Q. Should I be documenting conversations with my clients and prospects to protect myself against future lawsuits? And if yes, what guidelines can you provide?
A. Here’s a scenario that agents should anticipate: The lawsuit filed against the agent and the insurance company included an allegation that the agent told the insured the premium would never go up. The agent never said any such thing – she makes a point of telling all of her customers that premium rates are subject to future increases. But did the agent have that conversation with this particular insured? She thinks so. The carrier calls the agent and says, “You didn’t really say that rates would never go up, did you?” This is a difficult situation.
The good news, according to Stephen Serfass, an attorney with the Berwyn, Pa.-based law firm of Drinker Biddle & Reath LLP, is that the overwhelming majority of your customers will never accuse you of saying something you didn’t say. But, he cautions, if you are named as a defendant in a lawsuit just one time, the value of documenting all of your conversations with clients and prospects becomes apparent.
To better protect yourself, Serfass has provided some documentation guidelines. If you do not document conversations with your clients, and one of them accuses you of saying something you did not say, it will be your word against hers. On the other hand, if you routinely prepare a written record of your conversations with clients at the time the conversation happens or immediately thereafter, and you have your clients sign those records, you will have a compelling tool to demonstrate to your upset client that her memory is incorrect. That piece of paper, on which you invested two minutes of time, may be the tool that keeps you from being on the wrong end of a lawsuit and helps you preserve or restore a relationship with a client.
If you are convinced documenting conversations with your clients is a good idea, but you have not consistently done so in the past, two questions arise: What should I do about those undocumented conversations? What should I do to document client conversations adequately going forward?
Serfass cautions that, to some extent, undocumented conversations are gone forever. Going back after the fact and writing up what was said will not provide much protection, unless you obtain the client’s signature confirming it is an accurate recitation of the conversation. At your next appointment with the client, review the key terms and conditions of the coverage and other important items (like the possibility of future rate increases), and document what you’ve discussed.
You want to have an accurate record of who said what to whom and when the conversation occurred. To have the most value, that record needs to be created when the conversation occurs or very shortly thereafter, and it should be signed by the client.
For many agents, using a checklist is a valuable resource to ensure they address key points with respect to a particular LTC insurance policy and for ease of documenting each conversation.
Serfass warns that if you are in this business long enough, you are bound to encounter a disgruntled client. Documenting conversations will not guarantee the avoidance of disputes including litigation, but it can substantially reduce the likelihood of having a dispute.