To mitigate the explosion of nuclear jury verdicts—which topped billions of dollars last year—insurance companies need to take a stand to meaningfully impact the U.S. tort system.
Executive SummaryThe impact of the coronavirus on the court system is yet to be determined, but in the days before many states started postponing jury trials, Tyson and Mendes Partner Robert Tyson Jr. reflected on recent trends in litigation, the factors fueling “nuclear verdicts” and what P/C insurers could do to stem the tide. A key step in the new playbook—drop the “this is how it’s always been done” mentality and the pattern of not accepting responsibility.
The most effective way to do that is through your defense counsel. It really is as simple as asking your defense counsel to focus on preventing nuclear verdicts. You just need to give them the tools and incentives do it.
A Brief History
What has changed in the last 10 years to trigger such excessive jury awards?
In 2009, two big things happened. First, a book titled “The Reptile Theory” was published. The book describes a tactic in which plaintiffs’ attorneys spark the “fight or flight” mentality among jurors so they decide cases based on emotions rather than the facts. The book changed the way many plaintiffs’ lawyers try cases and taught them not how to garner sympathy from a jury but how to get them angry.
While the plaintiffs’ bar was revolutionizing the way they try cases, other global circumstances were fueling change.
The Great Recession of 2009 hit the world’s largest financial institutions hard, including insurance companies. What did insurance carriers do in response? What any prudent business would do: focused on cutting expenses. In addition to layoffs and office closures, there was a movement to reduce defense costs.
As a result, defense firms have dramatically changed the way we do business. Defense firms have implemented new billing guidelines, electronic billing procedures, audits, appeals, budgets, reverse rate auctions, rate freezes, metrics, case cycle times, and a whole host of litigation management initiatives and cost savings. None of these were the ideas of defense lawyers or something we learned in law school. No, the insurance industry requested outside counsel focus on defense costs, and we listened.
Yet, while the defense bar focused on reducing defense costs, plaintiffs’ lawyers have been revolutionizing the way they try cases—achieving nuclear verdicts at an alarming pace.
Now the insurance industry must act.
Insurance companies are not to blame for nuclear verdicts, but they do have the power to effectuate change. If you want to focus on indemnity—specifically, runaway jury verdicts and social inflation—then do it. Your defense firms will listen and the tide will change on nuclear verdicts.
But what can you do? Insurance professionals across the country are scratching their heads at the almost daily eye-popping jury verdicts. There are many things contributing to the explosion in nuclear verdicts that insurance companies cannot control, including social inflation, litigation funding, plaintiff attorney advertising, lack of tort reform, anti-corporate sentiment, generational issues and many other macro issues.
Thankfully, nuclear verdicts can be stopped at the trial level, and insurance carriers can stop them sooner rather than later. You have the power to bring about change through education and compensation.
Everyone, including in-house and outside counsel, as well as claims professionals, must be educated on how to avoid nuclear verdicts. They must understand what causes jurors to award runaway verdicts, and they must learn how to prevent them. Just like there is a pattern in most nuclear verdicts, there is a formula for preventing them. Yes, there is a series of methods that must be applied in defending every single jury trial to avoid nuclear verdicts.
Why? The plaintiffs’ bar has created an approach to trying cases that assumes the defense will do the same thing it always has: fight everything, accept responsibility for nothing, and never talk about the toughest parts of their case, including money. There is comfort in this approach for the defense industry. This is how it has always been done. But the plaintiffs’ bar is onto you. Keep using the same approach at your own peril.
What fuels a jury’s anger? This is key. Very often what will make a jury angry has nothing to do with the subject of the lawsuit. It will not be about if your insured’s truck went through a red light, for instance. It will be that your insured failed to train the driver a year earlier on the dangers of going through red lights. Or that your insured’s employee handbook did not explain the dangers of going through a red light. Or that your insured’s background search did not detect that your driver had gone through a red light once before 10 years ago.
All of these things trigger a jury’s anger and have nothing to do with whether the light was red or green.
Ask your claims professionals and counsel what will get the jury angry. If they cannot answer this question, you should be concerned.
Plaintiffs’ attorneys claim to be fighting for justice. Yet, if they really want justice for all, and not just their clients and themselves, why aren’t they offended by clearly unjust awards of up to $100 million plus? They are not disturbed by this because of their own payday. The bigger the jury verdict, the bigger their paycheck. Plaintiffs’ lawyers are paid on a contingency of the verdict, typically 40-50 percent of the award. Plaintiffs’ lawyers have a very clear and compelling financial reason to win.
While a defense counsel does not have a financial incentive to win, there are other motivations—pride, hope of additional work, job satisfaction, etc. The lack of direct financial compensation for winning brings to mind an old adage accepted as truth in the defense industry: “Isn’t it great that win or lose, your clients stick by you?”
If you want to change the behavior of your defense counsel, why not incentivize them? If you want them to win big jury trials, why not pay them more for winning a $50 million brain injury jury trial than for preparing a litigation budget to comply with your litigation management guidelines?
Consider a success fee or a contingency fee—or both—for a big trial win. If you want your defense counsel to focus on indemnity, why not financially incentivize them to do so? You have the power to control how your defense counsel spends their time and resources. If anything has been proven in the last 10 years, we listen to you. And I now have the metrics to prove it.
There are also some very specific things that can be done right now in every jury trial across America.
Make sure you and your defense counsel are showing the jury you care. That’s right, to defuse juror anger, you must show the jury you care for the plaintiff. How do you show you care? Accept responsibility in every case.
This may be anathema to many insurance executives and defense lawyers, but it is always wise to accept responsibility for something. This does not mean admitting full liability, or even any liability. For example, the defense can accept responsibility for employee training practices, following traffic laws or putting a safe product into the commerce stream. While the type of responsibility will vary depending on the facts in play, some semblance of this approach must be implemented in every trial.
When done properly, accepting responsibility for something makes the defense look like the most reasonable party in the room and defuses the type of anger that results in excessive jury verdicts.
Give a Number
Insurance companies and defense lawyers are reluctant to provide the jury with a defense damages number, especially when fighting liability. Don’t be. Remember, plaintiffs’ lawyers have changed the way they are trying lawsuits. When I was first trying lawsuits 30 years ago, a plaintiff’s attorney never gave the jury a number. The common belief was it would be off-putting to a jury. Today, plaintiffs’ counsel do the exact opposite. They always give a number, employing the psychology of priming and recency.
Your defense counsel must use this same psychology and give the jury a defense number in every single jury trial. And a number can be presented while still seeking a defense verdict. In fact, there is a law review study that found a jury is more likely to give a defense verdict when the defense gives a number. But if the jury does find the defendant liable, having provided them with a reasonable defense figure can significantly reduce the ultimate jury award.
It’s Time to Act
Nuclear verdicts are real, and they are increasing. This trend is a major problem for corporate America, including insurance companies. This very real issue is not going away anytime soon—unless you do something about it.
The good news is that insurance companies have the power and ability to stop nuclear verdicts. It will take time, but through education and incentivizing defense counsel, nuclear jury verdicts can be prevented.