How to Try More Cases

Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman’s efforts to cover lawyers on both sides of the aisle to try more jury trials… and make cases easier to try. How? Buy reaching stipulations on all the dumb things lawyers argue about.

Great idea that will never work in a vehicle accident or med mal case in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don’t screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other’s experts. After a large verdict, every insurance company does a CSI forensics witch-hunt. “You did not depose the plaintiffs’ experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?” Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strikeout.

When you couple this atmosphere with outside counsel’s incentive to bill the file as much as they can – a problem that the article drives by, but does not really address – you just have a dynamic that will not lend itself to creative deals getting done to make cases simpler to try.

Another thing interesting about what Susman believes in is that the goal is to “slow the shift toward arbitration and other less costly ways of settling fights.” The article does not give him a chance to explain why. I don’t disagree with this assertion, but every article you read about mediation and arbitration holds these alternative dispute mechanisms to be the key fair and efficient administration of cases (and to world peace to hear the converts preach). Generally, I think more jury trials are a good thing for plaintiffs but a bad thing for defense lawyers who are trying to avoid the spotlight of a bad verdict.