Ricardo Echeverria Trying an insurance bad-faith case to a jury
From voir dire through closing argument for punitive damages and bifurcation of attorney fees, this is your roadmap Trying an insurance bad-faith case
Understanding this unique quality of
and obtaining an award of punitive dam- ages presents challenging and unique issues. As is the case in most trials, voir dire is one of the most, if not the most important, part of an insurance bad-faith trial. Generally speaking, jurors tend to have negative feelings about insurance companies. In many cases, jurors have had, or know someone who has had bad experiences with insurance companies in handling claims. Obviously, it is important to find out about all of a juror’s experi- ences, both good and bad, in dealing with insurance companies. Ultimately, regard- less of whether the experience was posi- tive or negative, you must obtain a com- mitment from a potential juror to set aside that experience and decide the case based on the evidence presented in trial. Voir dire is also the first opportunity you
have to explain to jurors the purpose of insur- ance. Everyone has some form of insurance, but people don’t think about just how unique a product it really is. Unlike other products we consume, insurance is something that we buy that we hope we’ll never have to use. We don’t buy homeowner’s insurance
hoping that our home will burn down; we don’t buy health insurance hoping that we’ll get sick; and we don’t buy life insur- ance hoping that we’ll die unexpectedly. Rather, we buy these types of insurance so that if our home burns down, we can replace it; or if we get sick, our medical bills will be paid; and if we die suddenly, our family will be protected. So what are we really buying with
insurance? Peace of mind. We certainly don’t want to have an insurance claim because when we do, something bad has happened. But that is why insurance is so important because it is there to protect us when we are the most vulnerable. Voir dire is the starting point to have jurors thinking about the reason we all spend hard-earned money buying insurance – peace of mind and security.
20— The Advocate Magazine JUNE 2011
insurance will help jurors better under- stand why insurance companies owe a duty of good faith and fair dealing. It will also give context to jurors to know why there are special rules that apply to insur- ance companies when handling claims. Those special rules will be later covered during your case in chief through cross examination and your claims handling expert as discussed below. Another critical topic to cover during
voir dire in a bad-faith trial is the subject of punitive damages. Many jurors will have some knowledge of punitive damages from having read the newspaper or watch- ing television. It is important to ask jurors to express their feelings about punitive damages, whether they be positive or neg- ative. If a juror has negative feelings about punitive damages, resist the temptation to automatically try to convince them that they’re wrong. Instead, find out the rea- sons that a juror harbors such negative feelings about punitive damages. Most of the time, you’ll learn that it’s based on what that person has seen or read in the media about large verdicts. If so, ask the juror if they would agree that the media only reports on larger newsworthy verdicts that will catch the attention of the public. Most jurors will agree with you. Ultimately, the goal is to have jurors
with an open mind about awarding puni- tive damages based on the facts you pres- ent at trial. Even a juror who comes to court with negative feelings about puni- tive damages may be a good juror if they recognize that their negative feelings are based on what the media has reported and that they may not have the full pic- ture. Of course, if a juror cannot keep an open mind about awarding punitive dam- ages even if the evidence supports such a finding, you must have that juror excused. While there may be jurors who are
initially against punitive damages, many jurors believe that punitive damages are
appropriate “in the right cases.” You should embrace that notion wholeheartedly with jurors. Explain to jurors that punitive damages should only be awarded if the jury makes the requisite finding that they are in order based on the evidence that you present during trial. This sends a powerful signal to the jury that you have confidence that the facts of your case will support a finding of punitive damages. This will also help you explain the two phases of your trial during opening state- ment as explained below. Finally, ask jurors what they believe is
the purpose of punitive damages. Most will agree that punitive damages serve a public purpose of punishing bad conduct and deterring future misconduct. It is important to cover these general princi- ples about the purpose of punitive dam- ages because you will need to remind the jurors of them at the end of the trial during closing argument.
Opening statement: telling the story and establishing your theme Delivering an effective opening state-
ment in an insurance bad-faith trial requires extensive preparation and organi- zation. Typically, insurance bad-faith cases involve hundreds, if not thousands of doc- uments that you will have obtained during discovery. In order to effectively tell the story of your case, avoid showing the jury too many documents; that is likely to bore them. Instead, show only the key docu- ments and to help the jury keep the story in perspective, use a demonstrative time- line as you walk the jury through the facts. The timeline should be used throughout your opening statement so that the jury has a visual of the chronology of events. In addition to telling your story, the
opening statement is a time for you to establish the theme for your case. You should be able to succinctly tell the jury what the case is about. For example, a
See Jury, Page 22
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