As a trial lawyer, you already know how much of a dance it can be to get an insurance company to acknowledge your client’s losses and then do what they’ve contracted to do, which is to make your client whole. There’s one sure way to move your case up the priority list of the insurance adjusters and their counsel: setting a trial date. We’ll explore the reasons that trial dates motivate insurance companies and why you should try to get your case in position to get on the trial docket sooner than later. Most importantly, we’ll look at how to keep that trial date.
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The Courtroom: Where Insurance Companies Fear to Tread
First off, let’s get one thing straight: Insurance companies generally don’t want to see the inside of a courtroom. Why? Well, a few reasons:
Uncertainty
The primary reason that insurance companies try to avoid going to trial is the uncertainty of the result. Trials are unpredictable, and insurance companies are in the business of risk management. Not having control over the quantification of damages threatens their valuation structure.
Defense attorneys and adjusters spend more time telling themselves what the value of a case “should be” than paying attention to the actual losses you’ll be able to prove in your case. While a case meanders without a trial date, the insurance company will continue to see the case the way they want to see it. With a trial date in place, there’ll come a point where the insurance company and their lawyers will come face to face with the disconnect between what the insurance company wants the case to look like and what a jury will actually hear at trial. Only then will the insurance company’s valuation of the case start to approach the reality of your client’s situation.
Costs
Litigation isn’t cheap. When insurance companies set their reserves, they do so based, in part, on the expected litigation costs their attorney projected for them at the outset. As arbitrary as this amount is, it’s tempered by the insurance company’s plans to minimize the time their attorney spends on the case and to audit and adjust the bills when they come in. As litigation time and costs mount, this litigation budget becomes strained to the point that the adjuster will have to answer to superiors as to why their projections were so far off. Your goal is to make them choose between continuing to fund the litigation and taking a realistic view of your client’s losses.
Public Image
Insurance companies and their lawyers understand that the public’s point of view, in general, is more aligned with them than with plaintiffs and their lawyers. This perception is bolstered every time an insurance company prevails publicly against an undeserving plaintiff. If there’s one thing that insurance companies do well it’s identifying and seizing on the killshots that undermine our clients’ cases. Insurance companies will use prior medical treatment, prior claims, criminal records, and social media posts that, if we don’t take the time to find before they do, will almost guarantee a favorable trial outcome for the defendants. You’ll know that the insurance company is holding these cards when their lawyer asks for a trial date before you do.
We can turn this strategy against the insurance companies in three simple steps: know the strength of your cases,[1] get the weak cases settled, and get and hold trial dates in the stronger cases. The insurance companies’ strategy depends on our side taking a passive approach to resolving our stronger cases. They can spot those cases the same as we can. Once identified, the campaign of “we want to get this case settled,” “we’re not going to fight liability,” “can you save me some off the policy limits” begins. Unfortunately, most plaintiffs are lulled into complacency by this campaign and, ultimately, give in when the insurance company comes “close enough.” The result is that the insurance company profits from paying less than they actually owe.
Getting a trial date on the stronger cases, actively litigating those cases to lock in the strength of the cases, and saying “no” to everything the insurance company proposes to soften the blow for themselves is all that it takes to give you control of the outcome of the case. Once this control is established, one of two things will happen: the insurance company will pay full value of the case or you’ll get the chance to tell your deserving client’s story to a jury. Without a trial date in place, though, the lessons to be learned from the strength in your case that is revealed during litigation will be lost on the insurance company. They’ll hear what they want to hear and proceed accordingly.
Opening the Floodgates
In a similar vein, there’s always a concern on the part of insurance companies that a successful plaintiff verdict against them will embolden others to refuse to settle cases on terms favorable to the insurance company and pursue similar verdicts in their cases.
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Keep That Date: Dodging Defendant Delays and Court Continuances
Getting the trial date is only the first step to seizing control of the case. Nearly all insurance defense attorneys are skilled at the art of procrastination and delay. These skills have historically served them well in defusing the threat that a looming trial date poses. Until it becomes abundantly clear to them that you have no intention of playing along with any effort to delay trial, the trial date won’t change their approach to handling the case. Here’s what you’ll hear: “I need more time to take depositions to take because my calendar is full,” “I can’t get in touch with my client,” “We’re working on getting those documents to you,” “let’s continue the trial and set a mediation that day instead.” We all know that none of this is true or sincere. These are simple tactics to remove the urgency from the case. Here’s how to keep your foot on the gas:
Be proactive: Move at a deliberate pace in sending out discovery, responding to discovery, insisting on a timely response to discovery, hiring experts, identifying witnesses to be deposed, setting depositions, taking depositions, and requesting the trial date. Don’t fall into the trap of “waiting for someone else to do something.” Get deadlines set, abide by them so you don’t need to ask for favors, and insist on reciprocal compliance.
Document Everything: Keep a meticulous record of every delay and unresponsiveness. When the inevitable request to continue the trial comes, the court is more likely to side with you if you can show a pattern of delay that has been met with responses identifying them as such and letting the other side know of your intention to hold on to the trial date.
Motions to Compel: If they’re dragging their feet on discovery, a well-timed motion can light a fire under them. Avoid the boilerplate motions. Closely review inadequate discovery responses and point out the specific inadequacies to opposing counsel, giving them a small window within which to provide more complete responses. Make the motion to compel as specific as the request to counsel. Get a hearing date and stand by it.
Oppose Continuances: Beware of the defense attorney who starts telling you “I’m not going to jam you.” First, when the jamming opportunity comes, that tune will likely change to “my client’s making me do this.” Second, this assurance isn’t being offered magnanimously. It’s being offered in hopes that you’ll return the favor and never force him/her to do what they’re supposed to do. Third, it should be your intention to not get into a position that you can be “jammed.” Have a plan, stick to the plan, and be prepared at every stage of the case and you won’t need these favors. You have a legitimate reason for opposing delays and continuances that shouldn’t affect your relationship with opposing counsel – your client’s life is on hold until justice is achieved in their case.
So, if you made it this far, you’re probably thinking “well that’s all well and good if I want to spend all my time trying cases.“ If so, I suggest you go back and reread the article with the mindset of “What can I do to make insurance companies pay the full value of a case?” What you’ll find is, in the early going, the folks who have settled cases with you before will remind you of how you’ve dealt with them in the past. Stay the course, show them that this case is not like the last case, nor will it be like the next case, and they’ll start to change the discussion from how much can I save on this policy to why won’t you take my policy limits? The rewards to you and your client will be far more than the added compensation they recover. You’ll get the satisfaction of knowing that you and your client chose full justice over contributing to the profits of the insurance company.
I’ll propose a strategy for assessing the relative strength of your cases in my next post.
By: Paul Wilkins, Chief Litigation and Strategy Officer, Dudley DeBosier
