Stone Counsel

Modern insurance executives can no longer practice “business as usual”. Greater regulatory scrutiny and sharper judicial responses to carriers’ strict policy interpretations have raised the stakes for first party carriers. Liability carriers must acknowledge that competition and greater loss exposure require a re-evaluation of the notion that profits come from solely from lowering service costs: Indemnity payments must be contained, not only in the very high exposure claims, but even with the volume of smaller matters. The legal services marketplace must improve routines to bring greater professionalism to every phase of claim resolution. The profit is in the details.

Our approach to liability reduction is to aggressively limit the “sympathy dynamic”, the reality that the human beings on a jury will respond emotionally to the human plaintiff. As we discuss in our recent article “Enforcing the Roles of Judge and Jury to Limit the Sympathy Dynamic in Tort Litigation” (to read, enter here), much of the common law was designed to restrict liability for social good but the insurance industry is not receiving its full benefits. Counsel must boil down the plaintiff’s case to its core and then give the law its full impact by keeping beyond the reach of the jury any of the legal issues that the court is meant to apply to restrict liability. This requires detailed, thorough analysis of liability from the first moments of a case to give the carrier’s claims professional the information needed to determine whether the expense of challenging liability or testing damages will be warranted. Once the claims professional decides to litigate, the fight must be brought to the plaintiff, since delay hampers the defense more than plaintiff who can often put on a case with their own testimony and a medical expert holding records. As the pressure of the looming trial forces down the value of the claim, the well-informed claims professional can make profitable decisions.