Q: Should an agency record phone conversations with insureds in the event documentation is needed in an errors & omissions claim? What is the current best practice for storing those recordings in an agency management system (AMS)?

Response 1: Every E&O defense attorney I work with says, “The more documentation you have, the better."

The key to documenting phone calls is the “invariable practice" doctrine. That means that every call is documented every time. That's a lofty goal, but it pays off. In one E&O case, the insured alleged they called the agency to add a specific coverage. The agency disputed that and the case went to trial. Several staff testified that every call was documented. After client files were subpoenaed, the jury ruled in favor of the agency.

Response 2: If your phone system allows the ability to record selected calls, then the calls should be attached to the customer record. If your system is set up to record all calls, there is probably a feature to save all calls within that program. Rather than attaching each call, you can rely on the system to file the calls, usually by phone number. Not all systems are the same but the ability to retrieve calls for a particular customer at a later date if needed is desirable.

Caution should be used to record and save calls legally. Research your state law to determine the requirements. Some agencies play an automated message for all incoming calls informing them that the call will be recorded but employees need to state the same when making outgoing calls.

Response 3: Should you document recorded messages? Absolutely! You should document these messages, just as you do all other client communication. When it comes to lawsuits, no documentation isn't worth much. A good rule of thumb is to live by the mantra, “If it's not in the file, it didn't happen."

You should document those messages the day you receive them. If you put it off, then document after an E&O suit has arisen, it will cast doubt on the validity of that file documentation.

If your system will allow you to attach the exact file or an exact transcript of it, that's a great practice. If not, at least document it in some other way, such as file notes or an email back to the client confirming that you received the message.

I'm a huge fan of sending an email back to the client and summarizing the message they left, as well as what we plan to do with it. The benefit of this approach is that it gives the client the opportunity to correct you if you've misinterpreted their message or request. In fact, we do this for every policy change request, whether it came to us via voicemail, telephone conversation, email or personal visit.

Our system drops voice messages directly into our email inboxes. When that occurs, it's easy to attach the client's voicemail to the email I send back to them.

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