Setting aside emotions and temper tantrums that frequently drive an angry plaintiff to file a lawsuit, our experience indicates that a material lawsuit must be practically built upon substantial provable liability and culpability by the defendant, the law, and a deep pocket insured defendant.
The ability, power, or legal right to take civil legal action against a person or organization most often is to claim compensation arising from harm, injury, or a wrongful act that the defendant caused the plaintiff either through action or inaction. This is called a lawsuit. Conducting a lawsuit is called litigation, with attorneys representing their respective plaintiff(s) and defendants(s). Embedded in the word “litigation” is a civil procedure, discovery, and other pre-trial activity that “runs the legal meter” at $275 to $800 per hour in typical legal fees. The insurance claims costs fall within two broad categories: ALAE (Allocated Loss Adjustment Expenses) and Indemnity.
According to MoneyCrashers.com, the Association of Trial Lawyers of America reports that over $233 billion annually are spent in legal system litigation. Civil procedure governs the conduct and operation of a lawsuit. Often it is like a tactical chess match in which venues are considered, interrogatories are devised, and the use of state statutory and case law to drive the arguments on both sides of the case. Pleading starts with the complaint filed with the court to seek relief. However, the defendant could file a motion to dismiss, and if unsuccessful, later remove the case to another venue. Additional action includes the pretrial discovery of evidence, depositions, subpoenas, and then a trial with the option for appeal(s), or perhaps arbitration.
Literature searches and first-hand claims adjudication experience indicates that only 2% of all lawsuits go through the trial process. In the NASW Risk Retention Group’s experience, only one lawsuit was decided at trial, and the NASW RRG won that lawsuit but incurred over $270,000 in legal defense fees for an insured’s $230 annual premium Professional Liability Insurance policy. Over two-thirds of the lawsuits filed against NASW Risk Retention Group’s policyholders were dismissed. However, legal fees for the NASW RRG insureds were paid by the NASW Risk Retention Group. MoneyCrashers.com reports that overall in the nation, tort lawsuits settle out of court over 90% of the time.
At the root of the lawsuit, a potential plaintiff will have the foresight to evaluate estimated outcomes with legal counsel before commencing legal action. Our claims adjudication and legal defense experience indicate that two key forward-thinking elements are critical:
- A wrong that is legitimate, provable, and at a minimum, can be settled out with a payment from the defendant. (However, if the insurance carrier has a reputation of not settling, then the plaintiff may have second thoughts.); and
- the ability of the defendant to pay. Poor defendants are “judgment proof” versus insured defendants with strong insurance policy limits are ripe targets because the risk is shifted to these insurance carriers.