Disputes involving realignment of the parties in a lawsuit are fairly rare.  Does the order of the parties’ names on the case caption really matter all that much?

In a speech to the House of Commons in 1947, Winston Churchill said, “Indeed, it has been said that democracy is the worst form of Government, except for all of those other forms that have been tried from time to time.”

Much the same could be said about the American system of justice. It is at once deeply flawed and soaringly majestic. How enlightened, how civilized it is of us that we resolve our disputes by submitting them to a disinterested arbiter (or a panel of twelve arbiters), rather than, for example, by taking up pistols at 50 paces.

This blog expends significant numbers of bits and bytes pointing out the profoundly, often bafflingly, mistaken decisions judges and juries make in the corner specialty of insurance law to which we devote much of our time and energy here at the Global Insurance Recovery Blog.  Yet, judging is a human enterprise and it is, accordingly, hopelessly flawed. What’s more, judges do their jobs while laboring under less than ideal conditions. They are universally understaffed, overworked, under-paid, and often under-appreciated.  And we expect of them a breadth of knowledge in the law that is unrealistically broad and deep — we expect them to be, essentially, polymaths. Yet, it is right and correct that we should push our public institutions toward a perfect competence that they could never attain but that should, nevertheless, be their goal.

But about that deeply flawed American justice system.  In a number of ways, if we were setting out anew to establish a system that would stack the odds in favor of one side or the other in resolving disputes we could hardly have come up with a scheme that appeared to be more rigged than the one we actually adopted.  Plaintiffs under our system have extraordinary advantages over defendants in the trial of cases.

Plaintiffs get to go first in a trial. The Plaintiff’s lawyer gets to tell that party’s story to the judge or jury first. Don’t underestimate what a powerful advantage this is in a lawsuit. It is well known that we tend to choose sides very early on in our exposure to the facts of a dispute.  And once we choose a side, a phenomenon known as “confirmation bias” takes over and essentially forces us to credit everything that confirms our initial conclusions and to reject everything that tends to call those conclusions into question. This element of decision-making has been so thoroughly studied and replicated that it is no longer doubted by sociologists, psychologists, and other experts who investigate these things.


Plaintiffs under our system have extraordinary advantages over defendants in the trial of cases.


Then, after we let the Plaintiff’s attorney tell the decision-maker her story first, we let the Plaintiff put her witnesses on the stand first, providing further opportunity to solidify the Judge’s or the jury’s view of who’s right and who’s wrong. As if this were not enough of an advantage, we let the Plaintiff have the last word, as well.  The Plaintiff’s lawyer is both the first and the last one to speak to the judge or jury before deliberations begin.

Two important factors — among others, of course — influence a person’s judgment about who should win and who should lose a lawsuit. They are “primacy” (what was the first thing we heard about the case?) and “recency” (what was the last thing we heard about the case?).  In our system of justice, we give one party the advantage of both of these factors.  As a lawyer who represents mostly plaintiffs in disputes with their insurance companies, I employ these odds-stacking attributes in our justice system to the fullest extent possible.  These are, then, not so much laments about the system as they are observations. It is really very good to be a Plaintiff.

So it is not surprising, perhaps, that there should be a dispute going on in a New Jersey insurance case about who gets to claim the status of Plaintiff.  What is surprising is that circumstances would permit that there could be such a dispute. After all, shouldn’t it be clear which party actually filed the complaint and which party answered it?

In fact, it is clear that it was the insurance carrier that filed the complaint in State National Ins. Co. v. County of Camden, Civ. No. 08-2158(NLH)(AMD), a dispute about whether there is insurance coverage for the County in connection with a $15 million verdict entered against the County in an underlying personal injury suit.  State National sued its insured seeking a declaration that it did not have to pay the $15 million verdict.

The issue of who gets to go first arose because the County filed a motion with the Court seeking to alter the normal order of proofs at the upcoming trial.  The County argued that, in the unique cricumstances of the coverage case, it had the burden of proof to establish that its attorney handled the underlying matter adequately and competently.  If it meets that burden, the spotlight will shift to State National to rebut the County’s showing.  In other words, the burdens in the case are such that the County is effectively in the position of the plaintiff.  It, therefore, wants to order the proofs as if it were, in fact, the plaintiff.

State National obviously recognizes the advantages of primacy and recency and is fighting the County’s application.

Hats off to the County’s attorneys for recognizing the tremendous advantages the Plaintiff enjoys in a lawsuit and for figuring out a way to attempt to claim those advantages for itself.