Bad Faith Defense Themes

Donald Myles, Jr. | Jones, Skelton & Hochuli, PLC | June 29, 2016

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.

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.

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