Jury Verdict UM/UIM Case Talk with Co-Counsel

Justin Hill asked Josh Fogelman to team up and help with the trial of a UM/UIM car crash cases in Williamson County, Texas. Our client was wrongfully denied her policy benefits that she had paid for over many years. The jury in Williamson County sided with our client and made sure she was awarded every single dollar of his UM/UIM benefits under her Allstate policy. This verdict was one of the top 100 verdicts in the State of Texas for 2019.


Justin: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real and these are the cases we handle on a day to day basis.


Justin: On today’s episode of Hill Law Firm Cases, I’ve got a good friend of mine and previous co-counsel and classmate and friend and all of those wonderful things, Josh Fogelman, who’s a really established and accomplished personal injury lawyer in Austin in the firm of Fogelman & Von FlaternFVF Law, and he’s sitting here with a really cute hat with a bird FVF on it. Josh and I had the pleasure and benefit and honor of trying a case, I guess it would be a little past a year ago now.

Josh: That’s right. Last spring.

Justin: In Williamson County, so Georgetown. In our industry, there’s always good places to file a lawsuit and try a lawsuit. Then historically, there’s bad places to file and try a lawsuit. Georgetown’s always been considered maybe one of the worst places in the state of Texas because the understanding is juries don’t think cases are worth much money is generally the idea, right?

Josh: Yes, it’s just Williamson County north of Austin is a really conservative, historically Republican county. You’ve got at least the reputation of having very conservative jurors there. Personal Injury Law conservative jurors tend to have a little bit of a more conservative viewpoint of valuation on personal injury cases.

Justin: While it shouldn’t be political, this idea of tort reform and runaway juries has permeated parties. The Republican Party has been the party carrying the mantle of we need to do stuff to rein in jury verdicts. Right or wrong, that sort of has permeated politics. It’s become part of the discussion and that’s bled over into some venues. What we realized in Williamson County is maybe that isn’t true or maybe the demographics are changing. We ended up with a diverse jury in that case. Our foreperson was a 19-year-old woman with a nose ring if I recall.

Josh: Yes. What was interesting about our Williamson County jury is it reminded me a lot of our Travis County juries. I think that that’s a lot to do with the growth of Austin and a lot of the Austin mentality being pushed outside of the city and county limits up into neighboring jurisdictions, neighboring counties like Williamson County.

Justin: What we didn’t even see in the jury selection is we didn’t really see a whole lot of far-right or anti-lawyer or anti-tort thinking either. We had a pretty fair jury. If I recall in our panel, we had a whole lot of people who had been screwed over by insurance companies before.

Josh: Yes, that’s true. Beyond that, we also had a really fair judge. I was really impressed and surprised with the judges leaning up there. As far as the Republican judiciary is concerned, I thought that we got some pretty good and fair rulings from Judge Lambeth up there in Williamson County.

Justin: She let us try our cases. You get judges sometimes that are very involved in the trial, the case in terms of they want to give their two cents or they want to guide the way the trial is working. She let us try our case. She let the defense do what they wanted for the most part within the rules. She let us do what we wanted and she let us have as much time as we needed, which I was pretty surprised by. From the jury standpoint, you do more work in Williamson County and Travis County than I do. Do you think there’s a change in jurors due to the demographic change? Or do you think more people are just coming to grips with insurance companies that will do whatever they can to deny, delay and defend claims?

Josh: I think there’s a combination of both. I’ve actually seen bad juries in Travis County. I’ve seen worse juries in Travis County than I’ve seen in Williamson County on some occasions. There always is going to be some variation from jury to jury. Definitely, when we start asking the jury questions and talking to them about what their experience with insurance companies has been, that is going to be a topic that’s going to shape the way that the jury responds when you’re asking them to allow money.

Justin: Normally in a case, we’re not allowed to talk to a jury about insurance. When you’re in a case like this, it was an uninsured, underinsured motorist claim. We’ve talked about that on my podcast here before, where people have paid their premiums, they have taken out a policy to protect themselves. When they need that policy, they ask for it. All too often, almost 100% of the time anymore it seems like, the UM/UIM carrier says either, “No, we’re not giving it to you,” or, “We’re going to make you a very low-ball offer.” In our case, we had both. We had a low-ball offer that then became a no offer. We could get into the imaginations of the weird legal arguments there. In our case, we were allowed to tell the jury, hey, this is plaintiff X versus Allstate Insurance Company. That prompted a whole lot of discussion from our panel about people’s experiences with insurance companies. Do you remember that?

Josh: Yes, I remember vaguely some discussion about people and their experiences, but I think that one of the advantages that we have in any of those cases where you are suing an insurance company like we did in the [unintelligible 00:05:53] case is when you’re in a venue where people value the money that they’re going to be asking a defendant to pay, it is a tremendous advantage to have the named defendant, the person who is going to be writing the check be a named insurance company. I think that was one of the things that also contributed to our success in that particular case, as you didn’t have your jury looking at their neighbor at the defense table or their neighbor up on the witness stand.

It was an insurance company that many of those jurors had had negative experiences with. A little bit of a different sense of fairness, even though jurors aren’t supposed to take sympathy on the defendant, no matter who it is, they do. It’s a lot easier to take less sympathy when it’s an insurance company that’s dragged you through the mud before.

Justin: In that case, we got a really good verdict. It was south of $400,000. The judge, I think, told us it was the best verdict in 10 years in an injury case or something like that if I recall correctly. What were some of the lessons you learned from that case? In my perspective in that case, I found it real interesting the way the jury split up the award, partly because our client had not had treatment in a while, so they didn’t give her much in future noneconomics, but they gave her all of her future medical needs, which was a strange breakup in the jury charge. What are some of the things that stood out to you in that case that you learned in that case and that guide you in the future of working on UM cases?

Josh: If you remember, Justin, you and I came up with a pretty good strategy early on that we were not going to ask for a lot of money in the way of intangible damages, so things like pain and physical impairment. Any time that we’re dealing with an underinsured motorist coverage claim, we’re limited in what our best day in court could be, because your best day in court, you’re going to get an insurance policy. It’s not an endless depth of pocket.

We came up with a strategy, in that case of this particular client had a lot of future medical needs that were hard numbers that we decided we had a really good chance at asking that particular jury to allow us because our client was genuine and she was trustworthy and she was honest and she was legitimately hurt. Our strategy in that particular case was reading the jury and hearing what they had to say in [unintelligible 00:08:34] examination when we were talking to them at the beginning of the case, we decided that we were pretty confident with that particular defendant that they would be sympathetic to our client in what her hard actual future out-of-pocket costs would be. Those were enough to get us well beyond the insurance policy that we needed.

I think looking at what you’re actually trying to accomplish in the case, in understanding the jury that you have and understanding the client will help you narrow the focus on what you’re going to ask for and identify what is your justification for asking the jury for what you’re going to ask them.

I thought that was a really interesting perspective in that case because oftentimes we go in there and you have a lot of different opportunities to ask the jury to fill in the blank for all these different types of damages. Your instinct, of course, as a plaintiff’s lawyer and someone who’s representing someone is to get as many of those blanks filled with as much money as you can. That’s sometimes not really in your best interest or your client’s best interest. I learned that from that case.

Justin: I learned early in my career, ego can sink a trial as well. You start asking for more than– Maybe you lose touch with your own case because you’ve lived it and breathed it for so many years and the defense lawyer’s gotten under your skin and you think they’ve treated your client unfairly, and at some point, you lose touch. That was really a good thing about me bringing you in on that case. You’ve brought me in, I’ve brought you in. You’ve got a fresh pair of eyes to look at the case and give me your honest opinion, which helps me take a step back and think, “Okay, I hadn’t thought of that. This helps.” We had a great result in that case, you did a fantastic closing.

Jury afterwards talked to us. One of the things I remember them saying was how fantastically prepared we were. I’ve learned that from day one in my career from my previous bosses about how much preparation matters. Especially in trial, a jury will pick up on who’s prepared, and being prepared makes it look as though you’re not making it up on the fly. If you’re prepared, you’ve got a case, you’ve got a narrative that’s honest, and that comes across. Too often, you get defense lawyers or other lawyers that are putting it together as they go, and too often than not I think that appears as though they’re making it up on the fly.

Josh: Absolutely true. That case was against Allstate, a lot of these insurance companies employ their counsel. This particular counsel wasn’t an employee, but a lot of those insurance companies do and Allstate does in a lot of their cases as well. These defense lawyers are set for two, three, four trials sometimes on any given week and they just don’t have the time to prepare a defense the way that they should.

That’s an advantage that we have because we got one case going to trial that is going to eat up, the month before that trial is going to be dedicated to getting ready for that trial. A lot of that also, of course, has to do that with the fact that, in my opinion, it’s harder to be a plaintiff’s lawyer in a lot of circumstances.

Justin: It is. No, it just is. We have a burden to carry.

Josh: That’s right. We got to put the evidence on and we got to get the jury to listen and understand. Understand the why it is that we’re there using their time, which we value as well. The preparation for sure made a difference in that case.

Justin: Well, I’ll end it on that the defense lawyer, in that case, somehow or another now fancies himself a personal injury plaintiff’s lawyer in San Antonio and runs advertisements, which is just such opportunism in my mind. To me, it just cuts me the wrong way. Either you’ve got a passion for what we do or you don’t, and if you have a passion for what we do, you can’t be running your law firm on Allstate dollars, is my two cents. We’re going to end it on that. That’s this episode. Thank you, Josh, for joining us, and we’ll have Josh back on again.

[00:12:43] [END OF AUDIO]

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