Judiciary bias

It is not unusual to find attorneys who pursue the deepest pocket regardless of the proportion of fault, perhaps even letting those more responsible walk away. Concerns of the “targeted” are reasonable, since they are often repeat players in the same system with plaintiffs cherry-picking defendants in a bizarre lawsuit lottery.

Any deep pocket bias may not be limited to attorneys or juries, but may also emanate from the court itself. According to a 2014 Florida case of Great American Ins. Co. of New York v. 2000 Island Boulevard Condominium Association, a judge told an insurance carrier to, “Fork over the money.”

A condominium association filed a lawsuit against a carrier that had not concluded its investigation due to the association's alleged failure to provide documents and submit to an examination under oath. Regarding the carrier's inability to make a decision, the judge stated:

JUDGE: We've got a lawsuit filed. We've got an insurance company that's not paying a claim… You said we would give them a report when they got all of that information to you. It strains all credulity for me to believe that your carrier has not denied coverage based on the information they know now.

DEFENSE: But they have not (denied coverage.)

JUDGE: Then fork over the money.

Regarding a claims correspondence, the judge added:

JUDGE: You can't read the June 26, 2012 letter without saying this is a denial letter. “We're not sure?” You can say “we're not sure” until the cows come home. And, in fact, you won't be sure until the jury speaks, and then you won't be sure until the Appellate Court rules, and then you won't be sure until the Supreme Court rules after that…That's just the nature of litigation. That's how it works.

The judge continued to show his hostility towards the carrier by calling their claims letter, “Fancy talk for 'we're not paying you.'”

The carrier moved to have the judge recused, stating his comments showed bias in favor of the plaintiff. A three-judge panel agreed.

In addition to liability, as part of a deep pocket bias, jurors may take the financial strength of a company into account when quantifying an award. This could include the company's status, size and recent media attention. The assets of the carrier may be more important to the jurors than any unknown good deeds.

Spill a cup of coffee…make a fortune

An example that gained notoriety even before social media is the 1992 case of Stella Liebeck who was burned by McDonald's coffee that was purportedly too hot. She was awarded $2.9 million by a jury for punitive damages. If you're curious as to how they arrived at that sum for a burn from an eight-ounce coffee, according to a story in the Wall Street Journal, the attorney suggested penalizing McDonalds for the equivalent of “two days of companywide coffee sales, estimated at $1.35 million per day.”

Certainly coffee sold by a mom-and-pop cafe would not have reaped the same figure, even for comparable injuries from the same eight-ounce cup. Despite real injuries, the Liebeck case has since been on top-ten lists and was even a Seinfeld plot. (In the Liebeck case, the award was reduced by the judge to $480,000 and settled out of court for an undisclosed amount.)

For insurance carriers, such deep-pocket precedents can be devastating. News of the Liebeck verdict spread like wildfire. An editorial in the San Diego Union Tribune stated:

“When Stella Liebeck crumbled her coffee cup as she rode in the car with her grandson, she might as well have bought a winning lottery ticket…Our guess is that other greedy copycats in restaurants throughout America soon will be happily dumping coffee in their laps in a bid to make similar killings in the courtroom.”

So there are juries who have made up their minds before hearing any facts, judges telling insurers to “fork it over,” and multimillion dollar awards because it's merely a few days' earnings. How can honest, diligent insurance carriers possibly persevere? Insurers' employees, adjusters and agents work to demonstrate the utmost good faith. So what can insurers do if the other players already have a bias against them?

If prejudices exist, it is important to understand the source. They could be drawn from media coverage involving large carriers or corporate liability cases (Phillip Morris, GM's extensive recalls.) Even in the entertainment trade, books and movies such as John Grisham's The Rain Maker depict an exaggerated bad faith insurance carrier — and should be required reading for new claims adjusters (on what not to do).

Changing the perception of insurers

When potential jurors report for duty, the insurance company may be a faceless, multibillion-dollar conglomerate. On the other side, the plaintiff is a wounded human; perhaps someone who looks like their aunt, uncle, daughter or their favorite teacher. In this writer's experience, the cliché can hold true: the defense may be characters in immaculate suits, displaying staunch poker faces. Consider the first trial you observed and being told not to make any expressions or show any emotions. Unfortunately, this may have sent the wrong message to the jury.

Insurers can combat any bias by proving what upstanding, professional humans we are. Our companies are not faceless entities. It is crucial to begin demonstrating this instantly during voir dire, and then proceeding with the case with warm people at the table representing our companies.

During voir dire counsel should carefully probe for any biases. Questions in the spirit of: Have you ever had a prior claim with this carrier? What feelings do you have about this carrier? Would any feelings affect your evaluation of the facts? Do you agree that insurance companies, as well as people, are entitled to a fair trial?

It is essential to put a human face on the company. A knowledgeable, appealing representative seated at the defense table from voir dire through closing arguments can help in an effort to focus on the people who are part of the carrier rather than just a commissioned “legal team.”

It's unreasonable to have the president of the company or claims department attend the trial, but a carefully-selected representative who's amiable and familiar with the claim, can be a “face” for the company to the jury. It will be vital to have the defense become acquainted with the representative in preparing the case. If executed properly, this person should exhibit the opposite of a cold, impersonal corporation.

Another cliché to dispel: appearing argumentative or defensive. It may add drama on television to have the attorneys shout “I object!” However in the real world, excessive objections can be viewed by a jury as trying to bar a witness from sharing information or trying to keep evidence hidden.

Motions made in limine should be considered to avoid unnecessary objections during trial. The motions can be presented in advance to preclude certain questions from being posed in the first place. Motions in limine may include prior offers of settlement, expert testimony, evidence not permitted due to statutes, and the like. Or more significantly, the defendant's net worth on a punitive case can be deliberated in advance.

There is value in working harder to soften the perception of large carriers. Through the innovation of social media, new generations can see the wonderful ways in which carriers help those in need. From an advertising standpoint, images are already shifting. In an industry that had been known as a humorless commodity, commercials are creating smiles. From the trailblazing ads of State Farm to the Geico gecko and Progressive's “Flo,” views are changing through outlets that did not exist 20 years ago.

Being cognizant that biases exist is the first step to remedying them. Handling claims with the utmost good faith and top-notch service can soften insurance's image one claim at a time. If it gets to the point of a lawsuit and then trial, insurers can carefully select juries and provide the best presentation of facts, with real, knowledgeable people at our side.

And maybe one day, law schools will no longer encourage the legal tactic of profundus marsupium.