In this multiple part series of Settlement Nation, Courtney Barber chats with Jason Neville from the Spence Law Firm and Jakob Norman from Trial Lawyers for Justice – both respected and seasoned plaintiff trial lawyers, who started their careers working for the defense. In this episode, we take you behind the scenes of the defense perspective; discussing the inner workings of the defense counsel, insurance adjusters, their tactics, how they build their cases and how you can leverage this knowledge to maximize your case values and get more money – more often. // Stay tuned for Part 2.
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Courtney Barber:
Welcome to Settlement Nation. I am Courtney Barber, and today I’m bringing you an interview with two guests you won’t want to miss. In this multiple part series, I chat with Jason Neville from the Gerry Spence firm, and Jakob Norman from Trial Lawyers for Justice, both respected and seasoned plaintiff trial attorneys who started their careers working for the defense.
Courtney Barber:
In this multipart series, we take you behind the scenes of the defense perspective, discussing the inner workings of the defense counsel, insurance adjusters, their tactics, how they build their cases, and how you can leverage this knowledge to maximize your case values and get more money, more often. Welcome Jason and Jakob.
Jason Neville:
Hi Courtney. Hi Jakob.
Jakob Norman:
Hello.
Courtney Barber:
To jump right in Jason, I heard and from the background research that I’ve done on you, you actually worked on the defense side for 19 years before you came over to the plaintiff side. Can you give our listeners a little bit of background on how you started and share your story?
Jason Neville:
Sure. I started actually with my father’s firm, Williams, Porter, Day & Neville, and worked there for about 19 years, doing everything from the insurance defense side, from starting out little car wrecks, and soft tissue cases, moving onto medical negligence and products cases in Wyoming where I primarily practiced. A lot of oil field wrecks, explosions, and things like that.
Courtney Barber:
So, working on that side, what was the moment that made you then transition over to the plaintiff side?
Jason Neville:
Well, I hated what I was doing for a long, long time. Some people can do it. I got no enjoyment from it, no fulfillment.
Courtney Barber:
Jakob, you also started out in the defense, which is really interesting. For a lot of listeners, this is not the norm, I think. From what I’ve heard, most people usually pick a side and they stay on either side of the fence. You also started out in the defense. What was that like, and what prompted you to come to the plaintiff side?
Jakob Norman:
In the weird small world that it is, it’s actually Jason’s fault I started on the defense. After law school, I was finishing up law school in 2002, shortly after the September 11th attacks, and I’d been called to active duty. At the time, I was an infantryman in Pennsylvania, then had moved to Wyoming. I was on active duty as a law school graduate checking IDs of people who came in the gate. Jason’s firm actually was looking for someone, and I think he’d found out I had been back in the area, and he reached out to me and let me know they were looking for someone. I interviewed, and next thing you know, I’m a defense attorney.
Jakob Norman:
As far as switching, it was interesting for me. I obviously didn’t make it 19 years like Jason, but I really respected one of Jason and I’s partners, and saw what he was doing to be successful. It really meant working 60 to 70 hours a week. I used to make him binders that he would then take to work while he was supposed to be seeing his kids at college break. It made me keep thinking, “Gosh, if that’s what success is.” That’s not only a lot of work, I didn’t think I could be happy doing that.
Jakob Norman:
There was a old guy in town that, that year, between Jason, myself, and other attorneys at the firm, we must have paid the guy millions in settlement, so it just made me wonder, “Well, if that guy every time I try and get a hold of him he’s at the country club, and this guy that I respect in our firm is always at the pool studying when he’s actually supposed to be at the pool with his kids, is that really what I want my life to be like?” It made me think that the switch was not only in my best interest, I’d find a little bit more happiness representing people than insurance companies.
Jason Neville:
It’s funny. Jakob, as you say that, when I first started talking with the Spence firm and going through about a three month torturous ordeal about am I going to leave the firm that I grew up in, that I’ve always been a part of since a little boy, quite frankly. I was out doing depositions in California, a medical case, and coming back with one of the older, he was a co-defendant defense counsel.
Jason Neville:
We were in the Salt Lake Airport in the Crown Room. It’s a Friday night. It’s about 7:30 or 8:00, and we’re sitting there, and I’m having a drink because my day is over. I’m just waiting to come back to Casper. He’s there pounding out a deposition report at 8:30 at night. I thought, “My God. Is that going to be me in 25 years? Is that something that can happen?” That was a moment, quite frankly, that just solidified it for me. No way. I can’t do this.
Courtney Barber:
Well, it’s glad to see you both came over to the plaintiff side. That’s very in line with what we do also at Independent Life with fighting for injury victims, and getting justice for them. Now we’re going to jump straight into the juicy part of this conversation. This is what everyone here came for. This is the prize fight of the night. Last Trial by Human webinar that they had with Nick Rowley and Dan Schaar, reserves came up, and a lot of attorneys on the webinar found the whole process really fascinating and wanted to know more.
Courtney Barber:
Obviously that wasn’t the whole focus of the webinar, so we didn’t have enough time. Jason and Jakob, I want you to take it from here and take our listeners through the defense perspective. How does all this work? What are the behind the scenes tips and tools that they can learn about that they wouldn’t know because they don’t have your experience, and really share that knowledge with them so they can use it. First off, how do reserves work?
Jason Neville:
Well, it’s a great question. It’s something that you really can’t go out and find a book about, because they keep all of that stuff secret. What I have learned about is what I have learned through about 19 years of getting bits and pieces usually from frustrated insurance adjusters as they reveal some of this stuff. As they reveal it, they always say, “I’m not supposed to tell you this.”
Jason Neville:
What I’ve taken away from it is that reserves really control the flow of the case, and a lot of times, quite frankly, the outcome, if you can’t push back on them. They are initially set, but not by the defense counsel. The defense counsel are not supposed to be involved in it. They’re not supposed to know about it, never know about it. They have a key hand in setting those reserves, and they do it by the initial litigation report.
Jason Neville:
Every insurance company has their own modality and their own outline for a defense counsel to use. One of those is what is the likely outcome of the case? It can be as simple as a quick little paragraph of what you think a settlement value is, what a high verdict, low verdict, median verdict might be, and is this case a runaway? Some carriers, it is just pages, and I’m not kidding, pages of what’s a high-low verdict, what’s a high-median verdict. Then it gets extraordinarily frustrating.
Jason Neville:
The importance of that for the insurance company is then the adjuster takes that information, and then they independently set the reserve. That is what is their target for what that case may ultimately pay out. It’s a line item in the business records of a company, and it’s something that they need to adhere to. When you’re going forward and you want to change that reserve and really make it higher, that’s the big no-no, you have to have big, bad important reasons in order to do it.
Jakob Norman:
Jason, let’s break that down a little bit. The overall purpose of the reserve for the insurance company, if you could sum that up, what would you say the actual purpose of this is? Because on the plaintiff side, we tend to think, “Hey, they’re not listening to us. They must be stuck somewhere. Why are they stuck on these numbers?” Even though we don’t know what they are. What’s the actual business purpose of setting the reserve?
Jason Neville:
Well, it’s projecting out monies from the company. They have a case, and let’s say it’s a car wreck case, and it’s a lumbar herniation. We’ll say, hey, that’s generally like a $350,000 case for the purposes of this. They want to put that in there, so that they know when that case is resolved that they have those funds, in a way, set aside, probably not really set aside. In a way, it’s set aside on their books that that’s the amount that they’re going to pay out.
Jason Neville:
Now, with that though is not only the payment for the indemnity portion, for the injury, but it’s the budget for the case, the budget for what it’s going to take for that defense counsel to work that case up, and ultimately try it if it gets that far. Really, it’s an accounting thing.
Jakob Norman:
Well, you said defense counsel aren’t involved, and later down the road we’re going to talk about demands. When it comes to actually maybe changing the reserves, are they asking you questions? Do you know it’s about them thinking about changing what they set the reserves at, or can you tell us any inside information, or even a story about how that practically happens?
Jason Neville:
Yeah. Well, so they’ll never say, “Hey, I’ve got to change my reserve.” The question that you would always receive is, “Hey, wait a minute. What changed?” You told me in the beginning of this case that it was a $350,000 case, and now you’re telling me it’s a policy limited case. What changed? They can get upset about that, because they’re not worried about, “Hey, we need to make this plaintiff whole. We need to defend our insurer, because we think they didn’t cause the injury,” or something like that. They’re worried about the job.
Jason Neville:
They are getting judged by their superiors when they go for their reviews on did you come in and did you meet your reserves on your cases, or are they wildly out of whack? Are your reserves too low, and so you had to come in and ask your supervisors for more authority and to reset the reserve, or are your reserves too high? Because that’s also a problem. If they set their reserves too high, then the bookkeeping is all out of whack.
Jason Neville:
What the company wants, like any company wants, is able to forecast their profits and forecast expenses. When those reserves are out of whack, it looks like that adjuster is not doing their job. That’s, of course, like anybody, they want to keep their job.
Jakob Norman:
Well, Jason, this is where it gets even more interesting for plaintiff’s counsel that’s never been on the defense side. It seems like sometimes reserves are set before a defense counsel’s even involved. Let’s say the case has been going a year or longer in jurisdictions that have longer statute of limitations, and then after the inability of the insurance company to resolve the claim, they then hire defense counsel. If you’re not part of that process, how is this happening? Is there little formulas behind the scenes? I know everyone does it differently, but how early do reserves get set?
Jason Neville:
Well, technically they should get set right away. I learned that because I’ve done some bad faith, and defending and trying cases for insurance companies bad faith. There’s a little bit of pulling back the curtain of that for me. Every company is different. Some companies when a case comes in, it’s an automatic $25,000 reserve that’s set, irrespective of whether the adjuster does anything with it.
Jason Neville:
You have the initial adjusters that get the case, and they are, irrespective of how big your case is, or how big the injuries are ultimately going to be proven to be, they are the lowest level adjusters. They have no authority, and usually they’re new. If they’re not new, boy, there’s something wrong with them, because they’ve been there way too long at that level.
Jason Neville:
We think there’s some grand scheme, or there’s, as you said, a formula, and there’s not. There’s not. They are simply going on what they think. What they think then, because they’re human, is colored by their motivations and what they want. They want to look good, and they want to look good to their superiors. A lot of times, what I always found is they’re setting these, I think they’re setting the reserves low, because they’re telling me how the case isn’t worth anything when I first get it.
Jason Neville:
It starts with those initial adjusters, and almost always is going to be out of whack. It’s never going to be too high, almost always it’s going to be way too low.
Jakob Norman:
Jason, on the Trial by Human listserv, we often see attorneys from around the country trying to figure out this reserve thing. One of the most common questions is, are they discoverable, and if they are discoverable, when and how could a reserve be discoverable? Can you talk a little bit about that?
Jason Neville:
Yeah. I think that’s going to vary state by state with respect to some of the rules. Some states where you can have a direct action against the insurance company, maybe you can get the claims file, which might have some of that reserve information in there. I can tell you in the states that I practice, where I defended cases, which was primarily Wyoming, the claims file and those types of things were never discoverable.
Jason Neville:
Once you get past the underlying case, and you get into bad faith type of situations, that is when you can get the claims file almost everywhere, and you can then get into the reserve, how the reserves were set, and when they were set. Because that, of course, goes into the motivation for the actions that the company took in denying a claim.
Jakob Norman:
You’ve talked about motivations and a little bit about adjusters, but could you maybe help break down. You’ve worked more with adjusters in your 19 years of defense work than probably anybody that I’ve known that has switched over to represent plaintiffs. Obviously these people are humans. We always want to remember the human story, but I think one part of the human story we’re not thinking about is, hey, these adjusters are people with a job, and family, and stuff like that. Could you talk a little bit about adjusters’ motivations from your perspective?
Jason Neville:
Sure. We touched on it. I think, Jakob, of what you and I do as trial lawyers is we’re helping people, first and foremost. Sometimes we’re out righting wrongs, and we’re bending windmills, so to speak. These guys, these adjusters, they’re punching the clock, and they’re supporting their family, and they’re supporting themselves. It’s a job to them. Quite frankly, it’s a hard job.
Jason Neville:
Nobody likes insurance adjusters. Nobody does. Insurance adjusters don’t like insurance adjusters. That’s true. I don’t say that to be funny necessarily, but when I would hear them talk about having to deal with subrogation from other insurance adjusters, they don’t like each other. They know the motivations are skewed, and what they’re doing, even though they know the game and they’re playing the game.
Jason Neville:
It’s a hard job. They have far too many cases and claims for them to handle effectively. Until you get to the higher level, and bigger cases, your run of the mill, we’ll talk just about car wreck cases types of thing. Things that maybe they’re $300,000, maybe they’re $500,000 and below. These guys are just overloaded, and they don’t have time to fully work up their cases. They don’t have time to read the reports that are all required of the defense counsel to give them. They’re sort of drowning quite frankly.
Jakob Norman:
When you think about that, why isn’t there more motivation then to get to close the file a little quicker, or to get a settlement opportunity finished and complete the case? Because when I did the defense work there, I don’t ever remember being told, “Hey, don’t take that deposition. Be careful about taking too many depositions.” It was, “Let’s go figure out as much as we can.” Of course, for me that was good. If I was traveling around the US taking depositions, that’s how I would get paid.
Jakob Norman:
For them, if they are overworked, if there are too many files, why aren’t they closing them out faster without forcing plaintiff’s attorneys to jump through so many hoops?
Jason Neville:
I think at the end of the day it’s because it makes the company money. It doesn’t make sense on individual cases. You would think that you could put a little extra time into it, and maybe get it resolved sooner rather than later. When I say it makes the company money, on the whole it makes the company money, and so they’re continuing with that process.
Jason Neville:
I can’t tell you how many times I would get a case in, and in order to learn about it I would go through the claims file to see what they did, and their investigation. I would see the negotiations between plaintiff’s counsel and the adjuster. Many times they were super reasonable. I would look at it and see what the adjuster declined, and think you would be so lucky if you got to settle the case for that amount. Then we would go work the case up. Like you said, it was work it up aggressively. Take all the depositions.
Jason Neville:
There’s this farce out there that they all promote is, “Well, we have separate pots of money for indemnity than we do for defense,” which is I don’t think ever the case, but they say that. Then at the end of the day, not only have they paid a defense firm 100 grand or more to go work up the case, they pay two, three, sometimes four times more than what they could have gotten it done pre-suit. It never made sense to me.
Jason Neville:
In the later part of my defense career, I did a lot of work for a regional insurance company who in my view was the best carrier that I ever did work for. They would take the time to try to resolve cases in a smart way. Big carriers, national carriers, never.
Jakob Norman:
Well, Jason on our side, there’s a lot at stake. Denied justice to someone who’s been injured is horrible. Obviously their life’s changed forever because of what happened. To get justice denied is adding insult to injury. What’s at stake for these adjusters in this game that they are involved in?
Jason Neville:
I want to say not much, and I think that’s true. They’re not having to fix how to fund a life care plan for themselves, or to put food on the table when they can’t work. What’s at stake for them is their career, if that’s what they’re choosing to do trying to move up the ranks in the company. They are trying to make sure all the boxes are checked. When they are reviewed by their superiors, that they are a good soldier, and they get promoted, and they get a raise, and they get to keep their job. That’s what’s at stake.
Jason Neville:
I know we’re going to talk about it at some point, but when you get to what for them would be the scary cases that can be excess cases, and can get beyond the policy, that’s the stuff that starts to scare them. That’s the stuff that I always saw that’s when they started to pay attention. Very often, all of a sudden you get a different adjuster talking to me as defense counsel. You get supervisors talking to me as defense counsel, or in-house counsel for the carrier talking to me.
Jason Neville:
All of a sudden, properly in my view, focusing on the case, where if you didn’t have that real threat, it’s just business as usual.
Jakob Norman:
Well, you said something earlier that is kind of concerning about the adjusters not even reading your notes to them. I remember when we worked together, a plaintiff would come in for his or her deposition, and immediately after I would write to the adjuster about how the person looked, how they carried themselves. They claim they can’t sit or stand for more than 10 minutes, but they sat through the deposition just fine.
Jakob Norman:
When I was looking at things through that lens, I would be writing to these adjusters to both tell them the good and bad of the cases, or maybe even there’s more exposure than thought. You having done that for so many years, how are they making good decisions if they’re not even taking the time to read what they pay you to write them?
Jason Neville:
That’s a great question, and I don’t know. Because it would always happen, or not always, but generally where I would get a call from an adjuster, and they’d be asking me these questions about the case. Because they’re doing their own report that they have to draft up. I’m thinking to myself, “I spent a half a page in detail with deposition quotes on this in my report. Why didn’t you just read my report?” They don’t do it often enough, because they’re too busy.
Jason Neville:
I learned over the years from several adjusters, you’d be sitting in a meeting, we as trial lawyers get to sit with our real clients in the mediation, and it’s a hard process. We’d sit through that. As a defense counsel, you have to sit with insurance adjusters that, again, most of them hate their job, but sometimes they will start talking to you and bitching to you about their job, and you can start to learn a little bit about it.
Jason Neville:
What I learned is they don’t have time to read the reports. I would ask them, “Why are you so intent and calling me constantly to get my report in that I was always late on, when you don’t even read it?” They’re checking the box, because their supervisors are going to review their files, and in there, I mean it’s all electronic, and they want to see that there was a timely defense counsel report, irrespective of whether it’s read, irrespective of whether they’re going to follow your advice.
Jakob Norman:
You talked a little bit about this initial adjuster. Another thing that plaintiff’s lawyers want to do, and I’ve had people ask me fairly regularly, “Well, how can I get past this low-level adjuster? How can I get to the adjuster with more authority? What has to happen in order to do that?” Can you talk about that a little bit?
Jason Neville:
Yeah. I think pre-suit, so once you file a suit it gets beyond that low-level adjuster, unless it’s a small fender bender type case. Even then, that small fender bender case, it gets bumped up to an adjuster that is going to handle cases that are fought in litigation. In order to get there prior to filing suit, you’d have to show them something that scares them.
Jason Neville:
You have to give them medical records that show big injuries, that show big medical specials that is going to scare them, so that initial adjuster says, “Hey, this is beyond me. This is beyond my authority,” and they’re going to bump it up the chain. Unless you can do that pre-suit, you’re never going to get beyond those initial adjusters.
Jakob Norman:
We’re going to transition here in a second, but you made me think of something. One of the last pre-suit demands I did, I included about 240 pages of medical records and everything. I see some folks on the plaintiff side who think they shouldn’t or don’t have to share anything until there’s a lawsuit filed, and they get into the formal discovery process. How does it help the more a plaintiff attorney shares early on in the whole process?
Jason Neville:
Well, I think it’s huge. I disagree with that philosophy that you don’t share, that you call up and say, “Hey, my people are hurt. Here’s the accident report, and you got to pay your policy.” In part, because in order for them to pay anything out, they need to build their file, and they need to have something in their file to justify why they paid that out. That’s not only because, as we talk about, they get reviewed by supervisors, but all these files also get audited. They get audited to say, “Hey, wait a minute, were you justified in paying that policy limit? Were you justified in paying $100,000, $500,000, whatever it might be on a specific claim?” They need to build their file.
Jason Neville:
If you don’t give them enough initially to start building their file, one, they’re not going to take you seriously, I don’t think, because they have no reason to. They have no reason to, because they don’t have that in their file. Secondarily, because they don’t have enough in their file, they’re not going to work with you pre-suit to try to resolve the claim.
Jakob Norman:
Well, it also seems like this might tie back into the reserves issues of plaintiff’s counsel are refusing to give much or saying you’re not getting anything till discovery. They can’t do a proper analysis either, so that’s just going to start the reserve being set lower than maybe it should be.
Jason Neville:
For sure. For sure.
Jakob Norman:
Let’s go back into adjusters and handling adjusters. At Trial Lawyers for Justice oftentimes we get asked to come in and help people way down the road. I’m looking at the file, looking at exchanges. What I’ve not been super impressed with is some time there’s this battle back and forth between plaintiff’s counsel, an adjuster pre-suit, where there’s three, five, ten-page letters just really, really thrashing this person as an individual. That’s not something that we subscribe to, but I end up getting involved in cases where that’s what’s been going on.
Jakob Norman:
Can you talk a little bit about how that impacts the case, kind of this attitude, and this attempt to bully and stuff like that?
Jason Neville:
Yeah. Well, it’s never helpful. It’s never, never helpful. First and foremost, they’re people, and they don’t like to be treated poorly. If they are treated poorly, the first thing if someone comes in and calls you an asshole is it gets your back up. You say, “Wait. No, you’re an asshole.” If we’re doing that trying to help our clients, well, we’re not doing them any good, for sure. All we’re doing is prolonging the process.
Jason Neville:
Now, if you have some situation where it’s an excess case to the policy, and it’s scary, well, I’ll still say it’s not very effective to treat the adjuster that way, but maybe you can get away with it, and you can bully them. In every other case that’s not a policy case, that’s not scary for the company, all you’re doing is giving that adjuster a reason to go work the case up all the way.
Jason Neville:
You’re most likely going to see a lot of the same lawyers that you do, probably less so in bigger places than Wyoming, but a lot of times the same adjusters, or the same carriers. I would come across adjusters or carriers that would say, “Yeah. This case isn’t a great case to go try, Jason, but this client’s lawyer has taken us a bunch lately, or he’s just,” again, pardon my language, “but they’re just an asshole, so go try this case. Go punish them a little bit. Because we want to slam them down on this case to prevent them from filing what they would say are frivolous cases in the future.”
Jakob Norman:
That certainly does no justice for their client, and I think that’s important for people to know. Behind the scenes, it sounds like positions are being taken sometimes based off of bad lawyers, bad attitude.
Jason Neville:
For sure. It’s battles and wars. We, I think rightfully so, think of ourselves, well, not think of ourselves, we are, I mean we’re standing up against the bullies. We’re standing up against the giants that want to not only deny justice, but a lot of times do injustice to our clients. The way to do that isn’t always to stand in front of them and throw rocks, but it is to be nice. Work the system. Do things effectively to, at the end of the day, maximize what you can do for your client, and maximize that justice. Irrespective of whether at the end of the day you feel great because you got to pound on the insurance company, or pound on the defense counsel. If you can do it effectively, then that’s what we’re here for.
Jakob Norman:
Is there a time where you being nice isn’t good enough? Is there a time in a case with the adjuster where things do switch, or should people have the attitude I’m always going to maintain the high road, or does sometimes being firm actually get you somewhere?
Jason Neville:
Well, yes. I think there is that time. It reminds me, it’s one of my, it’s a terrible movie, but it’s one of my favorite scenes in Road House where you have Patrick Swayze as the bouncer trying to teach the young bouncers how to do their job. What he says is you need to be nice. They prod him about this and all these different scenarios, and he says, “Be nice until it’s time to not be nice.” We know that, when that comes. When that comes with respect to handling adjusters, and this is generally pre-suit. When you’re getting deadlines for responding to policy limit demands, or responding to demands.
Jason Neville:
Of course, they always want time. I just gave an extra 20 days last week on a case that’s a policy case. I probably shouldn’t have. I did it out of a favor, quite frankly, to the defense counsel. Those are the times that you can then be firm, and then when you’re firm, you stand on it. When you tell these adjusters or defense counsel, “Hey, this is your one shot. Whether I give you an extension or not, you’re not going to get this chance again, and we’re going to go try the case.” Well, then you go try the case.
Jason Neville:
Because if you don’t then follow that up, then they’re going to know every time in the future, “Well, he or she says this, but they’re going to settle the case later on, so we don’t have to pay attention to them.” Taking that firm stance, there is that time for that firm stance. There are other examples, of course, but that’s the big one that comes to mind.
Jakob Norman:
Again, you keep saying really, I think, important stuff for us as plaintiff’s attorneys to be paying attention to. You talked a little bit about change. I was asking about change as far as adjusters. When you have a case, let’s say, a run-of-the-mill car wreck. The person goes from chiropractic care to a couple of injections, and a year later ends up being surgical, how does that look, and what’s happening behind the scenes? How would you look as a defense attorney, did you think they’re shopping for a doctor? Did you think they just complained enough, they finally got it?
Jakob Norman:
Because that’s a big change to us. We think it’s a big change, and, of course, the majority of the time our clients are honest people, and this is real stuff. How are those changes looked at, and what were you doing with adjusters and insurance companies behind the scenes when these kind of changes would happen?
Jason Neville:
Well, boy, what I would do as defense counsel a lot of times is try to explain why it’s important. Part of that is the adjuster sees that stuff all the time. They see that progression from injections, moving on to surgery or at least the threat of surgery. I’ll tell you, there are some places in this country where the medical care, it’s kind of a mill. They run it through, and they run folks through chiropractic care, and then they progress onto neurosurgical care.
Jason Neville:
It’s somewhat of a game with respect to workers’ comp type cases, and personal injury cases. The physicians, and it’s rare but it happens, they have this close relationship with plaintiff’s lawyers. Quite frankly, it’s gross, and it shouldn’t happen. I think it’s something that is known in the insurance industry and on the defense side that casts a big shadow across legitimate claims.
Jason Neville:
Getting back to what you said, when the adjuster sees it, I don’t think it means much to them. Because they have this jaundiced eye to all of that stuff. Very rarely would I ever talk to an adjuster, and that adjuster would say, “Oh man. This guy’s really hurt, it looks like. Let’s go figure out how, and let’s figure out whether our guy did it.” Usually it was that jaundiced eye of, “Oh, they’re probably lying. Plaintiff’s counsel’s probably lying. All they want is money.”
Jason Neville:
What I would do as a defense counsel is really having to disabuse them of that. Like you said, it’s very rare. In my career, it was very rare that I ever found somebody that wasn’t truthful on the plaintiff’s side. Usually they’re all hurt. It’s whether or not my guy did it, or caused it, or legally there’s a way to get around it. I would generally spend that time disabusing the adjuster that it’s not fake, that it is real, and that we need to pay attention to it.
Jakob Norman:
This is another thing on the plaintiff’s side that I hear people across the country talking about. Is it enough to get the surgical recommendation, or should we always be having the clients follow all the way through with it before proceeding with the lawsuit? Of course, statute of limitations matter and stuff like that. If there is a choice, from the defense perspective, does the recommendation enough trigger the money, or was there more a want to see the person go all the way through with it?
Jason Neville:
My thought is it’s always better to go through with it. Because you have the recommendation from the orthopedist saying you need a fusion, or what have you. You have that. Well, on the defense side they’re going to get an IME (Independent Medical Expert) physician that, surprise, is going to say, “Oh no. They don’t need surgery. We can do this through conservative treatment, and they’re going to be just fine.” The recommendation itself, I never found did much.
Jakob Norman:
In this relationship that you had with adjusters, which, again, is something that plaintiff’s counsel never gets access to, would you see some of their stresses come alive, or did you feel some of the pain with them as these cases progress?
Jason Neville:
Like stresses of just their job, et cetera?
Jakob Norman:
Exactly.
Jason Neville:
Yeah. For sure. It stands out to me, I had this case. It was, I think, the insurance policy was maybe only $100,000. The case itself was like an $800,000 – over a million dollar case as far as the injury goes. The adjuster really wanted to get this result, and they wanted to close the case. But the plaintiff’s lawyer legitimately had to jump through these hoops, and had to get things set up on his side in order to be able to accept the offer.
Jason Neville:
The adjuster was so frustrated, because I mean it took over a year to get this done, he would call me up and he would talk about his supervisors on his butt because there was nothing in the file, and the case wasn’t progressing. He would ask me just to get onto Westlaw and send him some cases. Didn’t have to have anything to do with the case, but he just wanted to put something in his file to show his supervisors that it was being worked.
Jason Neville:
I would feel that periodically from them. For the most part, I’m reading the tea leaves of where their frustrations come from. That’s an example of being able to see it firsthand, the pressures that they’re under. Again, it’s better for the company just to hold off. You’ve got issues with the reserve, I suppose, but you’re making money on your investments. Hold off until you have to pay it. This guy was just intent on making his record look good, so that it looks like he’s working his cases, and he’s timely closing his cases.
Jakob Norman:
When you’re talking about closing though, there’s definitely confusion, and I’ve been confused over the years, too. Is the goal for these companies to learn what they can, and settle the case, or is the goal to push to trial? It’s very inconsistent across the board. Do you have any observations from your 19 years in that foxhole?
Jason Neville:
Yeah. It is different, and it’s cyclical. There would be times that you would get cases, and it would just be a rush to get them settled. Rarely did I ever say this to an adjuster, “Hey, you’re paying too much on this case.” Usually I’m trying to do dental surgery on them to give more money. There would be times like that, and not across the board that I would see, but just with different companies, where they would want to settle cases.
Jason Neville:
Then a year or two later, they were going to try all their cases. It goes to whatever sort of “Moneyball” theory that they ascribe to for that time period with respect to how they’re overall going to save money. In the latter part of my defense career, going to some national meetings with lawyers who were doing national work for medical negligence companies, they would do studies. They would look at how much money they could save overall if they would try all their cases, versus if they would work them up initially and try to settle them ahead of trial.
Jason Neville:
At that point, and that was probably 2016 or so, at that point the studies showed we can ultimately save more money and make more money for the company if we try all of our medical malpractice cases. It’s cyclical, and it’s whatever new theory they ascribe to.
Jakob Norman:
My gosh. Absolutely nothing we can count on, and I guess that jibes with exactly what my experience is, as well. Because the fact of the matter is every single time a case is worked up, and worked up well, more money is on the table. Talk about a thankless job being an adjuster. I’ve never met one at a career day, but I’m not sure that I’d recommend that profession for anybody. Do you have any comments on that, having worked with them?
Jason Neville:
When I first started as a young lawyer, and in my firm you’re doing the terrible work, the $25,000 limit cases. Usually a lot of those $25,000 limit cases are the catastrophic cases that you’re not going to go work up. You’re just trying to get them settled. I would get all these adjusters who are hyper aggressive at that level, because they’re trying to move up the chain. I would come to my father, and one of the things that I just cherish about my defense career, not only about the perspective that I got but I got to practice with my dad.
Jason Neville:
When he was in town and I was in town, I got to see him every day. I remember distinctly early on going to him and talking to him about these adjusters, and how “mean” they were, and how they’re not listening to me. His response was, he said, “Jason, there’s never been a little girl or a little boy that tugged on their father’s pant leg and looked up and said, ‘Daddy, when I grow up, I want to be an insurance adjuster.'” I think that’s true.
Jason Neville:
One, because it’s a little bit obscure. It’s not a firefighter, or a Navy SEAL, but it’s a weird, thankless, hard job.
Courtney Barber:
Absolutely. That’s such a great quote, Jason. I love that, and we will put that in the show notes. For everyone listening, I really hope you’re enjoying this episode. Make sure you stay tuned for part two of this interview, where we cover the anatomy of the defense attorney, how they view their cases, their relationship with insurance adjusters, and the challenges of defending personal injury cases.
