California Insurance Bad Faith Litigation

After making the decision to take all of my cases to trial in 2011, here are the important lessons I learned as a California plaintiff’s trial attorney:

1.    Taking each of your cases to trial generally works in your client’s favor.

Defense attorneys (and their clients) will offer your clients pennies on the dollar for your client’s harms and losses, until the defendant is fully convinced you will take a case to a jury of your client’s peers. Even then, most defense attorneys (and their clients) require you to show up and begin trial (whether you get to voir dire, opening statement, witness testimony, or closing argument) before offering a reasonable settlement amount. I think they do this because they know most attorneys are not willing to go to trial.

Even though I attempted to take every case to trial in 2011, only three cases actually made it, with one settling right before voir dire, and the other two going all the way to a verdict. All other cases I had in 2011 settled generally between 30 days out to the day before trial.

This is an important lesson. It is very likely the only way you will obtain a fair settlement for your client is to be prepared to take your case to trial—and then take them to trial if the defendant refuses to offer a reasonable settlement.

2.    Jury instructions and element outlines are mandatory.

When I first became an attorney I remember hearing the better attorneys say you have to know the jury instructions and create an elements outline. I had no idea what they were talking about. I do now. Before taking a case, spend time looking over the jury instructions applicable to the case you’re considering taking on. What facts do you have that satisfy each of the jury instructions? Make an elements outline of each jury instruction, including a brief description of the facts you have (or need to have) to satisfy each instruction.

This takes some work early on, but it’s worth it. It helps you focus on what facts you have, and what facts you need to obtain in the discovery process. If you learn new and needed facts during discovery, be sure to update the elements outline.

3.    Hire experts early on.

Experts are expensive—but worth every penny. There were several cases we looked at taking in 2011, but had to decline after experts told us the potential case had no chance of winning. It’s always difficult to have a conversation with a potential client letting them know they don’t have a case, but better to do this early on before putting them through the hell of several years of litigation, and then having the same conversation.

Experts are also great because they focus you in on the facts you need to obtain in the discovery process.

4.    Don’t be afraid of motions for summary judgment.

I used to be terrified of getting motions for summary judgment. I then changed the way I viewed these motions. First, I now expect that a motion for summary judgment will be filed in every case—and that takes the surprise and fear element out of the equation. Second, because I’ve done my homework with the jury instructions, created an elements outline, and hired experts early on, I am able to file an opposition that will likely be granted. It actually makes it fun (okay, not exactly fun) to put your opposition together.

Motions for summary judgment also alert you to the arguments and facts the defense attorney will use at trial. This gives you additional time to contemplate how you plan to respond to these arguments and facts at trial. We really should be welcoming motions for summary judgment. I’m not there yet—but hope to be sometime in 2012.

5.     Bring motions to compel during the discovery process.

Defense attorneys know that many (if not most) plaintiff’s attorneys will not take the substantial time required to bring motions to compel during the discovery process. Don’t make this mistake. Defense attorneys will always give you garbage responses in the first go around of written discovery. When this occurred in 2011, I brought motions to compel immediately (of course after my meet and confer letter was ignored). It not only let the defense attorney know I wasn’t going to allow him/her to play games, it made future responses from the defense attorney so much better.

6.    Spend less time objecting at deposition and more time on motions in limine.

I used to treat depositions as an “objection” exercise. Now I don’t do that (unless absolutely necessary). If the defense attorney is questioning my client and I’m uncomfortable with the questions, I simply mark these down in my notes and indicate in my notes that I need to bring a motion in limine to keep this evidence out at trial. In most cases, these uncomfortable questions are either (1) not relevant, (2) lack foundation, (3) are inadmissible hearsay, or (4) can be kept out as “unduly” prejudicial under California Evidence Code section 352.

When you don’t object, it’s amazing how much information a defense attorney is willing to provide in a deposition that you can identify for future motions in limine. Let the defense attorney “win” the deposition—You “win” when it matters at trial when the court grants your motion in limine and keeps the bad facts out.

Worst-case scenario—the Court denies your motion in limine. At least you have the first opportunity to address these bad facts in your opening statement, which will likely remove the sting the defense attorney is hoping for.

7.    Practice, practice, practice for voir dire and opening statement.

My poor legal assistant. I make her listen to my voir dire questions and my opening statement, over and over again. I want her to poke holes in my questions and opening statement. I also ask anyone else who will listen about these issues. The more you practice the more comfortable you become. I don’t think many defense attorneys spend time doing this—and it shows.

8.    Send defense attorneys all trial documents 30 days out from trial.

Don’t worry about showing your hand too early. Defense attorneys are extremely busy with all the cases they’re required to handle, and likely won’t have time to spend much time with your trial documents in any event. Sending defense attorneys proposed joint exhibit lists, witness lists, a statement of the case, jury instructions, and your trial brief will surprise them. Most plaintiff’s attorneys don’t do it—you should.

9.    Don’t be nice to defense attorneys.

I’m tired of hearing that we need to be civil with the defense bar. I would agree with being nice if the defense bar felt the same way—but they don’t. It’s been my experience that defense attorneys will do anything required to make your client’s case go away. It still amazes me (although it shouldn’t) that defense attorneys are willing to demonize and attack individuals who have suffered substantial harms and losses due to their client’s irresponsible actions. The purpose is to stress the plaintiff so he/she will take a small settlement or dismiss a case in its entirety.

In one of my recent cases, the defense attorney, in deposition, wanted to know how many times my client had sex with her husband in the year prior to his death, which was caused by the intoxicated defendant. Apparently this was to somehow show they did not have a good sex life, which leads to them somehow having a bad relationship, which in turn leads to somehow my client hating her husband and glad that he’s actually dead. I know it takes huge leaps of logic to get there, but defense attorneys don’t care about the logic, they care about stressing your client and making litigation more miserable than it already is.

In another case, a large defendant corporation that manufactures surgical mesh that destroyed my client’s vagina wanted to know in deposition if my client had attempted sexual intercourse after the mesh destroyed her vagina. My client answered “yes” she attempted to one time but could not due to the substantial pain she felt. The defense attorney then wanted to know whom she attempted to have sex with. I directed my client not to answer that question based on her right to privacy. The defense attorney threatened to bring a motion to compel. I told the defense attorney to bring the motion. I couldn’t wait for the court to hear that one. Of course the defense attorney already had the information she was seeking as she previously heard two treating physicians of my client testify at deposition that it was very unlikely she would ever have pain-free intercourse for the rest of her life due to the substantial scarring. But that wasn’t enough, the defense attorney wanted to know whom she tried to have sex with.

Finally, in a recent sexual harassment case, the defense attorney wanted to know how many sexual partners my client (a female) had during her lifetime. Then he wanted to know how many sexual partners in the past 10 years, then 5 years. I did not allow my client to answer these ridiculous, invasive, and despicable questions.

Am I still supposed to be nice to defense attorneys after this type of behavior? I say no. Let’s stop being nice to defense attorneys who choose to act inappropriately.

10.    Never give up.

Never giving up may be the best trait of a trial attorney. No matter how bad things seem, don’t give up.  Everyone will tell you that your client won’t win or doesn’t have a case. You’ll hear this multiple times from the defense attorney; you’ll hear it from the mediator; you’ll hear it from a judge at the mandatory settlement conference; you’ll hear it from the doubt that creeps into your thought process when you’re attempting to fall asleep at night. Don’t give in to these doubts.

The good news is that most defense attorneys advise their clients to offer almost nothing before trial to settle the harms and losses they’ve created. These insignificant settlement amounts make it easy to go to trial—after all, you won’t do much worse if you get defensed at trial. That makes it easier for me to handle the doubt that I will inevitably feel going to trial. Chances are, if you don’t give up, the defendant will come up with a reasonable settlement amount a few weeks out from trial. But if they don’t, take them to trial. There’s no reason not to.