Episode 15: A Defense Counsel’s Guide to Successful Outcomes Transcript

Note: The Litigation Management Podcast is designed to be heard, not read. Unlike the transcripts, our audio includes tone, emotion, and emphasis that’s not on the page. Transcripts are generated using a combination of speech recognition software and human transcribers and may contain errors. Please check the corresponding audio before quoting in print. Listen to the full podcast here.

Wesley Todd [00:07]: This is the Litigation Management podcast. And I am your host Wesley Todd, the CEO of CaseGlide. As you know, the Litigation Management podcast, we don’t just talk about the latest case law, or bill review or some tactical thing. We talk about the biggest things that are impacting our industry, whether it be data technology, litigation funding, nuclear verdicts, social inflation, things like that. And so we try to bring on people that have that type of perspective. I get the opportunity to talk to these folks all the time, and we love sharing these people’s insights with the 1000s of people that subscribe to this podcast. Today, I have a great guest, a close friend of mine, George Hooker with Cole, Scott and Kissane, the largest law firm in Florida, one of the largest law firms in the country. And they specialize in defending insurance companies, they try more cases in their jurisdictions than any other firm on the defense side. That’s where George and I started our careers quite a bit ago now. And in Georgia, senior attorney leading how many attorneys George?

George Hooker [01:14]: Around 40 to 50 right now.

Wesley Todd [01:17]: Yeah, 40 to 50 attorneys reporting to you probably handling few cases as well.

George Hooker [01:23]: One or two.

Wesley Todd [01:24]: Yeah, one or two. Your success as a trial lawyer. The biggest problem in this industry, not just in Florida, but nationally is the talent issues, it’s very hard for the defense bar to keep up with the plaintiffs’ bar because the plaintiffs’ bar gets paid more money. It’s also very hard for even if you have two equal attorneys going head to head for somebody to defend in this world where there is much more appetite for punishing the corporation or business because that’s much more you know, this social inflation is much more prevalent in our culture, especially these last couple of years, everybody believes that, or at least a lot more people believe in proving points and get sticking it to the man versus conservatism and trying to keep costs down for everybody and free market, things like that. I want you to educate these 1000s of adjusters and attorneys that listen to this podcast, about what you’ve learned all over the years, and how you got to the point where you were able to hammer out six trial wins in the belly of the beast, the most difficult place to win in the country, Florida. How were you able to do this, George?

George Hooker [02:48]: Well, thank you, I appreciate it. And I do think that we have seen just globally as an industry, these negative trends with jury verdicts and both finding for plaintiffs and the amount awarded and things like that in the last several years, whether because of the pandemic or other social changes or atmosphere. So it has been very difficult for the defense bar to be successful and taking cases to trial. And ultimately, I think that the way to be successful in these cases is to pick ones where you can tell a good story to the jury, and it’s not enough to have favorable policy language or some sort of gotcha tactic that the jury will be like, I don’t care if you’re technically right, I feel bad for these people. You have to find a way to explain to the jury why they shouldn’t feel bad for these people and why the insurance company didn’t do anything wrong. One of the examples that I have is, it’s a case where the carrier invoked its option to repair and then requested a sworn proof of loss, because the insurance company has a unique endorsement that allows appraisal to then go do repairs, if there’s a disagreement, and if there isn’t a disagreement, they just sign a work authorization and let the work happen. The plaintiff in that case wanted to just get around this and very clearly, it was just trying to find a way to manufacture a lawsuit and get paid money. So they submitted a proof of loss that just said pre loss condition. And their story was were just a homeowner who doesn’t know any better and we’re not a general contractor that’s the best information we had. But we were able to paint a story to the jury that know, they had a public adjuster, it’s very clear, they could have submitted an estimate if they wanted to. And through our cross examination of the insured, were able to demonstrate that they really didn’t know what was going on. And this was a scheme by the public adjuster to basically try to circumvent the repairs and get a cash settlement. So through our cross examination of their witnesses and our own case in chief, we were able to show look, the carrier wanted to do everything right they and they accepted coverage, they invoked the option to repair said, let us fix the house. And then where if you disagree with our estimate, let us know what you want. If you agree, let us know and we’ll start the work. And we were able to demonstrate that this, tell the story that the carrier didn’t do anything wrong. And the homeowner was the one playing games. So it’s being able to come up with that narrative and present it to the jury that is absolutely essential and prevailing in these types of cases.

Wesley Todd [06:05]: So, to me, what I think this makes me start to think about is the bigger picture and you have this these tactics, that you’ve learned from trying a bunch of cases, and so you’re gonna get better and better and better. And you talked about that it’s all about the story. Now, in our industry, we’re used to losing in general, insurers are afraid this can be of losing. And we spend so much time talking about costs, and we don’t highlight the winners or give the winners a chance to win. What is something like this do for you as a professional? Like, how do you feel winning just for your customers? And then like, what’s it do for your team and for your clients? I just think for like a culture shift like sports for those sports fans, how much harder do you want to work? How much does this motivate your team wins when you have stuff like this versus what we’ve become accustomed to, which is just a bunch of paperwork getting yelled at? And everybody worrying about our bills, when we’re trying to get great settlements and great outcomes? And when stuff like what’s this do for you? How excited does this get you, it’s just refreshing for you? Talk about that.

George Hooker [07:23]: Oh, absolutely. And thankfully, we’ve had a lot of success in the last four or five years and taking cases to trial. I think, over 80% of our cases, we’ve won and several that we didn’t, and I think we’re very difficult cases that the plaintiffs just pushed, because they knew it like a Hurricane Irma case, and Key West was very difficult to win. And a couple of the other ones that we didn’t prevail, got overturned, on motions for new trial due to bad behavior by the plants, attorneys. And ultimately, that’s what that’s why I do this job. That’s why my team does this job as we want to win these cases for our clients, we see them we know that they’re not meritorious. And we know that the client doesn’t owe anything and shouldn’t have to pay anything. So obviously, a lot of times just because of the exposure, because of what we talked about on the previous segment related to attorney’s fees and bad faith, we have to pay these cases that we shouldn’t, and it’s obviously that is, if not demoralizing, it’s not something that we enjoy doing. So being able to take these cases, obviously, to trial is very good for us. But it’s even better for our clients, because they are the ones who get to reap the benefit of this even more directly. And each success allows them to take more chances on taking these cases to trial. One of the ones that I succeeded on was a shrink wrap assignment of benefits where they put a shrink wrap on the house for $20,000, after the carrier accepted coverage and said, “We’ll give you a new roof”. And our summary judgment didn’t prevail, because it’s very difficult for them ever to succeed. And most of the time, that would be it and we would settle but the client took a harder line and we prevailed. And then because of that, two months later on my most recent trial, it was almost an identical issue. And the same client, it wasn’t even a hesitation was let’s go, let’s do it. And again, we prevailed and I think we should have on both cases, it boggles my mind that insurance company would have to pay an additional $20,000, after they already offered to replace the roof, because the homeowner didn’t do what they were supposed to. And that just it breeds more, I don’t want to say aggressiveness but just more confidence to do the right thing on these cases and push them towards trials and not having to pay these companies or insurance on frivolous cases. And hopefully that not only helps on these cases, but gets the message out that these companies, these carriers aren’t going to just fold if a summary judgment is denied and pay some amounts out and hopefully has a more global impact on their litigation volume and settlement amounts going forward.

Wesley Todd [10:43]: I was curious about that. Do you see differences in plaintiff attorney behavior across so like obviously we can see this person will settle for five bucks this person settles in for three like we could see it at a very high level. But it’s a little bit difficult to spot or cut across like this particular plaintiff attorney lost his trial. And now they’ve changed their behavior with this insurer but maybe not other insurers. Have you seen mean that like wins like these or even hard lines like these do change the plaintiff attorney behavior and act as a deterrent or as like a mitigator where it’s like, Okay, I’ll take a little bit less than I may have said before, or is it a little bit too early to tell?

George Hooker [11:30]: No, we’ve definitely seen it on that proof of loss case, I talked about the plants law firm there, filed motions to withdrawal and 30 to 40 cases that were very factually similar to the trial that we had. And on some other ones that are also somewhat similar. They’re now begging for nominal settlements up to $5,000. And at this point, the client isn’t even accepting that, but obviously, on the ones that they’ve moved to withdraw, we’re going to get dismissals on as well. So that one trial when turned into 30 to 40 additional wins for that company.

Wesley Todd [12:11]: And 10s of 1000s of dollars a pop in cost and exposure. So you’re talking about these six wins, you not only zero them in those cases, but now you have millions of dollars, probably, overall that you’re going to save this carrier from doing what you do best. And everybody loves it, the carriers is going to love it. You love it. Do you have any other perspective after this run that you’d want to share with the audience, maybe to encourage them to try to the benefits of trying these cases, or the benefits of your experience going from somebody from a junior attorney? And then becoming this heavy litigator just kind of crushing the plaintiffs’ bar?

George Hooker [13:00]: Yeah. I mean, ultimately, this is the only way that the industry can have success against the plaintiffs’ bar is to push back. They are bullies. And when you let bullies have their way, they’re not going to just be like, Okay, that’s enough, they’re going to keep pushing harder and harder and we see this volume skyrocket, as you alluded to. But when you actually push back and make them work for it, the vast majority of them are not equipped to handle it. And actually try these cases, and the ones who are equipped, they don’t want to have to do that 20, 30, 40 times a year, they want to just get their money and go on vacation and enjoy their time. So you’re going to see them go to the easy targets. And if some carriers are known for fighting extremely hard, there’s law firms that won’t take cases against them. And if there’s ones that just settle and pay everything, you’re going to see a higher increase in the number of lawsuits that get filed against you, and then making it harder to get a reasonable settlement. So this is what I’ve been preaching for years. And it’s encouraging now that we are being able to take a higher volume of cases to trial, I’ve probably done 25 trials in the last several years. And obviously, that’s even with COVID, it would have been higher otherwise. And as the courts now push things even more aggressively, we are seeing trials happen all the time. And I think that that is something that will be very beneficial to the industry as a whole, if we selectively and smartly choose the right cases to take to trial, and move forward with them. And that’s what I’m trying to build here. I have one of my partners now who was an associate under me trying a case right now this week. And we have the capacity now, at our firm alone to try probably 10 of these cases simultaneously, if not more. And I just want to continue to do that. Because when you put that pressure on the plaintiffs’ bar, they’ll crack and that’s the way to have success against them.

Wesley Todd [15:20]: Well, you really got me thinking because I just think you just changed the way you look at the game. We didn’t get trained in law school on how to on business process and how to automate things and workflow and things like that and which is a really important piece of being efficient. We were trained on crushing the opponent. We were trained to argue, trained to win super competitive people, everybody in law school. And it seems like what you’ve done is you’ve opened my eyes to or refresh my view, this is the game to play. This is the game that you can actually win the whole thing with, it’s very difficult to manage all of those cases day to day. The trial is just one piece, but you 300 to 450 days before that, where things sucked, I’m sure at times, it’s like way too much overload way too much work. I wonder if we just shifted our focus to winning, if we would get better if instead of being efficient, we would be effective and if we would get better results. It’s great that even though we I think we have been very myopically focused in this industry on that process of getting to the whole point, which is to trial. If we’ve been so focused on that, that we still have people that can win these cases under defense that despite all that, despite the industry’s best efforts, and a lot of these vendors like the e-billing, third party bill review, reviewers, their best efforts to squeeze out all the talent and turn it over to the plaintiffs’ bar. So I appreciate that. I think you just gave a really good perspective on maybe the game that we should be playing, as opposed to the game that we currently are playing. I want to thank you for your insights on the reform, the special session reform, a very timely update on that and your perspective. And I think people are going to find it very helpful, because it just gets right to the root of the issue that legislators probably don’t understand. And I want to thank you for winning for our industry and crushing it and congratulate you on all your successes and giving us hope as an industry that we can win and that we can have fun, and we could do this thing the right way. And we can play the right game and be successful. Thank you for sharing the story. There’s a bunch of young adjusters and attorneys that listen to this, and I think this will be really helpful so they could see how it can be done.

George Hooker [17:38]: I’m happy to do it. And if any of your listeners want to discuss anything further or have any questions, I’m obviously happy to do that at any time, either via email, phone meeting anything at all.

Wesley Todd [17:54]: What’s your email address?

George Hooker [17:57]: george.hooker at csklegal.com

Wesley Todd [18:02]: All right. Well, I’m sure we’ll talk again soon, George, but thank you for this. And another great episode of the CaseGlide Litigation Management podcast.

George Hooker [18:12]: Thank you for having me, Wes.

Listen to the full podcast here.

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