LAS VEGAS — Day two of the PropertyCasualty360 Complex Claims and Litigation Forum began with a keynote address from attorney Brian Panish of Panish | Shea| Ravipudi LLP, who shared insights from the plaintiff's side of insurance disputes.
Panish was accompanied by Bob Tyson, founding partner of Tyson & Mendes, who helped guide the conversation.
"I've been a lawyer for over 42 years," Panish said. "I've been trying catastrophic cases with juries my entire career, and I've seen cycles in litigation. I've seen reform efforts, tort reform, lawyer reform, but what we're seeing right now, I believe it's not cyclical. I believe it's structural, and I believe that over the next 40 years, litigation is going to be faster. It's going to be more technology involved. It's going to be data driven, but despite all the changes and all the technology, the one thing that's not going to change is trust. And when trust erodes, volatility occurs."
Panish said that there are certain future pain points that, if not addressed, will only lead to more volatility. He explained that historically, personal injury litigation has been a bell curve; with the largest share of settled cases falling into the "moderate size" category and lower and larger-value suits making up smaller shares.
"There's a large middle; moderate-size cases that would end up being settled through negotiation, but that middle is shrinking," he said. "The lower value cases are increasingly becoming automated… but what remains the same is the extreme."
The "extremes," Panish says, are catastrophic cases that grow larger and larger, and accumulate more resources and emotional weight as the cases progress.
"The extreme becomes the problem in the system, and how does that happen?" Panish presented to the crowd. "When I say polarization here… I'm not talking about distance between the sides. On one side, you have predictive analytics, reserving models, venue, probability scoring. And on the other side, you have the moral narrative, the community safety standard and the human storytelling. And when trust is high, those models align, but when trust is low, you have this great diversion, and when you have diversion, that's when volatility occurs."
One word was brought up repeatedly during Panish's presentation: Credibility.
"The number one thing now is credibility," he said. "Technology will change. Presentation of cases will change. They'll probably get faster, but who is believed is still going to be the determining factor at the end of the day if you go to court."
Maintaining transparency and not withholding documents are just a couple of ways carriers can establish credibility.
"Hardening of positions [and] over-defending small cases builds distrust. Under-evaluating catastrophic cases causes severe backlash. Instability isn't about paying more money, but it's about having more predictability in the system, and without predictability, it's bad for plaintiffs, defense, [the] insurance company. Premiums go up," he explained.
"[The] number one takeaway from this is the credibility," Panish continued. "And if credibility is there, you have predictability, but if it's not, you have volatility, and I think everyone here would agree that the best way for the system to continue is to prevent the volatility."
Jurors, he said, are not fooled by tricks from slick lawyers and are more likely to warm to a defense that shows empathy and respect for the injured party.
"I think a good defense attorney humanizes his client, but also accepts and understands and has empathy toward the plaintiff," he said. "And they don't necessarily have to agree with everything, but I think they need to be nice to them, unless it's, you know, some plaintiff that they've got them on sub rosa… but if the plaintiff is pretty pure, you've got to be real careful with the plaintiff."
He established this point by sharing an anecdote.
"I've seen lawyers that have not asked questions. Now, I make a motion on this, but it works if the lawyer's not paying attention," Panish began. "You have the widow on, the guy is killed, the widow's on the stand, and what are they going to really get right? There's no problem with the marriage. The guy stands up and he says, 'Mrs. Morales, we're so sorry for your loss,' and he sits back down. That was it, and it kind of takes the wind a little bit out of the sails."
(Photo credit: Brittney Meredith-Miller)
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