Litigation Funding, Part 2: Plaintiff’s Bars - Construction Insurance Blog | NBIS

By Art Kirkner

Last November, I shared my thoughts about the rise of litigation funding, and what it meant for the crane and specialized transportation industries. As a quick refresher, litigation funding is part of an increasing trend of incident lawsuits against corporations seeking big payouts by playing towards jury sympathies. By investing in plaintiff litigation expenses, financial firms stand to reap big rewards from large settlements. The result is a supercharged prosecution ready to vilify big defendants.

Currently, plaintiffs are financially empowered to push for the biggest possible verdicts. Data compiled by the American Transportation Research Institute (ATRI) shows that the trucking industry has seen an exponential increase in both the amount of lawsuits and the size of their verdicts. Over the past decade, inflation has grown at an average of 1.7% per year, while mean verdict awards have increased an average rate of 51.7% per year. Trucking litigation is on the rise—with no signs of slowing down.

The Supercharged Plaintiff’s Bar

Sophisticated plaintiff’s bars are a major contributor to this increase in litigation. Specialist attorneys who possess trucking industry expertise are well-prepared to build advanced cases. These attorneys use their knowledge to paint the defendant as an apathetic company that employs careless, unqualified drivers.

They’ll use all the tools at their disposal, including Federal Motor Carrier Safety Regulations, state regulations, and the Commercial Driver’s License Manual, to make their case. They can even comb through your own safety manual to build evidence against you.

Plaintiff bars are also stepping beyond their expertise to appeal to jurors’ survival instincts. Reptile theory is a popular prosecution strategy where plaintiffs attempt to appeal to jurors’ morality by painting their clients as innocent victims and defendants as callous, profit-driven villains. Since the public currently perceives corporations unfavorably, reptile theory has effective potential.

Protecting and Covering with Risk Management

The best way for insureds to defend themselves from supercharged plaintiff bars is to be prepared and proactive. Thorough risk management programs can help keep companies from scrambling when incidents happen.

Risk solutions will keep you from scrambling in the event of an incident:

•  Telematics and dash camera systems can provide real-time incident data and evidence so you can quickly assess fault and act accordingly.
• Training your drivers can help strengthen safety culture, establish documented diligence, and better prepare drivers.
• Keeping up-to-date records—from drivers’ logs, to contracts, to training completion, it’s all potential evidence. Take ownership over your documentation so you have full control over your company’s narrative.

Taken at surface level, rising litigation in specialized transportation can be a source of anxiety for companies, insurers, and fleet managers alike. Remember, though, that nuclear verdicts might make good headlines but aren’t inevitable. By working together with their insurance providers, companies can do a lot to help avoid these types of situations.

Learn more about how NBIS covers and protects insureds with our risk control solutions.