An insurance law attorney can know Texas Insurance Code, Chapter 541 and 542 and any other statute that apply but when it comes to trying an insurance case, they need to know how to pick a jury.

Most lawyers agree that a case is won or lost during the jury selection process.  Unfortunately, the jury panel composition is unpredictable.  Further, some things are simply out of the lawyer’s control, like the amount of time  a Judge allows for jury selection, otherwise known as voir dire.  Efficient and intelligent use of time and resources during this portion of the case will always provide a positive return.  The more eyes and ears paying attention during voir dire the better.  Jury consultants can be expensive and should be considered on a case by case basis.

I.  Jury Lists – Some courts will allow the lawyers to preview a list of jurors well in advance of voir dire.  The normal practice however, is to provide the lawyers with a list an hour or two before starting.  It is not possible to know everything about a potential juror based on a half-page or full-page questionnaire, so attorneys should be looking at key indicators that may hurt or help the case.  Perhaps someone on the jury panel works in the insurance industry or has a special relationship with the defendant or their attorney.  The purpose of voir dire should be to remove jurors from the panel that will be harmful to the case.  To the extent the lawyer has hired a jury consultant, he or she should already have identified certain factors to flag when considering who will serve on the jury and who to strike.  When requesting the number of individuals needed for a jury panel, consider the venue, facts of the case, and whether the case is pending in county or district court.  Busted jury panels are less likely in first-party cases, so a pool of 50 jurors is typically more than enough.

Exhibits for a trial in a first-party insurance case need to be well thought out and planned.

Almost all courts require the attorneys to attend a pre-trial conference for the purpose of admitting or making rulings on proposed exhibits.  Most exhibits are agreed or ruled upon by the Judge at these pre-trial hearings.  Having these exhibits admitted before trial helps the respective lawyers prepare their questions and arguments with these exhibits in mind.

Here are a few thoughts to keep in mind as it relates to trial exhibits.

For Insurance Law Attorneys there are two other aspects that are important in the case. 1) opposing counsel and 2) your client.

The relationship with the insurance company lawyer makes a difference as far as how smoothly the case is processed.  Most of the lawyers involved on both sides in first-party insurance cases will have dealt with each other in other cases.

One way of making the case proceed more smoothly for both of you and your clients is getting on the phone and talking to the lawyer.   This happens less with the use of email communications but talking on the phone is much more productive and a good way to work out disputes without having a Judge work it out for you.  Getting in front of a Judge is going to cost more money and there is no assurance of the result.

Insurance lawyers know they have to look at every case as if it will go to trial.

An attorney has to always keep the client informed as a reasonable timeline of events such as the initial paperwork or discovery.  Times when to expect to take depositions and attend a mediation also should be discussed.  It seems like insurance companies have become more likely to spend significant amounts of money to defend first-party insurance cases, resulting in extended litigation.  Further, it is nearly impossible to get to trial on the first trial setting.  Never lead a client to believe the insurance company is likely to settle quickly.  Clients get impatient as time goes by.  Keeping them informed helps relieve the anxiety.

When the insurance company hires an expert, the attorney must know what the opinions of that expert and what they will testify about at trial.  This may make the difference between the expert being your worst nightmare or your best witness.  The cost of the deposition is well worth the money spent.  A lot can be learned about the expert from other attorneys who have confronted and this helps to formulate questions to be asked of the expert.  A good expert deposition can help a case get settled.

Insurance lawyers need a good process for taking on a case.  This includes a good intake sheet and a thorough discussion about the case.

I.  One issue to discuss is the number or prior claims that the client has had in the past.  What repairs were competed?  An insurance company adjuster will use prior claims or lack of repairs to their advantage if possible.  Adjusters have access to this information and will use it fruitfully for themselves.  Having copies of repair receipts and photos are very helpful for the claimant.  Sometimes an expert is needed.

II.  Inspection tends to be the part of a case that has the most varied, and often polarized account of what exactly happened to cause the claim.  The attorney needs to know if the client was present when the property was inspected.  Too many times, the adjuster acted on his own without the claimant being present.  Knowing what the adjuster did can often times help the claim.  It may increase the value of the claim or lessen it.  The insured needs to be sure and point out all the damage the insured is aware of and know whether or not the adjuster looked for other damage

Attorneys handling insurance claim denials and their clients, need to understand some basics about what needs to be done when a claim is denied.

Before reaching the court house steps, in most cases, the parties should consider possible resolutions to avoid trial.  The client may not always have the best facts, or the upper hand in negotiations, but counsel should advise the client of the potential risks and rewards of proceeding toward trial.  Ethically, lawyers have a duty to convey all offers made by the insurance company, and clients should be advised on any potential counterclaim risk, if applicable.  Texas Rule of Civil Procedure 167 may severely affect the way a judgement is handled in the event the case goes to trial and the plaintiff obtains less than what was offered.  The client must understand the risk involved.  In the end, he or she should be comfortable with any decision that is made after receiving full counseling and advice.

There is one of two things that have happened when the parties find themselves at the courthouse ready to pick a jury and present their case.  It is because 1) the plaintiff has overvalued the case, or 2) the defendant has undervalued it.  Preparation in the initial stages of the case can be just as valuable as what you do in the courtroom during trial.

Insurance lawyers know there are time limits upon which lawsuits for bad faith insurance claims must be filed.

These limitations are illustrated in the 2018, U.S. Fifth circuit Court of Appeals opinion styled, Susan Sideman; Mark Sideman v. Farmers Group, Incorporated.

The Sidemans sued Farmers for breach of the Texas Insurance Code, Section 541.  In June 2013, Farmers mailed the Sidemans an offer package including (1) notice that Farmers was  not renewing the policy; (2) an offer for a new policy; (3) a summary comparison of the old policy and the new policy; and (4) a new endorsement, prominently titled “Exclusion of Marring of Metal Roof Materials” that limited coverage to situations where a covered peril such as hail punctures a roof or renders it functionless, and explicitly excluded coverage for mere marring like denting or scratching.

Having an experienced insurance law attorney is vital.  Otherwise you can end up with a situation that occurred in the Eastern District of Texas, Sherman Division.  The case is styled, Mike and Jacqueline Sanchez v. Safeco Insurance of Indiana.

The Sanchez’s filed a Motion to Dismiss Without Prejudice.  In other words, the Sanchez wished to dismiss their lawsuit against Safeco.  However, by filing the motion “without prejudice” would allow them to refiled the lawsuit against Safeco.  For this reason, Safeco contested the motion.

The United States Fifth Circuit Court of Appeals recognizes that as a general rule, motions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.  The primary purpose of Rule 41(a)(2) is to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.

In cases involving insurance, an experienced insurance lawyer needs to be hired.  This is illustrated in an Austin Court of Appeals opinion styled, Jessica Dennis and Douglas Dennis v. GEICO.

In August 2016, GEICO sued the Dennises, alleging that a “motor vehicle owned by Plaintiff’s insured Rene Zavala … was damaged by a vehicle negligently operated by Douglas Dennis, whose negligence proximately caused the collision and damages in the amount of $10,417.28.  Plaintiff compensated its insured for the loss, thereby becoming subrogated in the amount of $10,417.28.”  The petition further alleged that, “at the time of the collision, Jessica Dennis was the owner of the motor vehicle driven by Douglas Dennis, and the vehicle was operated with Jessica’s consent and knowledge.  Upon information and belief, Jessica wrongfully and / or negligently entrusted his/her motor vehicle to an incompetent, reckless, unlicensed and uninsured driver”

The Dennises filed an answer and counterclaim asserting that it was Zavala, not the Dennises, who negligently caused the collision.  The Dennises later filed with the Court a number of documents purporting to demonstrate the damages they incurred as a result of the collision.  Douglas also filed an affidavit alleging that Zavala’s negligence caused the collision.

Bad Faith insurance claims require specific pleading in Federal Court.  This is illustrated in the Northern District of Texas, Fort Worth Division, opinion styled, Charlotte R. Carroll v. State Farm Mutual Automobile Insurance Company.

Carroll alleges:

The plaintiff filed a claim with the defendant under her insurance policy after a severe blow out on the expressway.  After several weeks of getting the run  around, the defendant deceived the plaintiff into believing a check they mailed to her in the amount of $3496.94 would completely pay for all covered repairs to the plaintiffs vehicle.  Which was more than far from the truth.