Many firms continue to brag that what sets them apart is that they try cases. Meanwhile, insurance companies and large companies increasingly are getting harpooned by juries in Georgia and other states. Is it time for a different approach – a disruptive approach? Yes! At the very least, the insurance company “Trial Round Table” team needs to re-frame the conventional trial evaluation emphasizing law and facts to apply the same standard juries are applying, which is:
The burden of proof is actually on the defendant. To prevail, the defendant must affirmatively answer the question, Did it do everything it could to prevent this incident?
If the answer to this question is NO, then start thinking disruptively and developing a mitigation strategy to settle the case. Part of this analysis is we need to start thinking like jurors and not like lawyers and claims people.
SUMMARY OF KROGER CASE
On the heels of last month’s $43 million verdict against pharmacy CVS in a criminal acts shooting case, Kroger was just hit for $70 million by a DeKalb County jury. (The verdict was higher but the jury apportioned 14% of the fault to the criminals.) The Kroger case involved criminals confronting the plaintiff as he parked his sports car in the Kroger parking lot. The criminals demanded his keys and then shot him more than 10 times, rendering him a paraplegic with over $4 million in medical damages; the award included $60 million in pain/suffering. Kroger had a private security guard patrolling inside the store but did not contract for one outside the store. There had not been any other serious crimes against people in the parking lot of the store, but it was located in a dangerous area of Atlanta. Kroger maintained the criminals followed the plaintiff into the parking lot with the sole purpose of stealing the car. Plaintiff asserted the criminals had been casing the parking lot when the plaintiff arrived, and they focused on him. Mediation failed, with Kroger offering $1 million and plaintiff making a soft demand of $30 million. Consulting with attorneys in the case suggests the case could have settled for perhaps $23 million. Early in the trial, Kroger offered $12 million to settle, which was rejected, and the conclusion was the $70 million verdict.
Why did this happen? Well, did Kroger meet the jury’s burden of proof and do everything it could to prevent this incident? Given there was private security on the premises – but only inside the store – the jury’s answer was an emphatic NO! You could argue whether outside security would have mattered, but it is what the jury believes that is most important. In effect, the jury applied its standard, which is noted above.
WARNING: CHANGE THE PARADIGM OF EVALUATION
Society’s traditional norms and values have evaporated, making this a fertile time for plaintiffs. A good example is the instance back in December where a Brinks truck in New Jersey spilled about $600,000 on the highway. This led to a frenzy among drivers who stopped to gather up bills, and to date nearly $300,000 is still missing. Suppose the people who absconded with the $300,000 are your jurors? Are they likely to care that Kroger argued, “The criminal act that paralyzed plaintiff was not reasonably foreseeable as a matter of law”?
Meanwhile, there is daily political talk about rich corporations not paying taxes while raking in record profits. In sum, this environment leads to juries who are more willing than ever to ignore the facts and law in order to allow the plaintiff his/her perceived “fair share,” which will be paid by the corporate defendant or its insurance carriers.
In catastrophic injury cases (not just criminal act cases), insurance companies and large companies need to re-assess how they are approaching and evaluating these cases. The Disruptive Lawyer reported the Kroger result to a few clients, who all then explained why cases they were handling were “different.” But are they thinking like jurors? The industry needs to change its mindset, with less emphasis on “facts and law” and more emphasis on the changing belief system of jurors – the decision makers in these cases.
It is time to change the paradigm of thinking and develop strategies to better assess the chances for a defense verdict and if that is unlikely, to develop a serious mitigation strategy to avoid these extraordinarily high verdicts. In effect, think DISRUPTIVELY!
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