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Appealing to fear: insurance company defense teams must plan ahead to overcome plaintiff attorneys who use scare tactics to sway juries.

A new client comes in to see a famous plaintiff lawyer.

"Can you tell me how much you charge?" the client asks. "Of course," the lawyer replies. "I charge $300 to answer three questions." "Well, that's a bit steep, isn't it?" the client says. "Yes, it is," says the lawyer. "And what's your third question?"

Or so the story goes.

In the insurance world, lawyers play an integral role in almost every facet of the industry. Legal minds are involved in policy language, underwriting, new product creation, regulatory filings, lobbying and, of course, claims.

The legal claims world entered new territory in 2009 when David Ball, a jury consultant, and Donald Keenan, a trial lawyer, wrote the book Reptile: The 2009 Manual of the Plaintiff's Revolution. It outlines how at trial, a plaintiff attorney can seek an advantage by appealing to jurors' minds by frightening them and triggering a conditioned reaction to seek self-protection and survival--much like a reptile does when confronted by an enemy or something scary.

The idea is that jurors will side with the plaintiff to protect their own sense of safety and well-being. This process has been taught in trial advocacy courses and in some law classes as well.

In the seven years since the book came out, many defense insurance attorneys have tried to overcome the tactic, and some had great success. However, both the client's and the carrier's legal defense can benefit by creating a game plan prior to the plaintiff lawyers infusing this concept into the minds of jurors.

Clients and their risk management teams must continually and systematically evaluate their company's reputation risks prior to litigation. Does the company have a consistently positive reputation ranking in their industry (e.g. in the Harris Poll Reputation Quotient Summary Report)? How is the company viewed in the local community? Does the company have a positive and well-established relationship with local news and media relations? Where will support come from--employees, clients, community and vendors? What was the response (positive or negative) to past major litigation cases? What is the brand reputation risk involving this trial? Is there a social media and company website statement prepared to reinforce a positive image?

The company's legal, communications and risk management teams must remember that a victory in the court of law doesn't guarantee success in the court of public opinion.

Insurance company defense teams and their assigned legal counsels also must prepare for this reptilian approach in trial. A solid evaluation and full disclosure of the case has to be completed. This evaluation should not be based solely on the insurance policy, but also on the likelihood of a successful defense. The client must be told everything, particularly that if the reptilian approach works against the company this time, the company is likely to see a repeat performance with future cases.

Plaintiff attorneys will look for the repetitive reptilian approach, as it is always easier. Defense counsel also must educate their insureds on the tactics the plaintiff lawyers will use in depositions, voir dire, opening statements, courtroom questioning and in closing remarks.

Training clients, defense experts and those who will face the bite of the plaintiff lawyer is paramount to potential success in a major claim. Preparation, education and proactivity can help expose the soft underbelly of the reptilian attorney before a case reaches trial.

Best's Review columnist Lance Ewing is executive vice president of Global Risk Management for Cotton Holdings Inc. He is also the former president of the Risk and Insurance Management Society. He can be reached at
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Title Annotation:Insight: Risk Adviser
Author:Ewing, Lance
Publication:Best's Review
Date:Sep 1, 2016
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