Many defense attorneys have noticed that the mindset and strategy they have found effective for many years are no longer achieving their desired result. The plaintiff's bar is looking to win, and they want to win big, pursuing nuclear settlements and verdicts. As such, plaintiff attorneys are not only positioning their arguments in a way that deeply resonates with the jury, but they have greatly increased the aggressiveness shown to opposing witnesses, mainly through manipulative reptile questions.

With this change in approach and considerable economic issues surrounding the value of any individual case, defense attorneys must be prepared to go on the offensive, laying out their case to prove why they should win. By employing the right strategies, such as mock trials and effective witness preparation, insurance defense attorneys can be more proactive and aggressive in their litigation strategy, maximizing their chance of seeing superior settlement and verdict outcomes.  

What are the best strategies for an insurance defense attorney? 

Tasked with protecting the overall interests of insurance companies, insurance defense attorneys play a key role in working with insurers and their policyholders to defend them from lawsuits. Defense attorneys should utilize mock trials, witness preparation, and a more assertive style as they work to defend these cases.

Strategy #1: Mock Trials

Mock trials are an exceptional tool for litigation teams with the potential to provide pivotal case information, and they are something that the plaintiff's bar is doing with increasing frequency, particularly for potentially high-value cases. For cases where there is the possibility of seeing a nuclear settlement or verdict, the plaintiff's counsel can conduct five or more focus groups or mock trials. The reason for doing this level of research is because the plaintiff's counsel knows that’s how you can drill down on the key issues, test the case elements, and predict the potential range of damages. By the time they get to trial, the plaintiff's attorney knows exactly the key phrases and points they must focus on.  

On the defense side, far too often, insurance clients will either not want to pay for litigation consulting services or they will want it done as inexpensively as possible, which could result in unusable data if the mock trial or focus group isn’t conducted scientifically. However, in the end, being proactive through mock trials and focus groups is strategically more advantageous and economically more pragmatic. 

This proactive approach is financially more beneficial as it increases the chances of favorable verdicts and more reasonable settlements. This research can assist defense attorneys in identifying an opportunity to settle a case for less than what a jury may award at trial. Conversely, it can help ensure clients don’t overpay on a settlement where they might do better at trial.

Strategy #2: Witness Preparation

Poor depositions have the potential to be economically disastrous, and a plaintiff attorney's ability to compel a defense witness into delivering damaging testimony improves their leverage at mediation and trial. It’s no surprise that plaintiff attorneys have become far more aggressive with witnesses. Often used to elicit damaging testimony, reptile attacks by plaintiff attorneys can take down defense key witnesses, leaving them susceptible to making errors that can devastate your case. 

Although most cases will settle, unexpected testimony at any point can be catastrophic in litigation. With that in mind, defense attorneys cannot wait until the week before trial to prepare witnesses. Without extensive preparation, witnesses may be easily thwarted by their emotions, making them susceptible to making mistakes. During witness preparation, defense attorneys should attempt to make the practice experience more difficult than it will be during their actual testimony. While these preparation meetings don’t necessarily have to be long, starting them early allows for adequate time to train witnesses to thwart any neuropsychological manipulation they may encounter during questioning. 

Rather than making witness preparation your last priority, the immense magnitude of witness performance on settlement and verdict outcomes necessitates that witness preparation should be a top priority for insurance defense attorneys. 

Strategy #3: Develop an Assertive Style

The formidable behavior seen lately by the plaintiff's counsel often puts the defense on a weaker footing and causes them to approach the case reactively rather than proactively. However, developing a more assertive style can be particularly difficult for young attorneys, primarily because many law firms try fewer cases annually than they have previously done. 

Therefore, it is becoming more important for young attorneys to take any opportunity they can to get in front of people, whether assisting with a mock trial, helping to conduct deposition witness preparation, or seeking out other opportunities to present to a group of strangers. Witness preparation tends to be a handy tool for helping attorneys practice developing their assertive style because the skills utilized during that preparation time translate into taking a good deposition, which further translates into performing well in a courtroom in front of a judge, jury, and opposing counsel. Attorneys should remember that getting and accepting feedback is another aspect of developing a more assertive style. Being able to take constructive criticism well, and incorporate that feedback, can be instrumental in growth and development. These skills must be honed regularly to see the greatest improvement. 

Courtroom Sciences can help insurance defense attorneys minimize litigation costs and settlement amounts by providing science-backed data and expert support. Learn how CSI's litigation consulting experts can aid your next case. Speak with one of our experts to get started.

Key Takeaways

●  The plaintiff's bar is actively pursuing nuclear settlements and verdicts, making it more important for insurance defense attorneys to be more proactive in their litigation strategy.

●  Mock trials are an exceptional tool for litigation teams with the potential to provide pivotal case information and increase the chances of more reasonable settlements.

●  Without adequate preparation, witnesses may be easily thwarted by their own emotions, leaving them susceptible to making mistakes that can derail your case.

●  At Courtroom Sciences, we aim to help insurance defense teams minimize litigation costs and settlement amounts.