Ending Nuclear Proliferation

Recognizing the industry-wide problem that nuclear verdicts cause to the industry, the CLM recently established a Nuclear Verdict Task Force comprised of insurance defense attorneys and claims professionals in order to help provide concrete strategies and solutions meant to anticipate and stop nuclear verdicts. We chat with CLM CEO Anne Blume to find out more about the task force and the goals it has for the year ahead, which includes four virtual training sessions that kick off in April 2021.

Why are nuclear verdicts so important to focus on?

BLUME: These astronomical verdicts not only impact insurance carriers, but also contribute to social inflation, drive up premiums, and impact insured clients’ bottom lines. There is good news, though: Claims professionals and insurance defense attorneys can stop nuclear verdicts.

How have plaintiffs’ lawyers changed the way they try cases?

BLUME: In years past, they used sympathy to motivate juries to award plaintiffs’ verdicts. However, for the past 10 years, they have tapped into another juror emotion: anger. One way they do that is through the utilization of the reptile theory.

Described in the book Reptile: The 2009 Manual of the Plaintiff’s Revolution, authored by David A. Ball and Don Keenan, the reptile theory has changed the landscape for plaintiffs’ lawyers and their approach to jury trials. Plaintiffs’ lawyers typically succeed when they employ reptile-theory tactics to incite anger in jurors, tapping into the primitive part of jurors’ brains and evoking a fight-or-flight mentality. In effect, the reptile theory is designed to shift the jury’s focus from the law—or standard of care—to absolute safety at all costs and a total absence of danger, something CLM member and Tyson & Mendes Strategic Managing Partner Robert Tyson has written about extensively.

Plaintiffs’ lawyers across the country now regularly employ the reptile theory in a variety of civil cases. To date, they have attributed over $8 billion in verdicts and settlements to the reptile theory. Recent studies demonstrate that when jury trials commence again, jurors may be even more susceptible to the reptile theory in the aftermath of COVID-19.

What is the defense side of things doing to combat these trends?

BLUME: Historically, the defense has not seized the same opportunities as the plaintiffs’ bar to share theories of defense, information, experts, or anything that would inure themselves for a common benefit—and there is a common benefit, both for carriers and for lawyers. Carriers and consumers benefit by defeating the runaway verdicts. Nuclear verdicts and increased settlement values that are made to avoid potential nuclear verdicts result in costs that are borne by carriers and passed on to consumers in their premiums. While there obviously are reasons that lawyers might not want to share their trial strategies, holding back actually increases the likelihood of a nuclear verdict, both in the same and in other jurisdictions, because lawyers handling similar cases may not have employed those strategies.

What can claims professionals do to help?

BLUME: Claims professionals especially have the power to minimize risk. Education and communication are critical for raising the bar of the defense industry. That is why the CLM Nuclear Verdict Training Program will provide a deep dive for claims professionals to understand and dissect plaintiffs’ lawyers’ strategies, as well as concrete training and solutions to help achieve justice for all.

Can you tell us more about the training program and What the task force has planned for 2021?

BLUME: The CLM will host a series of four virtual educational sessions beginning in April 2021. To start, we’ll discuss each item that can lead to a nuclear verdict, focusing on the things that can be done relative to each item to avoid or at least mitigate the result. From there, we’ll have three more virtual sessions designed to do a deeper dive into the factors leading to nuclear verdicts, with a goal of informing and empowering claims professionals and defense counsel to do something different. In September 2021, the CLM will host an in-person training for claims professionals and a Trial Academy for defense counsel. The curriculum will include a series of breakout sessions and workshops to put these new strategies into action. Both events will occur annually.

How was the curriculum established, and who will be teaching the training sessions?

BLUME: The Nuclear Verdict Task Force collaborated to create content for the spring training, specifically by identifying the various problems and discussing potential solutions. We decided to have this session open to claims professionals as well as attorneys because everyone is, and should be, involved in the identification of the problems as well as creating and implementing the solutions. Regardless of their occupations, everyone will come away with new and innovative tools.

From there, we’ll do a deeper dive into those tools so that their implementation can work to the fullest extent possible. And, as the task force continues to discuss its thoughts, the need for further education and training is clear. For instance, the issues potentially dividing carriers where there is excess coverage should also be addressed, as the carriers share the common goals of paying the claimant a fair and reasonable amount given the facts of each case and defeating nuclear verdicts.

Finally, the Trial Academy will also involve both claims professionals and defense counsel. These trainings and breakout sessions will provide opportunities to practice solutions in a collaborative environment. We’re looking forward to debuting this program in September 2021.