Anthem GC: In the Courtroom, Expertise Just a Bonus

Thomas Zielinski is a corporate attorney, but he would rather talk about developing rapport with a jury, or how to handle a hostile witness, than mergers and acquisitions or the ins and outs of a health insurance policy. Prior to joining Anthem as Executive Vice President and General Counsel in June of last year, he tried 80 cases to verdict over the course of his career. He still thinks of himself as a trial attorney.

He also takes hiring trial attorneys very seriously. Sometimes, Zielinski even flies across the country to watch a prospective hire in action.

“I know it’s difficult to do as a GC,” Zielinski said of his scouting trips, “but it’s important to me because we’re in certain jurisdictions that are very tough. Verdicts can get away from you if you don’t know what you’re doing.”

When he spoke to Big Law Business earlier this month, he was preparing for a trip to California. The lawyer he was thinking of hiring had a good track record, but Zielinski still needed to see him in person.

“I want to make sure that he is who I think he is,” Zielinski said.

A graduate of Albright College in Reading, Pennsylvania, and Temple University Law School , Zielinski was a partner with Morgan, Lewis & Bockius and executive vice president and general counsel at health insurer Coventry Health Care before joining Anthem. He recently spoke about what makes a good trial attorney, security breaches at Anthem, and his distaste for the law firm lunch.

Part I Excerpts:

I’ve done a lot of things in my life. I did a lot of work in the financial services sector, pharmaceuticals, and other places. But to me healthcare really is the most challenging area I’ve ever been in.

I’m more prone to hire people who are really good trial lawyers and get good results, even if they don’t have a lot of actual healthcare expertise.

I actually go watch lawyers in the courtroom to make sure I’m comfortable with their style. I know a good trial lawyer when I see him in action.

You want someone who is very focused, someone who can take thirteen issues in a lawsuit and focus on the two that will win.

Below is an edited transcript of the first installment of the interview.

[caption id="attachment_2118" align="alignleft” width="346"][Image “Courtesy of Anthem” (src=https://bol.bna.com/wp-content/uploads/2015/05/Anthem.png)]Courtesy of Anthem[/caption]

Big Law Business: You’ve been in healthcare a long time. What interested you in the industry?

Zielinski: I’m a trial lawyer. One of the big cases I tried was for an executive at U.S. Healthcare who left to go to a Big Blue plan in Philadelphia. I got a great result, and he kept sending me work. That’s how I became a healthcare lawyer. I had a client who was in healthcare.

Big Law Business: What are the most unique aspects of working in healthcare?

Well it’s interesting—when I went to Coventry it literally took me 18 months to understand the business. It’s an extremely complex area.

One, it’s heavily regulated, so there are a lot of rules and regulations, not only in terms of what you have to know, but in terms of the business model. There are so many interesting facets—actual medical trends, utilization management, cost of care initiatives, HR issues.

As a public company, you’ve got all the SEC issues. You’ve got a lot of litigation. In terms of diversity and challenges, you’ve got provider contracting, very sophisticated reimbursement models, and M&A opportunities.

So as a lawyer it’s just a very exciting place to be, because there are so many different issues that you deal with on a daily basis. With Obamacare it even made things that much more challenging, because there are more opportunities, but the landscape really changed. For a while [it] was being rolled out on a piecemeal basis, so you had to make a lot of decisions about having all the facts, in terms of what the regulations really wanted.

I’ve done a lot of things in my life. I did a lot of work in the financial services sector, pharmaceuticals, and other places. But to me, healthcare really is the most challenging area I’ve ever been in.

Big Law Business: How much do you rely on the expertise of outside counsel? How much of your expertise is in-house?

Zielinski: In terms of what I’ll call regulatory health plan business issues, it’s very important to me to have outside firms who understand the industry. And secondly, it’s very important when we hire firms that they understand our company, because you don’t want to reinvent the wheel.

So I’m willing to invest, initially, in a new firm, to undertake the effort to understand how we operate, where to go, and how to find answers to questions. That’s very important to me, because you can spend a lot of time and energy chasing rabbits down the hole because you don’t know where to go.

Now, a lot of firms out there are really specializing. For example, there are firms out there that only do ERISA work, which is great. There are a lot of sub-specialties in healthcare.

On the litigation side, I try to use someone who knows healthcare. But I’ll be honest with you — I always considered myself a trial lawyer, and the subject matter was easy to learn. Your client would educate you on the subject matter that was at issue.

So I’m more prone to hire people who are really good trial lawyers and get good results, even if they don’t have a lot of actual healthcare expertise. If you have healthcare expertise in a good trial lawyer, then that’s a no-brainer.

Big Law Business: What firms are you doing the most work with?

Zielinski: Hogan Lovells , Foley & Lardner , and Reed Smith . These three firms are our national panel counsel, so they have the lion’s share of the litigation across our book of business.

But that’s supplemented. We’re in 14 blue states, and our Medicaid footprint is a lot larger than that, so if the subject matter is a little bit more, how should I say, industry specific, then there are other panel firms we’ll go to, other than those three, to handle litigation.

In terms of non-litigation matters, we have relationships with firms for our SEC work. I have a firm I use for M&A activities, and I have two to three firms that just focus on labor issues for us. But they’re all what we call panel firms. You go out and do RFPs, and you negotiate your rates, and those are the firms to go to that everyone’s authorized to use.

But there’s always an exception process. There may be a case where there’s a particular skill set you need, or a specific geographic area where it’s better to have a regional or even sometimes local firm handle that type of case.

So it’s kind of fluid. We look at each case as they come in, and then make that decision.

Big Law Business: You mentioned the need for lawyers to be good trial attorneys, and healthcare expertise being a bonus. What specific traits are you looking for?

Zielinski: I always put litigation in two buckets. There are some firms I’ll call our litigators, who are very good on paper. They write tremendous briefs. They’re very good on motion practice. There are a lot of cases where we know that’s where we’re going to end up, and motion practice and writing ability are more important than trial skills.

In terms of trial lawyers—and maybe I’m biased, since I tried 80 cases to verdict, and I considered myself to be an experienced trial lawyer — I’d look for somebody who’s actually tried cases and gotten results.

I actually go watch lawyers in the courtroom to make sure I’m comfortable with their style. I know a good trial lawyer when I see him in action. It’s just kind of instinctive with me.

At Coventry I was responsible for all the litigation as well, so I’ve got lawyers on my Rolodex that I’m comfortable with, that I’ve seen in action. I practiced law for 20 years in Philadelphia at a national practice, so I’ve litigated against a lot of lawyers. And I had a lot of lawyers who were representing co-defendants.

But I’m getting old, and so are my contemporaries, so now I need to find people within their firms who have that skill set. You know, I’m flying out to California to watch someone try a case because I want to make sure that he is who I think he is. That’s how I do it.

I know it’s difficult to do as a GC, but it’s important to me because we’re in certain jurisdictions that are very tough. New York, California, Texas — you need to have good trial lawyers on board, because verdicts can get away from you if you don’t know what you’re doing.

Big Law Business: You said it’s instinctual, but what’s an example of the kind of thing you’re looking for in a trial attorney?

Zielinski: One is presence, a commanding presence. Two is being a quick thinker. A lawyer should be a good counter puncher, in terms of testimony. You want to see on cross that they can counter punch well, and respond to something that may come on direct.

You want someone who is very focused, someone who can take thirteen issues in a lawsuit and focus on the two that will win.

The last thing is rapport with the jury. You have to make the facts very simple and understandable. Also, credibility and likeability. I always put those together. They’re different, but they’re both important. You’ve got to have credibility and likeability with the jury.

Big Law Business: What are you doing to drive down costs with outside counsel?

Zielinski: We actually go out and do RFPs for panel counsel, and use the RFP process to get the best rates.

But we are also open to alternative fee arrangements. We do have fixed rates with some of our firms, which we pay each month on an annualized basis. It’s not dependent on volume.

There are also matters we handle on a contingency basis, and there are some that are hybrid. There may be an up-front amount, and a contingency going forward. Sometimes we pay a reduced rate with a success factor built in on the back end.

Part II of the Thomas Zielinski series will include:Zielinski’s opinions on law firm marketing, a recent data breach at Anthem, and action movies.