5 Challenges You’ll Face in Your ERISA Long Term Disability Lawsuit

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Litigating an ERISA long term disability lawsuit against your insurer can be an arduous and time-consuming task.  Your attorney must plan strategically to maximize your chances of success.  Even with the most seasoned attorney in your corner, you must still prepare to meet certain challenges.  Here are five challenges you’re likely to face in your ERISA long term disability lawsuit.

Your Insurer Will Challenge the Appropriate Standard of Review

The standard that the Court uses to review your ERISA long term disability case is critical.  Indeed, it will have major implications on your likelihood of success.   


There are generally only two ways that the Court could review your case:

  • Under the “de novo” standard; or
  • Under an “arbitrary and capricious” standard (also known as an “abuse of discretion” standard).

De Novo

The de novo standard is generally better for plaintiffs.  Under the de novo standard, the court will stand in the shoes of the claim administrator, evaluate the evidence with a fresh set of eyes, and make a new decision.  In applying the de novo standard of review, the court will give no deference to any prior determinations made by your insurer.  This usually gives plaintiffs the fairest shake in court.

Arbitrary and Capricious

The arbitrary and capricious standard is usually more difficult for plaintiffs.  Under the arbitrary and capricious standard, the court will give deference to the insurer’s determination.  The court will only overturn the insurer’s determination if it is “unreasonable.”  This creates a larger burden for you to get a favorable decision from the court.  The court can typically only apply the arbitrary and capricious standard if the Plan grants discretionary authority to the plan administrator (usually, your insurer). 


When your ERISA long term disability lawsuit is commenced, your insurer wiWitness swearing on the bible telling the truth in the court room for a long term disability litigationll likely encourage the court to apply the deferential arbitrary and capricious standard.  Your attorney will spend substantial time developing legal theories and arguments about the appropriate standard of review.  There are several contractual and regulatory arguments that your attorney may make to push for the de novo standard, but these are not viable in every case.  The way your attorney approaches this issue will depend on the unique facts presented in your case. 

Your Insurer Will Argue You Shouldn’t Get Discovery

Your insurance company will almost always argue that the court’s review of your case is limited to the administrative record, which is essentially the file your insurer maintained on your claim.  The problem with this is that the administrative record doesn’t always tell the complete story.  The administrative record may be missing material information that is relevant to your case and necessary for the court to conduct its review.

In response, your attorney may argue that you should get “discovery” to uncover information or documents found outside of the administrative record.  The discovery your attorney requests may include:

  • More information about the Long Term Disability Plan Documents;
  • Information about your insurer’s inherent conflict of interest as the dual administer-payor of benefits;
  • In rare cases, updated evidence or evidence that was not submitted during the administrative process due to circumstances outside of your control;
  • Other information to remedy any violations of ERISA’s regulations that occurred during the claims process.

The amount of discovery your case requires depends on the facts of your individual case.  The discovery process can be very time-consuming and costly for plaintiffs.  Your attorney will balance these factors will the potential value of the discovery before pushing for any discovery before the court.

Your Insurer Will Cause Delays

It’s almost guaranteed that your insurer will cause delays as your ERISA long term disability lawsuit progresses.  Your insurer may request various extensions of deadlines throughout the process that slow down the case. 

As a professional courtesy, your attorney may consent to these extension requests.  That is because if your attorney ultimately needs an extension for your case, your attorney will expect opposing counsel to extend the same professional courtesy.  If the insurer requests an unreasonable number of extensions as a delay tactic, your attorney will use his or her judgment as to whether consent should be given. 

Your Insurer Will Attack Your Credibility

Your insurer will attack your credibility throughout your ERISA long term disability lawsuit.  This can be incredibly stressful and frustrating for you. No one likes to be called a liar or an exaggerator, but that’s exactly what the insurer will do to you. 

It is difficult, but try not to take it personally.  This is a tactic all insurers use.  They see it as a routine business move. 

Every experienced plaintiff’s attorney has dealt with this before.  Your attorney will respond to any attacks on your credibility, as appropriate.  For example:

  • Your insurer may claim that you went out on disability because you simply didn’t want to work anymore.  In response, your attorney may point to your pristine work history to demonstrate that you are a hard worker. 
  • Your insurer may claim that you went out on disability because you thought you were about to be fired or laid off.  In response, your attorney may point to your career successes, bonuses, and performance reviews to demonstrate that your job was not in jeopardy.
  • Your insurer may claim that you are exaggerating the severity of your symptoms to get disability benefits.  In response, your insurer may point to the medical evidence and statements from your doctor that support the alleged severity of your symptoms.

The ERISA Long Term Disability Lawsuit Process Is Slow

It may be over a year before your ERISA long term disability lawsuit comes to an end.  It may be even longer before you receive a decision from the court.  How long your case takes depends on many different factors, including:

  • The amount of discovery that takes place;
  • How many extensions are granted;
  • Whether you choose to engage in mediation; and
  • The number of cases on the judge’s docket.

It’s natural to get frustrated with the amount of time your lawsuit takes.  Take solace knowing that your attorneys are taking the time necessary to litigate your case effectively and maximize your chances of success. 


Litigating your ERISA long term disability lawsuit will pose certain challenges.  The experienced ERISA attorneys at our firm know how to handle them.  The insurers recognize our name because we’ve been litigating these cases in the heart of New York City for over 25 years.  Contact us to discuss the best strategy for your ERISA long term disability lawsuit.


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