June 06, 2006
In an insurance recovery case involving environmental liabilities, a jury in Summit County, Ohio recently returned a $42 million verdict, plus attorneys’ fees, in favor of Goodrich Corporation and against certain insurance companies. After a two month trial, the jurors unanimously found that various London Market insurers and Commercial Union Insurance Company were liable for breach of the insurance contracts, and seven of the eight jurors found that Commercial Union had acted in bad faith in handling Goodrich’s claim. This article outlines ten steps for successfully trying a lengthy, complex insurance coverage case to a jury.
The case involved excess general liability insurance coverage for a single site in Calvert City, Kentucky. At that site, which Goodrich opened in the mid-1950s, a number of chemicals were manufactured, including ethylene dichloride, vinyl chloride monomer and a proprietary thickening agent called Carbopol®. The soil and groundwater at the site became contaminated, and Goodrich was the sole party responsible for the substantial cleanup expenses.
Goodrich gave notice to its insurance companies dating back to the 1950s in 1989. Although its primary carrier paid the claim, none of its excess carriers accepted coverage. An insurance recovery action was filed in 1997 by Goodrich, and the case proceeded in the Ohio Court of Common Pleas, Summit County against several dozen insurance company defendants. More than 2 million documents ultimately were produced by Goodrich about the 50-year history of the site, and scores of depositions were taken. Summary judgment on late notice grounds initially was granted to the insurance companies, but later was reversed by the appellate court. Two mediations, one at the beginning of the case and one within six months of trial, resulted in a few settlements, but the case proceeded to trial in December 2005 against the remaining defendants.
The main defenses of the insurance companies were as follows:
(1) there was no “occurrence” because Goodrich “expected” or “intended” the environmental damage; (2) coverage was forfeited because notice was late; (3) various “pollution exclusions” precluded coverage; and (4) various damages arguments, including that Goodrich’s damages did not reach the defendants’ policies.
Several insurance companies settled during trial. After nearly two months of trial, the jury answered more than 60 special interrogatories awarding Goodrich $42 million in damages against certain London Market insurers and Commercial Union, plus attorneys’ fees incurred by Goodrich in the coverage action. The jury made findings that the carriers had breached the contracts of excess insurance, and that Commercial Union had handled the claim in bad faith. The Court will address the insurers’ liability for costs, prejudgment in trust and other costs in post-trial proceedings.
Jury Trial Pointers
The following, in no particular order, are ten important points to bear in mind when trying a lengthy, document-intensive and factually complex insurance recovery case to a jury.
1. Do A Mock Jury Exercise
Mock jury exercises are extremely helpful in many respects. They force lawyers to assemble evidence and focus on key issues before trial, assist in identifying your “ideal” juror before voir dire, and provide the opportunity to “test drive” the major themes of the case. There are many ways to structure the exercise (with or without witnesses, over one day or several, providing written material to mock jurors or relying solely on oral presentations). However it is structured, the exercise should be conducted sufficiently in advance of trial to allow the trial team to make adjustments, and it should be tailored specifically to your case. Adequate preparation is key; as with any research project, the more you put into it, the more valuable is the information you likely will get out of it.
2. Work Environment
Sometimes there is no choice involved, but if it is possible to work out of a law office, you likely will be much more efficient after hours (and, therefore, during trial) than if you are forced to work out of a hotel conference room. As anyone who has tried a case knows, a good support system is key, and you are more likely to have that on a consistent basis at a law office than you are at a hotel business center during the course of a lengthy trial.
3. “Less is More”
Lawyers can’t seem to resist the urge to “pile on” documents and testimony at trial. Unlike the old saying about heads, though, two documents at trial are not necessarily better than one, and the same is true of witnesses. Presenting repetitive evidence creates a risk that you will confuse, bore or even anger the jury, especially when the trial is expected to be lengthy in any event. Keep the presentation of your evidence crisp and trust the jury to some extent to understand the importance of each piece of evidence. Remember that you will have closing argument to connect the dots and highlight key pieces of evidence.
4. Demonstratives Work
Think of demonstrative exhibits as a concentrated form of evidence, and try to use them liberally throughout a trial. They do not need to be fancy or expensive, as long as they are clear (a color-coded coverage chart can work wonders to explain a complex insurance coverage program). Some judges allow lawyers to give jurors personal copies of demonstrative exhibits during trial so that they can follow along more efficiently. Timelines for key dates in the case (such as a bad faith chronology), charts of key insurance contract provisions, diagrams explaining manufacturing processes or a chain of command and a visual tally of damages all are effective demonstratives to use in a complex contract case.
All lawyers know, but often ignore, the adage that one should not ask a question at trial if you do not know the answer. The reason for the “rule,” of course, is that you may open the door to testimony harmful to your case. Likewise, lawyers should resist the temptation to put an unnecessary witness on the stand, especially if the witness is not performing well in preparation sessions. There are many reasons for putting a witness on the stand who is not essential to your case, such as a desire to put the “best” face of your client forward, or to anticipate a point you expect your opponent to raise during their case in chief. If, during preparation sessions, a witness shows any sign of potentially damaging your case, you should think long and hard about putting that witness on the stand. The risk probably is not worth it.
6. Courtroom Demeanor Counts
Although this should go without saying, during the course of a long trial, it is important to maintain a professional appearance and demeanor at all times. Juries notice it immediately when a lawyer is unnecessarily argumentative, rude, or angry. Of course, there may be times when you want to show exasperation or to push a witness on a given point. However, in general, you should try to consistently address witnesses, opposing counsel and the court with respect and courtesy. Affected righteous indignation or courtroom histrionics, although perhaps momentarily entertaining, are not ways to build credibility with a jury.
Another mistake lawyers often make is to try to cross examine a witness on all possible points, as opposed to selecting the strongest few. Delving into minutia will only dilute your main areas of disagreement with the witness. Try to limit yourself to the critical three (or five, in the event of a major witness) points you think you can make with the witness.
8. Avoid Expert Qualification Battles If Possible
If you are offering an expert in a recognized discipline, such as a hydrogeologist to show damage during the policy periods, do yourself a favor and hire a well-credentialed one with experience testifying at trial. Also, ask for videotapes of prior depositions if they are available so that you can gauge the witness’s demeanor and be sure that he or she has the ability to explain complex subjects in layman’s terms. You want the jury to be focused on what your expert says and how he or she says it, not on an unnecessary sideshow regarding whether the expert even is qualified to say it.
9. Work Early On Jury Instructions and Interrogatories
If you are offering an expert in a recognized discipline, such as a hydrogeologist to show damage during the policy periods, do yourself a favor and hire a well-credentialed one with experience testifying at trial. Also, ask for videotapes of prior depositions if they are available so that you can gauge the witness’s demeanor and be sure that he or she has the ability to explain complex subjects in layman’s terms. You want the jury to be focused on what your expert says and how he or she says it, not on an unnecessary sideshow regarding whether the expert even is qualified to say it.If the court will permit jury interrogatories, you should work on them, as well as proposed jury instructions, well before trial. This exercise again helps to focus you on the key issues in the case, and forces you to state, in plain English, the legal rulings and the factual findings you want. More importantly, the instructions and interrogatories will be the jury’s roadmap to finding in your client’s favor.
10. Connect the Dots
Closing argument is an excellent (and your final) opportunity to tie all of your evidence together in a meaningful way for the jury. Use it to reinforce your trial themes, and to tell the jury what the key evidence is and why. If jury interrogatories are to be used, spend some time walking the jury through them. Be explicit about the answers you want and what evidence supports those answers. Closing argument also is the time to point out to the jury the weaknesses in the other side’s case and to mention the evidence your opponents did offer if there is a gap in their case. Don’t simply re-hash your case. Weave it into an effective presentation addressing all of the key evidence, any jury interrogatories, and the jury instructions.
Many factors combine to produce a successful result in a jury trial. Some are beyond your control, but it is important to identify and capitalize on those that will give you an edge. The above ten pointers should increase your odds of obtaining the result your client wants in an insurance recovery case.