Ready to Rumble
Two renowned attorneys from opposite sides of the courtroom talk about their big perspectives on big insurance lawsuits.
Robert Horst is a founding partner at Nelson Levine de Luca & Horst where he represents insurers in coverage disputes, bad faith litigation, class action defense and the investigation of suspected fraud and has tried multiple matters to verdict. He is the co-author of the book Extra-Contractual Litigation Against Insurers and serves as general counsel to the International Association of Special Investigative Units. He is a graduate of Villanova's School of Law. www.nldhlaw.com
Joseph Cammarata is a trial attorney and partner at Chaikin, Sherman, Cammarata and Siegel in Washington, D.C., concentrating on serious personal injury, brain injury, wrongful death and medical malpractice. He litigates against insurers and governmental entities and has distinguished himself by winning a unanimous decision from the U.S. Supreme Court, permitting his client's case against a sitting president, Bill Clinton, to move forward, thereby denying the president the immunity he sought. He received the Department of Justice's Outstanding Attorney Award of 1989, co-founded the Brain Injury Association of D.C., serves on the Board of Governors of the Trial Lawyers' Association of Metropolitan Washington, D.C., and has chaired multiple philanthropic and civic boards. He graduated from St. John's University School of Law, holds a master's of law in taxation from Georgetown and is a certified public accountant. www.chaikinandsherman.com
Editor’s note: Robert Horst and Joseph Cammarata answer questions from Claims Advisor’s managing editor. If you have follow-up questions or comments, we invite you to e-mail them to firstname.lastname@example.org or comment on Facebook.
CLAIMS ADVISOR: Both of you have had some big-money lawsuits over the years. Let's start by talking about each of your perspectives. Bob, you regularly represent the insurer in claims lawsuits, right?
ROBERT HORST: That's right. My practice is focused on the representation of insurers. Those cases usually involve coverage disputes, class action cases, and allegations of insurer "bad faith." One of the interesting things about my practice, I believe, is the focus on insurers. I really enjoy it. In terms of my perspective though, I learned a lot in the first seven years of my career when I worked in a plaintiff's practice in Philadelphia. Fresh out of law school, I represented plaintiffs in cases of varying size and complexity. But I learned to deal with clients that had only one case to worry about. It was incredibly valuable to me as a lawyer and a person. It opened my mind to the importance of that one case.
CA: Joe, your specialty is the claimant, but you still interact quite a bit with the claims side of insurance companies. What's your expectation walking in?
JOSEPH CAMMARATA: To win the case! I've prepared in the discovery phase so that I'm confident of the outcome. We take an aggressive, creative approach to the discovery phase, so when we present our side, the insurance company recognizes that there's a significant risk to bringing the case to trial. That usually leads to a successful resolution of the case without trial. There are some companies, however, that have a skewed risk analysis—they force the case to go to trial. When that's the situation, given our discovery and pre-trial prep, we're confident of a successful result at trial. We find that when there's a skewed risk evaluation that results in a low pre-trial offer, the result is usually a jury verdict that's in excess of the low offer.
CA: Bob, how do claims personnel need to prepare for one of these big lawsuits?
HORST: Claims professionals, especially those handling high-exposure claims, are already experienced and very well trained. They are prepared to assess and analyze the claims they are handling. So claims professionals are best prepared when they have a strong command of the operative facts and the legal theories of the case. There's no substitute for it, but it does take time. There may also be any number of other intricacies that make the matter challenging to handle. Maybe the facts are disputed, or there are legitimate coverage issues. There may be widely different opinions regarding the case's value.
In addition to this preparation, there is, of course, the selection of experts and counsel. Large cases can take on a life of their own, and the claims person responsible for a matter like that—with multiple parties and thousands of documents—has to stay involved during the entirety of the case. The need to have a strong relationship with counsel and ongoing communication is critically important, too.
CA: Major claims often involve forensic investigations. We hear a lot about special investigators, the use of social media, and the application of other forms of technology, particularly in computers and data recording. What's your experience with the different investigative techniques, and how do you merge the findings of the two sides?
HORST: Claims of all sizes involve the use of technology during the course of investigation. However, aside from all of the technology available to claims handlers and to litigators, my experience has been that an experienced, capable investigator will best reveal the truth. A significant portion of my practice is dedicated to fraud detection, investigation and the prosecution of fraud matters, and I work closely with insurers' special investigative units. It's been my experience that the investigators themselves are most effective. Technology, even in its most advanced forms, is just a tool. That said, you asked about merging the findings of the two sides. When presented with facts or legal arguments from a claimant or a policyholder, the key is reasonableness. So much technology is available to both sides.
CA: Joe? Forensic investigations? Social media?
CAMMARATA: Some states don't allow accident reconstruction, but even where they do, at the end of the day, it comes down to the witnesses. I had a case of a horrific collision on the [Washington, D.C.] Beltway. My client's car was hit by another and rolled across several lanes of traffic, causing multiple serious injuries. The wrongdoer's insurer brought in one of these forensic experts who tried to make the case that something else could have happened. I went straight to the eyewitness. She said, "I was driving right behind him. I saw the one car hit the other and send it flying." Bang! We won that case.
CA: Do you actually do the legwork, or do you have someone who does the interviews for you?
CAMMARATA: I interview the witnesses. I'm the trial lawyer. I need to know what's going on myself, how the witnesses will withstand scrutiny if they are expected to testify at trial.
CA: And what about interviews of your client?
CAMMARATA: On the defense side—they'll ask for the examination of the victim. The results are typically slanted toward the defense. That's alright. We expect that result. We take the doctor's report and blow holes in it under close, precise questioning.
CA: OK, but how about video recordings? Don't they worry you?
CAMMARATA: No. Private eyes? Yes, they exist. Surveillance videos by insurers—the ones I've seen? My reaction? I really hope they didn't spend a lot of money on them. The jury doesn't want to see this "peeping Tom" stuff. If some guy says he's in a coma and suddenly he's on tape not in a coma, that's a different story. But chasing somebody around to show they carried a bag of groceries into their home when they said they were injured—the jury's not very impressed by that and often punishes the defense for invading the victim's privacy.
On the social media thing, my clients aren't out there revealing contradictions. I don't have clients who come in saying they've got a permanent back injury that then go on Facebook and say, "Wow! We had a great day at the amusement park. That rollercoaster was awesome!"
CA: You'd be on them.
CAMMARATA: Yeah, that's right, but that's not a problem with our clients. We're not in the business of promoting exaggerated claims. We're trying to obtain full and complete justice for our clients who are genuinely injured through no fault of their own.
CA: Do you find that there's usually a spirit of cooperation? Can you run us through a typical process of information sharing?
CAMMARATA: It totally depends on the adjuster and the defense lawyer. You can have aggressive lawyering without being nasty. But some of these insurance types view everyone as a cheat, a malingerer. The victim starts in a hole. The information exchange becomes more contentious as a result.
CA: I suppose out-of-court settlements are common. Those are paperwork heavy?
HORST: Yes, settlements are common. Of course they are! With so many claims and pending lawsuits, the reality is that claims and cases will settle. Many cases and claims have tremendous merit, and it's been my overwhelming experience that claims people—who are in the business of paying claims—make reasonable claims payments every day. They settle lawsuits every day. And yes, some lawsuits settle because of the tremendous risk they pose to a carrier or to a defendant insured. What may be a very defensible case will still settle, simply to avoid the risk of a verdict. Settlements can generate a fair amount of paper, but many are simple and straightforward. It depends on the case. For example, a class action settlement, given the due process issues and the involvement of the trial court, involve tremendous work by the parties, the court, along with multiple filings and hearings.
CAMMARATA: Like Bob says, it depends on the case. If the lawyers can work it out, that's one way that's pretty easy to resolve a case. In bigger cases, we use a mediator that's respected by both sides. We provide that person with information developed in the case, such as depositions, police reports, and medical records, along with our statement of position, so as to give the mediator a better understanding of the issues in the case. I like to do an opening statement so the adjuster hears directly from me what the defense's problems are in the case and how my client's case will resonate with a jury. In one case, we were suing on behalf of a victim who was hit by a tour bus in a dark parking lot. There were no witnesses, and the victim had no memory of the event. I guess it could have taken a lot of paperwork and been complicated, but I walked in the mediation room and at the start of my opening asked the adjuster, "Did I hit you?" several times. Of course, everybody was looking around like, "What is he talking about?" It was absurd because clearly I didn't hit anybody. Then I started my opening statement in earnest: I recounted how the first thing the bus driver said to my client when seeing him on the ground in the parking lot was, "Did I hit you?" Who would ask such a thing if they didn't suspect they were at fault themselves? The point was made that the jury would likely conclude—just as the bus operator did himself—that the bus operator ran over our client. The adjuster took a break, made a few phone calls and we resolved the case.
CA: On the flip side of the coin are the contentious cases—they end up in court. There have got to be some extra considerations for the insurer's claims department regarding litigating. Bob, what do the claims people need to know?
HORST: You're right, some cases go to trial. Despite the unpredictability of a jury—or a judge—these cases wind up not only in suit, but at trial, for various reasons. These are commonly liability issues or a strong disagreement regarding the value of the case. Insurers, in my experience, are quite sophisticated in assessing the risks associated with litigating a case and seeing it through to verdict. There are multiple factors considered in assessing the value of a case, and I'd fail to list them all, even if I tried. But, after an analysis of liability and damages, some examples include the jurisdiction, attorneys involved, the trial judge, even the time of the calendar year. Some of those softer factors are almost impossible to quantify. To answer your question, claims people are under incredible pressure to accurately value cases and claims. This is not always an easy task, but the carriers that I have dealt with manage their cases, and the accompanying risk, very well.
CA: Joe, anything the claimant's side is going to throw at the insurer that Bob hasn't covered? Any things that you've noticed that catch the insurer off guard or unprepared?
CAMMARATA: No, not really. We don't have any real "tricks." But we're going to think the case through from the jury's standpoint. We always take preparation seriously and aggressively. The thing that most hurts the insurer is lazy lawyers. They don't know their cases well. We see it. They come in unprepared, uninformed.
CA: Let's talk about discovery for a minute. We had a contributor to the magazine who brought up a great point about being careful as to what you ask for and whom you discuss claims with [see Claims Files That Blab]. The caveat was that you can easily get things into the file that are discoverable that could sway a jury to your opponent's side if you're not thinking about the possibility of litigation from the word go.
HORST: So many cases are won and lost in the discovery phase. More often though, I've seen the value of so many cases impacted during discovery simply because a lawyer wasn't prepared or was out-dueled by another lawyer. A good lawyer makes a difference in the discovery phase. A great lawyer makes a case. The anticipation of litigation will differ from claim to claim, but, once litigation is reasonably on the horizon, you don't just plan for discovery, but for trial too. I also believe that the truly outstanding trial lawyers, especially on the plaintiffs' side, do their best work during discovery. They make it impossible to miss the power of their case, their story, and that, on these facts, they'll win.
CAMMARATA: I agree with Bob. Often a case is won or lost in the discovery phase.
CA: Before we conclude, I'd like to give you both a chance to tell a war story or air a pet peeve.
HORST: I reject the stereotype that insurers don't pay claims. That's ludicrous. Billions of dollars are paid on claims each year. It's the reality that honest, hardworking people—your friends and neighbors, for example—assess and pay claims. They act reasonably. They empathize with their policyholders. To paint claims professionals any other way is inaccurate and unfair.