altogether to act for the insurer in the same matter.

Drawing this line in the sand at the outset is important. Clients have confidence that risklegal will not have to choose sides.

3. We maintain relationships with the industry: brokers, adjusters, and insurers

A focus on insurance means time spent building relationships with brokers, insurers, adjusters, and others in the insurance industry is time well spent. This author has experienced the benefits of meeting with insurers in their Toronto and New York offices to discuss trends and pain points, as well as meeting with brokers and adjusters across the US and Canada and regularly attending industry conferences.

Again, these relationships may not make any difference to a Court of King’s Bench Justice interpreting an ambiguous policy; but they do help facilitate candid conversations that may spare a protracted dispute.

We also maintain relationships with firms outside of Canada that act for policyholders, so if your organization requires support in the U.S., Europe, or Australia, risklegal can connect you.

4. Insurance is international, so is our expertise

Consider the following scenario: A construction project in Ontario is insured by five insurers based in the United States, France, and the United Kingdom which are, in turn, reinsured by reinsurers domiciled in Bermuda and Germany. This scenario is not uncommon. Will a B.C. Court care where these parties are located? Probably not. But if a coverage issue arises on that project, having counsel in your corner that has seen similar issues play out in other jurisdictions means you're more likely to learn what barriers to recovery are specific to the facts of your matter and which may be due to broader industry trends.

The risklegal difference means experience overseeing hundreds of matters and claims implicating a diversity of works and locations: A solar project in Vulcan County, AB to a Federal building in Gatineau, QC to a luxury hotel in Orlando, FL, to a hospital in North Dakota. Serious injuries, construction defects, damage to third party property, fleet accidents, and cyber-attacks are just a few of the issues our counsel has had experience with.

5. Litigation is only one tool

The nature of insurance lawyering tilts towards the litigation lens. The prevalence of standard form contracts and brokers also means that most Canadian lawyers are exposed to insurance issues at the disputes stage. The scrutiny of policy wordings, endorsements, and exclusions is typically delegated to non-lawyers (brokers or risk managers). Rightly or wrongly, policyholders count on the representations of their brokers (who in turn count on the representations of underwriters). If this is to any party’s detriment, it’s not likely to the detriment of the insurer or broker.

In many cases, the patchwork of wordings and endorsements that become an insurance policy remain an untested hypothesis if an insurance claim never arises. This can be suitable for those with a higher risk appetite (as is skipping insurance altogether!).

Organizations with lower risk tolerance may benefit from legal advice that has reconciled their actual insurance products with their actual commercial obligations and operations.

Working with risklegal means you have counsel with litigation experience but appreciates the commercial aspects and dynamics of insurance placements that occur upstream of any claim or dispute.

6. We've worn different hats

Lawyers are not often consumers of legal services, so we can take the client’s experience for granted. We can rush to consult case law before understanding the facts, replace clients’ objectives with legal strategy, or deliver a longwinded “it depends” disguised as a legal opinion. These bad habits that overlook the client's lens can start in law school and find life in practice.

At risklegal, clients not only have the benefit of expert advice across a spectrum of circumstances, they have the benefit of counsel that has also been the client on the receiving end of a variety of legal services across North America—seeing firsthand what can impact a client’s experience and confidence. This means that any legal advice you receive from risklegal will always be contextualized in the broader landscape of your operations and business. And we understand what it's like to get a legal bill that doesn't add up.

Some final words

If you’ve made it this far, you may have noticed a common thread across these six attributes: rather than promising an encyclopedic command of insurance law or other superlatives about our advocacy that will seize the day in court, our approach and experience is meant to avoid legal issues and seek early resolution away from courtrooms.

Clients have confidence that formal dispute resolution is not taken lightly and, when necessary, will be thoughtfully pursued and regularly measured against the client's broader objectives.