David Attisani is a partner in Choate Hall & Stewart’s re/insurance group and the first ever Boston attorney ranked nationally by Chambers USA in insurance/reinsurance. He was one of Law 360’s “10 Most Admired Insurance Attorneys in America” (2010), and is one of only 12 leading reinsurance lawyers in the Legal 500’s “Elite” category (2016-2017). David graduated from Williams College and Harvard Law School and studied English literature at Oxford University. He served as a law clerk in the SDNY and as district attorney in Boston, Massachusetts, where he tried 19 cases to verdict.
What attracted you to a career in insurance and reinsurance law?
I began my career as an aspiring product liability lawyer. A large reinsurance case came into the office on appeal to the First Circuit, and I was staffed on it as a first-year associate. I discovered that, in addition to my long-standing interest in contract law, my background resonated with the culture of the reinsurance market. I had lived in Margaret Thatcher’s England during the mid-1980s, and developed affinities for English literature, history and pop culture. Island culture also very much appeals to me, and I quickly became interested in the Bermuda market as well. My business travel to both London and Bermuda began in the early 1990s. I’ve since worked in Istanbul, Munich, Paris, Dublin and Barbados as well.
How has the focus of your work changed over your career?
I’m not sure that my focus has changed materially over the past 26 years, but the complex of risks in my practice has certainly expanded dramatically. When I started, our practice was heavily focused on longtail asbestos, pollution and health (APH) risks. My practice today reflects the far greater diversity of matters that pervades the reinsurance and coverage landscape. Over the past several years, I have served as lead counsel in matters involving 9/11; Hurricanes Harvey, Wilma and Katrina; Superstorm Sandy; variable annuities; the “Big Dig” tunnel collapse in Boston; an Obamacare reinsurance dispute; opioids; an engineering flaw in a Turkish oil pipeline; the Las Vegas shootings; industry loss warranties (ILWs); and other diverse matters. Some of my colleagues have also worked on these losses. My focus remains on top-tier evaluations of coverage problems; quality trial work; and close relationships with clients – many of whom have become close friends over the years.
How has the use of arbitration developed within the insurance and reinsurance field in recent years?
Arbitration has evolved in many measurable respects, particularly in the reinsurance world. First, arbitration proceedings are far more formal and, in the parlance of the industry, more “trial-like” than they were a few decades ago. As a former federal court clerk and district attorney, I’ve always believed that evidentiary standards and disciplined cross-examination enhance the reliability of evidence presented to a trier of fact, so I’m not averse to this development in the abstract. Second, costs have increased as a result of the first point, and it behooves all of us to search for means to control them and render arbitrations more svelte and cost-effective. Third, all participants – arbitrators, clients and counsel – are more sophisticated, which makes for more focused proceedings when an umpire is willing to take charge and push the parties in that direction. Fourth, some arbitrators are more receptive to bifurcated proceedings and/or summary process as a means to streamlining disputes. Fifth, beginning in the early 2000s, courts became more involved in policing arbitrator disclosures and qualifications.
What effect have changes to the training of insurance adjusters have on the market?
Like all markets, insurance companies and reinsurers generally have less time and resource to expend on training claim handlers. I would be remiss if I failed to acknowledge that this is a vast generalisation, and I know that some carriers continue to invest significantly in this area. On the whole, however, claim handlers receive less training – although, at some companies, that training is more focused and specialised in a particular market space. In some cases, less experienced handlers rely more on their managers and/or outside counsel to assist them in making settlement and other recommendations to their employers. On-the-job training and mentorship remain critical to the success of any claims department.
Will the subject matter of losses deemed worthy of dispute widen?
As mentioned above, I believe that the subject matter of losses meriting formal dispute resolution has already expanded. At the same time, however, the quantum of loss or injury needed to trigger a formal dispute has been elevated. Variable annuities represent an excellent example of both phenomena. For many years, they were slumbering, giant maths problems – expensive Gordian knots waiting to be disentangled by cooperative actuaries at multiple companies without much outside lawyer involvement. Although many such matters are still resolved in that way, more of these cases have found their way to formal disputes, which is no surprise in light of the prodigious dollar amounts often in dispute. Smaller matters are still, of course, arbitrated and litigated but often in alternative forums such as one-day “winner takes all” oral arguments, abbreviated single-arbitrator proceedings, mediation or other ADR.
How does Choate Hall & Stewart distinguish itself from competition?
I believe that the hallmarks of my practice, described above, help to highlight Choate’s strengths and the nuance of our product across all practice areas. Our goal is to do highly focused, top-quality work that is tailored to a client’s specific needs and objectives, and to provide the best overall client experience (service, value, results and communication) available anywhere. In order to do so, we need to build depth into our core practice areas – including re/insurance – and avoid the temptation to be all things to all people. We offer services only in areas of demonstrated expertise and market leadership, and we take great pride in the quality of our work and the depth of our knowledge and talent of our team. We also travel well. As noted, I’ve worked in Istanbul, London, Bermuda, Barbados, Paris, Munich and all over the United States.
What advice would you give to someone looking to pursue a career in the field?
My best advice is to keep an open mind as you embark on your first few years of practice. While developing your research, writing and oral advocacy skills, look for areas of resonance with your personal history and proclivities. This is a long way of saying that, if you like something, you’ll very likely do it well. I discovered, among other personal traits I hadn’t much considered in law school, that it was very important for me to find a platform that would permit me to be entrepreneurial and to build a practice that reflected my professional values. In order to do so, a young lawyer needs to identify those values and find a firm willing to invest in his or her efforts to grow a client base. Choate is a unique and talented firm and it provided that platform for me.
Where, in your view, does the future of insurance and reinsurance lie?
There will always be a need to backstop risk and, although a number of different alternatives have been developed – including self-insurance and various financial vehicles – traditional insurance and reinsurance markets will continue to work for their subscribers. In this context, “work” includes the atrophy and ultimate failure of products that do not serve their target markets or which ultimately are inappropriately priced. Having witnessed a number of evolutionary market trends over the past two-and-a-half decades, I also believe deeply in the abilities of our market professionals to adapt and fashion creative solutions. When those solutions are challenged by a loss that threatens to exceed their capacity or tests the words used to express the relevant coverage, reinsurance and insurance coverage lawyers will continue to support the market. I am deeply grateful for the many clients (approximately 66) who have involved me and us in their important and strategic matters – including a few who have been with me for upwards of 20 years.