BADFAITHARTICLE
031
BAD FAITH
DEFENSE THEMES
AUTHOR : Don Myles EMAIL : dmyles @ jshfirm . com BIO : jshfirm . com / donaldlmylesjr
Anyone who has defended an insurance carrier realizes that the general public , and thus juries , initially believe that companies are looking for ways to deny claim payments . Whether the facts or coverage language justify the denial , a jury must be convinced that the result was “ fair .” The battle of a jury trial is over “ empathy .” If jurors conclude that they are much more likely to be in the position of the Plaintiff in the future , it can be very difficult to win the case . Conversely , if the jurors do not identify with the Plaintiff and see Plaintiff ’ s conduct or behavior as being inconsistent with their own , the case will likely be defended . As many a wise lawyer has said , the battle is not over Sympathy but Empathy .
IN DEFENDING BAD FAITH CASES , THE MOST IMPORTANT QUESTION IS
THIS : WILL THE JURORS , AS THE EVIDENCE IS PRESENTED ,
SEE THEMSELVES IN THE POSITION THAT THE
PLAINTIFF IS IN TODAY ?
Trial themes are not necessarily stated aloud , but are the foundation for everything that the jurors will hear in testimony as well as in opening and closing statements . The theme must anticipate the jurors ’ “ end job ” of reading and reacting to the evidence , the verdict form , and the jury instructions . In defending bad faith cases , the most important question is this : Will the jurors , as the evidence is presented , see themselves in the position that the Plaintiff is in today ? Would they exaggerate or misrepresent items that were destroyed as a result of a loss ? Would they set fire to their house ? Would they intentionally lie regarding the extent of damage to items claimed ? Would they expect and demand a new roof when they knew theirs was thirty years old because of fairly insignificant damage ? You must separate the jurors from the conduct of the
Plaintiff . If the Plaintiff is extremely likable , many of the jurors will forgive exaggerations and other conduct the Company might perceive as “ misrepresentations .” One or two “ exaggerations ” may be excused . But not four or five .
Misrepresentations regarding the value of items must be substantial and must occur more than once or twice . Anyone can make a “ mistake .” Anyone might “ exaggerate on one or two items .” Many jurors will believe that this does not make someone a “ liar ” or someone who has committed a “ fraud .” But what if there are four or five “ exaggerations ”? No juror will believe they were mistakes and jurors will separate themselves from the insured and accept the label “ liar ” or the term “ fraudulent conduct ” being used to describe the Plaintiff ’ s conduct . Anything short of your ability to call them that in open court means you may not be able to win the battle of empathy .
Jury research , including mock trials done live and over the internet , repeatedly show that jurors are looking for a way to find in the Plaintiff ’ s favor against an insurance company . In fact , the jury instructions and law regarding bad faith require a carrier to “ give the benefit of the doubt ” to the insured . Your jurors will do the same . In denying claims or taking coverage positions , it is important to also realize the pragmatic effect . You ultimately must be able to stand up in front of a group of strangers , point to the insured , and say they do not deserve to be compensated for their loss for the reasons set forth in the denial . If you are uncomfortable doing that , you may want to rethink your position .
ABOUT THE AUTHOR DON MYLES
Don has been a Partner at JSH for nearly 30 years and has spoken at seminars all around the country regarding litigation related issues , as well as trial practices and procedures . He concentrates his practice on insurance coverage , bad faith , professional liability and has tried in excess of 50 cases to verdict .
Contact Don at 602.263.1743 or dmyles @ jshfirm . com