How online mock trials benefit insurers' corporate counsel
Taking the time to conduct an online mock trial prior to settlement can lead to monumental insurance company savings.
COVID-19 is placing an unprecedented strain on insurance company resources. As coverage disputes arise, insurance defense counsel should reconsider using mediation to take a first look at a case and gain insight into opposing counsel’s case theories. Attending mediation with online mock trial knowledge has the potential to decrease litigation costs and settlement awards in a time when the future of jury trials is uncertain. Although dates have been set for jury trials to resume, there is no guarantee that these dates will hold and, according to media reports, COVID-19 outbreaks will continue, contributing to reluctance of parties to do anything in person.
Save time and money
The longer a case continues toward trial, the more legal fees, and loss of time and resources an insurance company will incur. An online mock trial provides a cost-effective way to efficiently decide the best-case alternatives. Presenting the key facts of your case to demographically varied mock jurors will expose potential fault, levels of fault, and reasons for fault.
Additionally, prior to group deliberations, you can individually poll mock jurors regarding whether they think a defendant should pay, why, and what amount. While this exercise cannot provide you with a precise settlement number, it can give you an idea of what laypeople think is fair as well as their reasoning. The insight obtained from a mock trial can be a cost-effective replacement to agreeing to settlement based on anchors such as policy limits, damage caps, original offers, or plaintiff-jury rapport.
Guide discovery
Insurance companies incur legal fees during the discovery phase of a case, and the source of exposure is often the focus. Smart insurance company counsel and professionals work with mock jurors to elicit questions, dissect logic patterns, review important evidence, and use all of this information to guide deposition decisions and document requests.
Because mediation happens early in discovery, lawyers have a tendency to develop and commit to hypotheses and, more often than not, rigidity prevents them from altering their views regarding exposure risks and potential liability. A mock jury can help find hidden problems and skeletons because mock jurors are neutral parties trying to objectively decide who is at fault and why.
Mock jurors further understanding
Past economic events such as the 2001 and 2008 downturns can influence jury awards — as they did in cases like Enron. Insurance professionals and litigators who reserve all judgment and conduct mock trial deliberations with regular, everyday people, can potentially understand how backgrounds, viewpoints and “black swan events” such as the COVID-19 pandemic shape juror decisions. Listening to discussions and analyzing the psychology behind beliefs and statements will help inform case ramp up and trajectory and can impact present and future case strategies. Processing and pivoting to all of this information early on can make the difference between a minor payout and a company crippling verdict.
Cherry on top
Taking the time to conduct an online mock trial prior to settlement can lead to monumental insurance company savings. Decisions based on data rather than policy limits will increase the odds of favorable settlements and potentially minimize the risk of protracted cases that lead to high legal fees. Additionally, using psychology to dissect what real people think about the issues in your case, especially during the emotionally trying COVID-19 pandemic, is priceless information that savvy professionals use to significantly decrease exposure.
Juli A. Adelman, MBA, PsyD, is principal of Vantage Trial Consulting. These opinions are the author’s own.
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