Trial of the Coverage Case (Part 1)

Many judges believe coverage to be somewhat akin to the ancient Greek language, something that only a small number of individuals can understand and interpret, and have developed mental blocks to the subject. Jurors are even worse. They buy insurance for their cars and homes; however, their knowledge is usually limited to the fact that the policies are very long, the print is very small, and the terminology used is foreign to them.

There are also inherent prejudices to overcome, especially for insurers. All judges and jurors have had claims denied by insurers or have close friends or family members who have had claims denied by insurers. The claims may have been properly denied. However, the spin put on the story by the time they hear it is that the claim was clearly covered and serious bad faith was committed in the denial of the claim.

It would be nice to say that one solution would fit every single case. Unfortunately, it does not. Each case is unique and presents its own problems and issues. However, there are some general principles and propositions that apply to every case. This article will discuss these principles and propositions along with strategies and ideas that have worked in coverage trials in the past.

Jury versus Nonjury

The first issue that an insured or insurer must decide is whether the case should be tried by a jury or by the court. Generally, there is a knee-jerk reaction by insurers that the case should always be tried by the court and by insureds that the case should be tried by a jury. This is not always the case. In many instances, a jury may favor an insurer, and a bench trial may favor an insured. This, of course, depends on the facts and factors that exist in the case.

Jury Trial Pros and Cons

What are the pros and cons of trying a coverage case to a jury? There are many concerns that must be addressed before deciding to try a case to a jury. First, a party will not know who will be on the jury until the day of the trial. You may end up with a very conservative or a very liberal jury. You will not know this until voir dire has been completed and the jury has been seated. You may be aware of the general makeup of the panels of juries for that particular county, and this may give you some idea of what your jury will be like, but nothing is certain.

A second concern that must be addressed is that most, if not all, of the jurors will be insureds. They will have an auto, homeowners, health, or some other policy and will, in all likelihood, have had some experience in filing claims with insurers. While many will have had an excellent experience in the way they were treated by their insurer, undoubtedly there will be many who feel they have not.

A third issue to be addressed in deciding whether to try your case before a jury is the ability of a jury to stay focused on the issues. If the case can be tried in one day, this should be no problem. On the other hand, if the case will take 2–3 weeks to try, the issue becomes more problematic. Will the jury be able to stay engaged the entire time? If you are the defendant in the case, will the jury still be paying attention by the time you start presenting your case? Or will they have made up their minds?

A fourth issue to be addressed is the complexity of the case. As stated earlier, coverage cases are inherently complex. Many people, including jurors, cannot or do not want to understand insurance coverage. They have their own policies at home—their auto, homeowners, and health—and the policies are lengthy, indecipherable, and expensive.

A final issue to be addressed is the length of the trial. Our society is becoming a highly visual society. Not only are we becoming a visual society, but the visual presentation must take place in 1–2 hours or interest is lost. The attention span is critical. Despite the overprescribing of Ritalin, attention deficit disorder is running rampant in our country, and this is true of American juries. It has been known to run rampant on the bench. If the trial is one that will last 2–3 weeks, this issue must be taken into consideration by counsel in deciding on whether a jury is preferable to the court.

Nonjury Trial Pros and Cons

The only alternative to a jury trial is a nonjury trial. As with a jury trial, there are several pros and cons that must be considered in deciding the forum for the trial of the coverage case.

First, you will generally know who you are trying your case to, that is, realize which judge will hear the case. This is critical. It allows counsel to evaluate the judge’s predispositions and how they will impact the case. These predispositions could weigh in favor of a bench trial or weigh against a bench trial, depending on the trial judge.

Generally, if you are trying your case to the bench, the judge will have a greater degree of education and be in a better position to understand and assimilate the materials than a typical jury. I said "generally." Education does not equate to common sense or rationality. Just because the judge has gone to undergraduate school and on to law school does not necessarily mean he or she will appropriately or intelligently apply the law to the facts. It just means that, in most cases, they are starting out ahead of most people.

There are some cases where you may not want the jury to understand your case. If you have a very weak coverage argument and are, for whatever reason, being forced to try the case, you may not want the fact finders to understand all of the arguments because, if they do, you will lose. This muddying of the waters happens more than we would like to admit. There are some cases where a party is better off trying his or her case before the ignorant and uninformed because that is the only chance he or she has of winning.

A trial to the court is generally more advantageous when dealing with the presumptions that accompany coverage litigation. For example, under most state laws, every insured is presumed to have read and be aware of the contents of their insurance policy. Whether this is a fair presumption is not the subject of discussion for this paper. A judge will be aware of this presumption and will feel duty bound to apply it. On the other hand, everyone on the jury will be thinking that they have never actually read any of their insurance policies and that if they were the insured in this case, they would be sunk by the presumption. As a result, there is an inclination on the part of the jury not to apply the presumption even though the court has instructed them about its existence.

A final issue to take into consideration in selecting a trial before the bench or a jury trial is how the ruling will be reviewed on appeal. Technically, the judge in a bench trial and the jury in a jury trial perform the same role. They are the fact finders and find facts. However, on appeal, there is a difference in the review that is afforded by the appellate courts. The appellate courts are much more deferential to facts found by juries than they are to facts found by their brethren. For some reason, they are more likely to leave the jury verdicts standing than they are to leave findings of fact made by a trial judge alone.

Part 2 of this series focuses on the next aspects of the trial—voir dire and the choice of the company representative. Part 3 discusses the opening statement and the use of expert witnesses. Part 4 addresses the trial theme and values.