The Thursday morning panel provided insightful commentary on effective strategies for defending bad faith claims, including development of defense strategy and trial tactics that are effective with juries. The panel stressed the importance of developing a case “theme” that will resonate with the jury. The theme should be easy to understand, compelling, and should be consistent through all phases of the trial. Themes often turn the tables on plaintiffs or their attorneys. For instance, one effective strategy may be to highlight particularly egregious attorney’s fees. The panel also provided tips in the jury selection process, including the dangers of adhering to preconceived notions of what may constitute a desirable juror.
The panel went on to discuss techniques to manage and rebuff discovery tactics employed by Plaintiffs’ counsel, particularly in the context of “institutional” bad faith allegations. The panel discussed developing a comprehensive discovery plan both for leveraged-coverage cases, where the allegations of bad faith are particularly weak and have been raised by plaintiffs in an effort to pressure insurers to settle, and for cases where there are genuine issues of bad faith. In the leveraged-coverage case, the panel suggested aggressive discovery early on in order to set the bad-faith claims up for dispositive motion. In contrast, where the allegations of bad faith are genuine, the discovery plan should focus on gaining a careful understanding of the allegations, as well as an appropriate application of the attorney-client privilege, the work-product doctrine, and other privileges and doctrines during the discovery phase to limit the scope of discovery. Panelists provided insight as to how to spot institutional bad faith claims, and offered tips on how to minimize discovery, including objections on the grounds that an individual plaintiff’s discovery requests for corporate financial information, claims handling guidelines, and unrelated claims files are not relevant and unduly burdensome.