Dallas Fort Worth Insurance Lawyer Blog

There are two important phases at the end of a trial – the jury charge and the closing statement.

Most courts will not approve a jury charge until after the close of all evidence.  Therefore, the charge conference will often take place once a jury has been dismissed for the day or prior to the time that a jury reports for the day.  Lawyers should have the pattern jury charges on hand during the charge conference as well as copies of their proposed charge.  Experience lawyers will also have a template of prior jury charges to help expedite the matter.

I.  Cause of Action – Each cause of action pled by the plaintiff should be the subject of a jury question.  The trend in recent years is for each respective side to produce a proposed jury charge as part of a Joint Pretrial Order.  In the event any changes need to be made, a party may submit an amended jury charge.  Regardless, the most recent jury charge on file is the one that will be taken up in the conference.  Lawyers should be prepared to argue all aspects of the jury charge.  While most jury instructions are form submissions, some jury questions require special instructions, which should be listed prior to the question.  For large cases, have an appeals attorney to consult is wise.

First party insurance cases are unique.  Filing complaints with the Texas Department of Insurance is usually a waste of time unless the complaint has something to do with a criminal act on the part of the insurance company.  The Texas Insurance Code, Chapters 541 and 542, among others are helpful.

But if no other recourse works and an insured has to hire a lawyer, file a lawsuit, and try the case, witnesses make a big difference in the outcome.

The most effective trial attorneys do not waste time badgering witnesses or asking irrelevant questions to set up their points.  Counsel should know the case inside and out and be prepared with the key points you need from each witness.  Having a working knowledge of the exhibits and deposition testimony in the event you need to impeach a witness is imperative.  Further, it is important to keep the potential jury charge in mind when determining the points to discuss with each witness.  When examining a witness or expert from out of town, counsel should plan to have them on call and prepared.  An out of town witness should arrive a day prior to their testimony to ensure there are no issues with travel and that there is time to go over testimony in a controlled setting.  Scrambling to rearrange witnesses due to delay can negatively affect the way the case is presented.

Experienced Insurance Law Attorneys will try their fair share of cases.  Maybe they will average 1 to as many as three a year.  Knowing the Chapter 541 and Chapter 542 of the Texas Insurance Code are vital to going after insurance companies for wrongs they have committed.  Resourcing the Texas Department of Insurance is also important.  When the day comes to stand in front of a jury and present your client’s case it is important to know how to talk to a jury.

The opening statement in a first-party insurance case provides an opportunity to educate the jury on the policy language and give the jurors an idea of how badly the plaintiff’s property was damaged and how badly the insurance company handled the claim.  This provides the last opportunity until the closing statement to speak directly with the jury.  Most judges allow 30 minutes to an hour to do the opening statement based on the complexity of the case.  Of course, some courts allow as little as ten minutes.  Counsel should avoid making a simple case more complex than it is, and use the time as efficiently as possible.

I.  Tell the Story –  The opening statement is the plaintiff’s chance to tell the story from the client’s perspective and talk to the jury about what happened.  As previously stated, jurors are significantly more likely to remember things they see as opposed to what they hear.  Therefore, the use of demonstrative exhibits or photographs is extremely beneficial.  Lawyers should also devote some time to provide a preview of the other evidence and testimony the jurors will hear during your case in chief.  Of note, the majority of jurors will never have been on a jury before and will likely not know anything about an insurance policy or the terms involved.  Therefore, counsel should take time to go over some of the more common terms and issues that will come up over the course of the trial.  Last, but not least, the most effective opening statements are concise, interesting, and informative, and not overly long.

An insurance law attorney can know Texas Insurance Code, Chapter 541 and 542 and any other statute that apply but when it comes to trying an insurance case, they need to know how to pick a jury.

Most lawyers agree that a case is won or lost during the jury selection process.  Unfortunately, the jury panel composition is unpredictable.  Further, some things are simply out of the lawyer’s control, like the amount of time  a Judge allows for jury selection, otherwise known as voir dire.  Efficient and intelligent use of time and resources during this portion of the case will always provide a positive return.  The more eyes and ears paying attention during voir dire the better.  Jury consultants can be expensive and should be considered on a case by case basis.

I.  Jury Lists – Some courts will allow the lawyers to preview a list of jurors well in advance of voir dire.  The normal practice however, is to provide the lawyers with a list an hour or two before starting.  It is not possible to know everything about a potential juror based on a half-page or full-page questionnaire, so attorneys should be looking at key indicators that may hurt or help the case.  Perhaps someone on the jury panel works in the insurance industry or has a special relationship with the defendant or their attorney.  The purpose of voir dire should be to remove jurors from the panel that will be harmful to the case.  To the extent the lawyer has hired a jury consultant, he or she should already have identified certain factors to flag when considering who will serve on the jury and who to strike.  When requesting the number of individuals needed for a jury panel, consider the venue, facts of the case, and whether the case is pending in county or district court.  Busted jury panels are less likely in first-party cases, so a pool of 50 jurors is typically more than enough.

Exhibits for a trial in a first-party insurance case need to be well thought out and planned.

Almost all courts require the attorneys to attend a pre-trial conference for the purpose of admitting or making rulings on proposed exhibits.  Most exhibits are agreed or ruled upon by the Judge at these pre-trial hearings.  Having these exhibits admitted before trial helps the respective lawyers prepare their questions and arguments with these exhibits in mind.

Here are a few thoughts to keep in mind as it relates to trial exhibits.

Insurance lawyers know they have to look at every case as if it will go to trial.

An attorney has to always keep the client informed as a reasonable timeline of events such as the initial paperwork or discovery.  Times when to expect to take depositions and attend a mediation also should be discussed.  It seems like insurance companies have become more likely to spend significant amounts of money to defend first-party insurance cases, resulting in extended litigation.  Further, it is nearly impossible to get to trial on the first trial setting.  Never lead a client to believe the insurance company is likely to settle quickly.  Clients get impatient as time goes by.  Keeping them informed helps relieve the anxiety.

When the insurance company hires an expert, the attorney must know what the opinions of that expert and what they will testify about at trial.  This may make the difference between the expert being your worst nightmare or your best witness.  The cost of the deposition is well worth the money spent.  A lot can be learned about the expert from other attorneys who have confronted and this helps to formulate questions to be asked of the expert.  A good expert deposition can help a case get settled.

Insurance lawyers need a good process for taking on a case.  This includes a good intake sheet and a thorough discussion about the case.

I.  One issue to discuss is the number or prior claims that the client has had in the past.  What repairs were competed?  An insurance company adjuster will use prior claims or lack of repairs to their advantage if possible.  Adjusters have access to this information and will use it fruitfully for themselves.  Having copies of repair receipts and photos are very helpful for the claimant.  Sometimes an expert is needed.

II.  Inspection tends to be the part of a case that has the most varied, and often polarized account of what exactly happened to cause the claim.  The attorney needs to know if the client was present when the property was inspected.  Too many times, the adjuster acted on his own without the claimant being present.  Knowing what the adjuster did can often times help the claim.  It may increase the value of the claim or lessen it.  The insured needs to be sure and point out all the damage the insured is aware of and know whether or not the adjuster looked for other damage

Attorneys handling insurance claim denials and their clients, need to understand some basics about what needs to be done when a claim is denied.

Before reaching the court house steps, in most cases, the parties should consider possible resolutions to avoid trial.  The client may not always have the best facts, or the upper hand in negotiations, but counsel should advise the client of the potential risks and rewards of proceeding toward trial.  Ethically, lawyers have a duty to convey all offers made by the insurance company, and clients should be advised on any potential counterclaim risk, if applicable.  Texas Rule of Civil Procedure 167 may severely affect the way a judgement is handled in the event the case goes to trial and the plaintiff obtains less than what was offered.  The client must understand the risk involved.  In the end, he or she should be comfortable with any decision that is made after receiving full counseling and advice.

There is one of two things that have happened when the parties find themselves at the courthouse ready to pick a jury and present their case.  It is because 1) the plaintiff has overvalued the case, or 2) the defendant has undervalued it.  Preparation in the initial stages of the case can be just as valuable as what you do in the courtroom during trial.