As verdicts become both larger and more frequent, it is important to keep an eye on litigation avoidance at the claim stage while preparing for advocacy and timely communication to close claims when they do occur. In this session at RIMS 2023, Ed Burtnette, National Vice President of Liability Services at CorVel, highlighted current litigation challenges faced by risk professionals and the solutions to combat these challenges.
A nuclear verdict is defined as a jury award that is $10 million or over. Product liability, auto liability, general liability, and personal injury are the cases that are at most risk of resulting in a nuclear verdict. In these cases, plaintiff counsel is working towards getting jurors angry, rather than going for sympathy, then ultimately going for that big number.
There are now several contributing factors to this trend. First, there are now third-party litigation funding organizations that stand to benefit from nuclear verdicts. Second, attorneys are becoming more aggressive in their advertising. Third, there is a lack of tort reform.
Attorneys are also using the reptile theory, which is a plaintiff strategy that preys on the jury’s fear by arguing the defendant’s action or inaction increased danger to the community. The plaintiff’s attorney then convinces the jury it has the power to improve the safety of the community by returning a large verdict against the defendant, thus protecting the community from future harm.
Defense counsel is beginning to advise that the defendant accepts responsibility to make the defense seem reasonable and shifts the focus to others’ comparative fault. They must diffuse the juror anger. They also strive to give a number for settlement, personalize the corporate defendant (i.e. show community involvement), and argue the number around pain and suffering.
One strategy is to give the defense a number in every trial. The plaintiff will use it to figure out which jurors are comfortable with high awards and establish a baseline value for the case. Mock trials help with that. That number must be provided early, often, and it must never go up.
When the defense attorney goes to argue pain and suffering, they must show the impact of the accident on the plaintiff’s life, the impact of the money on the plaintiff’s life, and educate the jury to remind them this is real life.
There are technology solutions, like predictive modeling, that can help identify litigation triggers and provide alerts to the adjuster on the possibility of a nuclear verdict.