Making Issues Human Crucial for Juries in Coverage Trials
Making insurance companies appear friendly to juries and presenting coverage issues in an understandable manner make preparing for a trial challenging for both sides of the bar in different ways, experts say.
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Policyholder's Dilemma
While carrier-side counsel face challenges making an insurance company relatable and human, policyholder attorney Jim Murray of Blank Rome LLP told Law360 that insurance recovery attorneys face obstacles of their own when presenting their case to a jury.
One of the first steps to get a jury to like a policyholder client, Murray explained, is the trial attorney.
"I often joke that many trial lawyers are not that likable," he said. "However, almost everyone has some redeeming trait that can be embraced and nurtured: perhaps it is modesty, or shyness or an undeniable earnestness. You have to be you, so you had better figure out at least one likable trait and take advantage of it."
Another challenge, Murray explained, is keeping the jury focused on the fact that the dispute is about insurance coverage, rather than the policyholder's conduct. This obstacle arises most in trials over coverage for environmental contamination.
"Jurors need to be reminded strongly during [the] opening statement and throughout the case that the only question to be answered is whether there is insurance for the policyholder's liability," he said. "If it is an environmental case, remind the jury in closing that the insurance company is not the Environmental Protection Agency, even though they want to talk like they are there for the public good."
Murray went on to say that trial counsel must also reiterate that "insurance is purchased in case things go wrong, and coverage does not depend on their view of the policyholder or its alleged wrongdoing."
Finally, he said, counsel should regularly remind jurors that "this is just another insurance company not wanting to pay the loss after accepting the premiums."
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"Making Issues Human Crucial for Juries in Coverage Trials," by Shane Dilworth was published in Law360 Insurance Authority on August 2, 2023.