I have tried to change this disparity with the first book ever written for the defense, NUCLEAR VERDICTS™: Defending Justice For All. The solutions are there, but are defense lawyers reading it? Frankly, the plaintiffs’ bar has given more webinars on how to combat my book than the defense has given on how to use it! In fact, six-plus hours of plaintiff seminars have already been given by the author of the infamous Reptile Theory, David Ball.
The good news is, insurance companies and defendants can stop NUCLEAR VERDICTS™! You have the power. We defense lawyers will do whatever you want. Just ask us!
For example, after the Great Recession ten years ago, when plaintiff lawyers were perfecting their trade and changing the way they try lawsuits with such things as the Reptile Theory, what were your defense attorneys doing? We were doing exactly what you asked us to do: focusing on expenses! We learned all about litigation management and metrics and case cycles and phased budgets and a whole new skill set that no lawyer ever went to law school to learn. Your defense lawyers will do whatever you want them to do, just ask them!
Cause of NUCLEAR VERDICTS™
The cause of NUCLEAR VERDICTS™ is not one or two high profile plaintiff lawyers, or a change in juror attitudes in certain venues; it is because you are being out-lawyered. Yep, over the last 10 to 15 years, plaintiff lawyers have completely changed the way they try cases. All of them – not just a few good plaintiff lawyers – now try to get juries angry. Anger is the number one driver of NUCLEAR VERDICTS™. It is no longer sympathy.
So in the face of ever increasing NUCLEAR VERDICTS™ over the last decade, what is your defense counsel doing differently? Go ahead, make a list of all of the things you defense counsel are doing now in your jury trials in response to the radical changes plaintiff lawyers have made. Honestly, is there anything on your list? Jury verdicts are skyrocketing in this country and your counsel is doing nothing different? Why is that?
If winning had anything to do with the way defense firms were paid, many defense firms would be out of business! But, that is not how the defense industry works; we get paid, win or lose.
Three Ways to Stop NUCLEAR VERDICTS™
Better lawyering is the answer. So how do you get better defense lawyers?
Well, you could hire and incentivize us, or another defense firm that has changed the way they try lawsuits, to try every case you have in America. You could bring in our national trial team whenever you lose a summary judgment motion and your defense lawyers are terrified about an impending trial. You could incentivize a national defense team to win your biggest and scariest cases. In fact, we are parachuted in to such cases all of the time. However, this may not be practical in every circumstance. What else can you do?
Insurance companies and defendants can take back justice in three main ways, all within your control:
As I mentioned at the outset, as it stands, defense lawyers share almost nothing with one another. You can make your defense panel share information with one another. You may not be able make all defense lawyers communicate with each other, but you can certainly control your own panel.
Most education on NUCLEAR VERDICTS™ focuses on the problem, not the solutions. The solutions are laid out in NUCLEAR VERDICTS™ and need to be implemented by your defense counsel.
Again, you have the power. Mandate that your outside counsel be trained on ways to beat plaintiff lawyers at trial. Tell them to attend training and change the way they try lawsuits. We are developing intensive training right now with CLM for both lawyers and claims professionals. It is time to learn how to win!
What can you do right now to make sure the next nuclear verdict does not happen to you? Get your defense counsel to think differently. Require your counsel include the following sections in your pre-trial reports:
What could make a jury angry in this case?
How will plaintiff’s counsel get this jury angry?
How will you defuse anger?
How are you going to show the jury we care?
What is the theme of your trial?
Where are you going to start your story in opening statement?
(Hint: It had better not be the same place where plaintiff starts!)
What are you going to accept responsibility for?
Give A Number
What is the number you will ask the jury to award?
Personalize the Corporate Defendant
How are you going to personalize the insured?
What should a jury know about your client?
How are you going to argue pain and suffering to the jury?
This is the biggest component of most NUCLEAR VERDICTS™ – how are you going to argue it?
If there is no pre-trial report, then ask the above questions. This will get your team and defense lawyers thinking about all of the things their opponent is going to use against them in an upcoming trial. Start the process of change, today!
Like it or not, money motivates many people. It certainly motivates the plaintiffs’ bar! It seems to be a given that the best plaintiff lawyers make far more than the best defense trial lawyers. Have you ever heard of a successful plaintiff lawyer becoming a defense lawyer? In contrast, excellent defense lawyers often flip over to the plaintiff’s side. Why? Money?
Frankly, money is one solution to the problem, which you again control. If you want to change behavior, acknowledge and reward good behavior. We will be announcing a brand new entity next year to handle your biggest and most worrisome trials. We will use value billing, including a fixed fee for trial and a success fee, to get you the results you deserve. Much more to come on this exciting new business model to stop NUCLEAR VERDICTS™!
Justice For All
It was a great summer discussing NUCLEAR VERDICTS™ with all of you. But there really is no substitute for reading the book! Thank you and enjoy!