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SAN DEIGO — The plaintiffs bar has become increasingly sophisticated, says a litigation consultant.
The plaintiffs bar generally is “so much more organized and better orchestrated” than the defense bar, said Marissa S. Beyers, senior vice president at Los Angeles-based Trial Behavior Consulting. “They all recognize how to target” juries, she said.
It has, for instance, become adept during jury selection at weeding out potential jurors who are viewed as leaders, are better educated and who will be more objective with the evidence and therefore more likely to be sympathetic to the defense.
She spoke at a session on “judicial hellholes” during the 2017 CLM & Business Insurance Construction Conference in Los Angeles Wednesday.
Ms. Beyers said the “judicial hellhole” designation is given when there are “two major issues at play,” the first being a “more liberal and challenging bench,” and the second, “the nature of the venue itself” and the “type of jurors you’re likely to get.”
South Florida, for instance is “awful” and Broward County, which is in south Florida, “is terrible,” said Ms. Beyers.
Thomas P. Mannion, Cleveland-based managing partner for Lewis Brisbois Bisgaard & Smith L.L.P., said sometimes the most danger occurs when there is a close relationship between the plaintiff’s attorney and the judge.
He said in one case he participated in, during a mediation, an attorney told him he had had dinner the previous night with the judge in the case, “and here’s what we came up with for the ruling.”
“You can get a good jury and you can get a really bad jury,” said Ms. Beyers, discussing one case in which the juror was “turned off by some of the things the defense did.”
One of the problems the industry is facing is a lack of training for young insurance adjusters, said Larry Beemer, vice president, claims, for Raleigh, North Carolina-based IAT Insurance Group.
There is also an issue with law firm partners “leaving cases too long with associates,” where partners do not have the time to supervise them, he said.
Many problems, he said, are created because “we just don’t have the right team all set up from the beginning.” In one recent case involving a truck firm owner who was a Chinese national, the defense attorney did not speak to the policyholder until the day before the deposition, and it turned out the owner knew nothing about federal regulations or safety issues.
“You try to identify cases with time to correct” issues, said Carolyn Crawford, Columbus, Ohio-based commercial claims director for Nationwide Insurance. Ms. Crawford said she likes to set up pre-trial conferences where “we really drill down” into the issues of a case.
She said she also likes to avoid surprises. Nine times out of ten, when a claims manager calls to say, “Guess what I just learned” at trial, it is something that should have been learned beforehand, Ms. Crawford said.
Kevin D. Smith, founding partner with Wood Smith Henning & Berman L.L.P. in Los Angeles, moderated the session.
While individuals buying health insurance coverage in public exchanges are facing big premium increases next year — expected to be well over 20% in many states — and a dwindling number of insurers offering coverage in the exchanges, the health insurance marketplace for midsize employers is in far better shape, brokers and others say.