Changes in plaintiffs’ bar behavior and the trial environment demand assertive countermeasures.
Published on March 28, 2023
By Sheri-Ann Marcinkiewicz, Director and Senior Counsel, Complex Claims
The US litigation environment has become increasingly volatile in ways that greatly complicate the challenge of handling claims. Here is an overview of the current litigation landscape, along with some suggestions for how the industry can better navigate it.
The increasing volatility of the jury pool
Since their post-COVID return to the courtrooms, juries have increasingly demonstrated anger and mistrust toward corporate defendants, along with a willingness to “punish” a defendant and “send a message.” Plaintiffs’ counsel have had considerable success convincing jurors that they are the stewards and protectors of society, charged with ensuring “this does not happen again.” The actual merits of legal claims, along with applicable laws, are increasingly being set aside in favor of arguments based on emotion.
"Juries’ recent, record-high “nuclear verdicts” are exponentially eclipsing figures from only a few years ago."
Jurors are also personally experiencing record inflation, with diminished purchasing and saving power that increases the volatility of their mood. At the same time, they have become desensitized to the value of money and the chilling economic impact of large verdicts on business enterprises. As a result, juries’ recent, record-high “nuclear verdicts” are exponentially eclipsing figures from only a few years ago, and frequently include punitive awards in the multi-millions—sometimes even billions.
The increasing boldness of the plaintiffs’ bar
Plaintiff law firms, emboldened by these developments, have been motivated to expand their spheres of operation in multiple ways. Premier regional plaintiff trial firms are moving into additional states, and bringing their business model with them. Plaintiffs are increasingly being fronted money by the larger plaintiff law firms, or provided with litigation loans at high interest rates that impede reasonable settlement.
Plaintiff law firms’ behavior has also evolved in ways that complicate litigation defenses. Increasingly, they are actively opposing the most basic discovery requests, imposing undue time and expense upon defendants and their insurance carriers. Plaintiff attorneys are refusing to attend mediation without a sum certain being offered and without setting a floor for negotiations. Meanwhile, the plaintiffs' bar is actively influencing jury pools through prolific media advertising, wherein the “actual defendant” is described as the insurance company.
"The plaintiffs’ bar is actively influencing jury pools through prolific media advertising."
The increasing intransigence of the plaintiffs’ bar has also had an impact on carriers’ behavior. Primary carriers have shown a reduced appetite to aggressively defend against protracted litigation, instead tendering limits and thereby artificially inflating claim values. This development naturally affects the providers of excess coverage, as well.
Countervailing strategies for consideration
While a review of these trends spotlights significant challenges, it also underscores the case for assertive legal defense strategies that take account of these factors, encompassing both litigation management and mitigation. Some of these strategies are situational in nature, while others are more general and may not apply to every case.
- Primary carriers should retain counsel who are prepared to pursue a proactive litigation posture. Work to identify defense counsel who meet the specific needs of the claim, including familiarity with the venue and the ability to navigate it, as well as a good understanding of its volatility level. Confirm that the defense counsel are prepared to adhere to litigation guidelines, and that they have the ability to mitigate and defuse aggressive plaintiff counsel tactics that are intended to increase the value of eventual verdicts or settlements. The goal of all these criteria is to ensure that defense counsel have the ability to assist in positioning matters for early resolution, when possible.
- Excess carriers who do not control the defense should pursue appropriate influence with the defense team. Retain monitoring counsel or associate in defense counsel, when appropriate. In any case, endeavor to establish an ally relationship with the insured and/or their personal counsel, as their requests to defense counsel will carry weight. Specialists can press for adequate defense measures and memorialize the need for critical items to be completed. When appropriate, replace defense counsel, either by convincing the insured and the underlying carrier(s) of the need, or, where essential, assuming the defense.
- Recognize that luck favors the prepared. Create a defense theme for the insured that will resonate with the future jury. Vet strong mediator candidates early on in the process. Take advantage of vendors’ evaluation tools, including mock jury questionnaires, jury focus groups and mock jury trials. Ensure defense witnesses are well prepared for depositions in order to avoid “reptile tactic” traps. And revisit reserves at the different phases of litigation, including plaintiff and defendant depositions, results of independent medical exams, and dispositive motions.
- Carefully consider which cases are appropriate to be tried. Actively prepare larger-exposure cases for trial. When cases reach that stage, utilize jury consultants where appropriate. Monitor trials in person. Retain appellate counsel to assist with filing in limine motions, rebutting daily trial rulings, and crafting the jury verdict form. Use defense anchoring techniques at the outset of trial, and continue the theme throughout, so that juries are hearing well-reasoned values based on actual damages and not just plaintiffs’ inflated figures. And be prepared to engage plaintiff’s counsel in negotiations at appropriate times during the trial.
"Addressing challenges of this systemic nature demands both sustained vigilance and enhanced collaboration."
While following all these strategies is no panacea, they offer a necessary antidote to the troubling evolution of trends in plaintiffs’ bar behavior. Beyond these specific recommendations, it is also essential to maintain effective communications among carriers, brokers and insureds, as well as with defense counsel. Addressing challenges of this systemic nature demands both sustained vigilance and enhanced collaboration.