In the first part of this series, Part 1, we talk about the choice between a trial to the court and a trial to a jury. This second part considers two key elements in a coverage trial, especially from the standpoint of the insurer. Part 3 discusses the opening statement and the use of expert witnesses. Part 4 addresses the trial theme and values.
The key elements we will discuss are the choice of the company representative and voir dire.
Choice of Company Representative
At a trial to the court or a trial to the jury, the insurer will need to have a company representative present. This person is the face of the company. This person exemplifies the persona, credibility, and integrity of the company. The choice of the company representative is one of the most overlooked decisions of all those made during a trial.
The primary issue is who should be the company representative? Should it be the adjuster who made the critical decisions in the case? Or should it be someone who has no knowledge about the events that are the basis of the lawsuit?
Choosing Someone without Knowledge
There are several advantages to selecting a corporate representative who has no knowledge about the case. First, you have the opportunity to select the person who projects the image desired. Generally, the better corporate representatives tend to be those men and women who are older and distinguished with gray hair and a kind appearance. The image sought is of a person like our grandparents who would never engage in any of the conduct of which the insurer is accused. The person projects credibility, integrity, and honesty.
The person will be present during the entire trial, and the goal is that the jury will come to identify the company with the corporate representative. The corporate representative is a constant reminder to the jury of the integrity and honesty of the company.
One of the disadvantages is that the person actually does know nothing. If issues of fact arise where quick answers are needed, the person will be of no help. However, because the person does not have knowledge, they should not be called out of turn.
Choosing the Adjuster as the Corporate Representative
The other alternative is to call the adjuster as the corporate representative. This approach has several disadvantages. First, you are stuck with his or her appearance. If it is good, that is fantastic. If it is bad, it's not so great. If the adjuster has beady little eyes and a rat-like quality, the jury will associate this appearance with the company. The jury will have a rat-like company representative before them the entire trial. This person will be a constant reminder to the jury.
Another danger of using the adjuster as a corporate representative is that he or she may be called out of turn. The insured may desire to call them as the first witness in hopes of catching the adjuster unprepared. You have no control of when the adjuster can or will be called. Many cases have been lost because the adjuster was called out of turn and was unprepared for the testimony. (By the way, there is no excuse for this to happen, but it does. If the adjuster is the corporate representative, he or she must be prepared to testify from the beginning of the trial through the conclusion of the trial.)
A final problem with having an adjuster as the corporate representative is that it is his or her conduct at issue. The adjuster is the person being attacked, whose conduct is being called into question. It is important for the corporate representative not to visibly react when bad testimony comes in, which it will without question. If the adjuster reacts visibly to the testimony, the jury will take its cue. The jury will know that the testimony is negative and has hurt the company. On the other hand, if the adjuster has no visible reaction, the jury quite often will not know if the testimony is positive or negative.
There have been many trials when devastating testimony has been presented, but the jury is unaware because the party and their attorney show no visible reaction. A poker face is a necessity during a difficult trial. If handled appropriately, the jury may never be aware of testimony that is harmful or potentially harmful.
Voir dire in a coverage case may be the most important phase of the case. In reality, most cases are won or lost during voir dire. However, it is amazing that many lawyers on both sides of the docket devote very little time and effort to preparing a good voir dire.
What is the purpose of voir dire in a coverage case or any case for that matter? The purpose of voir dire is twofold. First, it is an opportunity to begin to build rapport with the jury. Second, it is the opportunity to eliminate those jurors who are likely to be prejudiced against your client or your client's position.
Voir dire is the first and best opportunity to build rapport with the jury. Winning a jury trial is about one thing—credibility. The jury will go with whichever side they believe is honest and can be believed and trusted. It is all about credibility: credibility of the party, credibility of the attorney, and credibility of the positions taken.
Voir dire is the only time in the trial when an attorney can talk to the jury and receive an immediate answer. It is imperative that the attorney begin to build a relationship of trust between himself or herself and the jury at this junction.
Voir dire is also the place where counsel for the insurer should start to get the bad facts on the table. He or she should be the one who brings them up, not the other side. This establishes trust. This establishes credibility. This also can be used to eliminate jurors who are predisposed against your client.
Voir dire is also the point where the attorney should begin to build on the theme of the case. Every case should have a theme. That theme needs to commence in the voir dire and be carried through every stage of the case through closing.
The second purpose of voir dire is to eliminate bad jurors. Many attorneys and clients believe that voir dire is to select or identify those jurors who are favorable to your case. This is not the case; this is not the purpose of voir dire.
There is a danger in identifying your best jurors. For one, you are helping the other side prioritize their strikes and keep all of the good jurors off of the panel. You are wasting time that could be used to identify those jurors who are not receptive to your case. Do not help the other side with their work. Let them do their own work. Focus on your job. In coverage litigation, plenty of jurors have had negative experiences, and you will need to challenge them for cause or use preemptory challenges. Focus on these jurors—not the ones who are sympathetic.
Some lawyers are concerned about asking the negative questions out of fear that they will taint the rest of the panel or present their case in a bad light. Surveys of jurors have indicated that replies in voir dire do not change their deep-seated views any more than listening to a radio program hosted by liberals will change a conservative or vice versa. The fear of the juror's answers tainting the jury really should not be an issue.
On every panel, there will be three categories of jurors—those who are vocal in your favor, those who are vocal and are against you, and the silent minority. It is the silent minority that should cause the greatest concern. Inevitably, there is a juror who has not responded to any questions who gets on a jury and who has very strong feelings one way or the other. Yet they do not respond. When you get to exercise your peremptory challenges, you know nothing about them. What do you do? If you strike them and there is a Batson challenge,1 Texas courts have held that lack of information is not a race-neutral reason.2 Therefore, it is critical that counsel be able to personally question as many jurors as possible, especially those at the front of the panel.
1 A defendant's objection in a criminal proceeding that the prosecutor is ruling out potential jurors on the basis of race, gender, creed, etc., with the use of preemptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
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