Insurance Company Perspective On Insurance Lawsuits – Part 4

Most insurance cases settle.  This sums up insurance lawsuits.  The State Bar of Texas has a section called the Insurance Law Section.  The Insurance Law Section puts out a quarterly journal called “Journal of Texas Insurance Law.”  A recent article discusses having an insurance company as a client and how insurance company attorneys look at lawsuit against the insurance company.  The article tells us some information about trying the case.

While most insurance cases settle.  Some are resolved at the summary judgment stage of the lawsuit.  Rarely, a case gets all the way to the courthouse.  One tested approach to trying a case where an insurance carrier is a defendant is “less is more.”  In other words, the goal is to be the voice of reason and redirect the jury away from the emotional appeals that the plaintiff can be expected to make.  The insurance company client may represent itself on TV with a duck, a lizard, an emu, or a Flo, but the cuteness of those mascots is not generally translated to a feeling of warmth toward insurance carrier defendants.

It is advised that the attorney keep a running list of potential motions in limine during the discovery phase of the case.  Discovery requests, motions to compel, and lines of deposition questions will reveal the types of evidence that a plaintiff may seek to introduce in order to color the jury’s view of your client.  Although being thorough is always a positive attribute for an attorney, be careful when relying on form motions in limine.  Courts may have standing orders governing the points raised, and judges do not appreciate rehashing issues that have already been addressed.  Similarly, it is important to narrow areas of contention in motions to avoid wasting the court’s time during pretrial hearings.  Coming to pretrial hearings prepared to argue only those points that are truly in contention will start the insurance lawyer off on the right foot with the court.

Entire volumes can be written about the importance of voir dire.  In a case involving an insurance company defendant, it is important to learn how many of the potential jurors have had experiences with insurance claims or the insurance company in particular.  It may be difficult to hear jurors express negative opinions of the client and/or the insurance industry, but it is critical to know who has the most negative attitudes and can be challenged for cause.  It is also important, when dealing with storm claims, to have a sense of what areas of the community were hardest hit by the storm so that the attorney can minimize the impact of jurors with personal experience of the event.  Voir dire is also the attorney’s chance to humanize the corporate client, and it is when the attorney makes that critical first impression to the jury.  Given the importance of voir dire, it is best to bring in help so that the attorney can make the most of the limited time he has to question and analyze jurors.  Bringing an associate with an easy-to-fill-out diagram of jurors is helpful.  Work on a system of shorthand to identify relevant items about jurors to determine the use of peremptory strikes.  Know how long the attorney will have to analyze any juror cards or information.  And try to keep in mind the number of jurors who will be seated so time is not wasted questioning people who are outside of the “strike zone” of potential jurors.  Finally, know the case law with the relevant criteria for striking jurors for cause so the attorney can articulate why certain jurors need to be struck and why plaintiff ’s strikes do not qualify.

The bulk of the insurance lawyer’s case will likely be presented through cross-examination of the plaintiff ’s witnesses.  As with motions in limine, less is more—typically, there are only a few truly key points that need to be made on a cross exam.  Make the points needed to be able to bring up in closing, then move on.  Jurors will be more sympathetic if they think the attorney is not trying to waste their time.  In many cases, the plaintiff adversely calls your corporate representative as their first witness.  As in the deposition stage, the choice of corporate representative is critical, especially if they are the first witness.  A common theme of the first-party cases that end with shocking verdicts is the jury’s perception that the adjuster or corporate representative was dismissive or uncaring toward the plaintiffs.

Like voir dire, the charge conference in a first-party insurance case merits an article of its own.  That being said, the main goal for an insurance defendant is to minimize the questions on the charge.  Both the Insurance Code and the DTPA have extensive laundry lists of potential bad acts by insurance carriers and adjusters.  Thus, the practitioner should use pre-trial motions, motions for directed verdict, and charge conference objections to limit the number of blanks in the jury charge so the jury has fewer opportunities to agree that your client did something wrong.  In closing, while the plaintiff may make emotional appeals, defense counsel should focus on carefully walking the jury through the questions of the charge.  It is important to remind the jury of the evidence that refutes the allegations and of the plaintiff ’s failure to carry their burden to introduce the evidence needed to support a verdict.  Be sure to explain, for each cause of action, what the plaintiffs needed to prove and how they failed to do so.  This is particularly helpful when it comes to boilerplate requests for damages that are, at best, thinly supported.

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