Lessons for the Defense Bar from Plaintiff’s Counsel

Many years ago, when I was first learning the trial consulting business and working for another company, I was called upon to facilitate some mock trials for an old warhorse plaintiff’s trial lawyer in Milwaukee, who we will call Ted. He had an electrocution case and was faced with a dilemma: the insurance company had offered him $600,000 to settle the case; Ted thought he could get them up to $1,000,000, but he wanted to know if he should roll the dice, try the case, and go for a homerun. In truth, I do not remember the particular details of the case, but I do remember what happened.

In those days, we did three mini-mock trials in a day. At the conclusion of the first mock trial, the mock jurors found “no liability.” Ted chalked it up to his failure to really focus on liability during his presentation, since he was more interested in damages. Besides, he thought liability was “a given.” So in the second mock trial, Ted spent more time presenting the liability issues and the plaintiff’s theory with regard to liability. At the conclusion of the second mock trial, the mock jurors once again found “no liability.” They blamed everything that happened on the plaintiff. Needless to say, Ted was shocked, and still wanted to believe it was a fluke. So, we did it a third time. And in the third mock trial, Ted pulled out all the stops and held nothing back from the plaintiff’s presentation. Nevertheless, the third panel of jurors also found “no liability.”

Needless to say, Ted realized he had some serious liability problems, and this was NOT a case he wanted to roll the dice on. He went back to the insurance company and got them up to $1 million. He took the money and ran!!! The lesson Ted learned and the lesson for the plaintiff’s bar is obvious. But the lesson here for the defense bar, in-house claims counsel, and adjustors is this: had the defense done their homework and mock-tried the case, they would have learned, just like Ted did, that the plaintiff had some real serious liability problems and this was a case that the defense could take to trial and win. Not only would they never have offered Ted $1 million in settlement, but they would have taken the $600,000 off the table. Spending some money on jury research could have meant saving the company hundreds of thousands of dollars!

So don’t stay in the dark – don’t guess when it comes to settlement value – pennywise is often dollar foolish.

Case Study in Client Capital Preservation

Facing an $11 million personal injury claim, one of our insurance clients wanted to formulate a settlement offer that would reflect the true case value. Verdict reports gave broad award ranges, yielding no real guidance (as usual). Claims counsel recommended fast-tracking settlement because the injuries appeared significant and the life-care plan extended over 50 years. Using guesswork, defense counsel contemplated making an offer between $4.5 and $5.5 million.

Jury research revealed that more than two-thirds of jurors would find for the defendant on liability. The average award of minority jurors was $2.2 million; the 50th percentile awards totaled only $1.3 million. Defense offered and settled for $2 million, saving $2.5 million (off lowest offer contemplated). The total cost of the jury research was just 2.5 percent of settlement value. The cost of guessing: $2.5 million – 50 times the cost of the jury research!