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Scary Claims and Litigation Trends

What frightens CLM members and fellows the most?

October 30, 2020 Photo

Question: What is the scariest claims or litigation trend that you have your eye on?

“I grow increasingly concerned with the use of modern technology as it pertains to claims negotiations; specifically, using email communication to negotiate the settlement of a claim. I’ll take a 35-minute productive negotiation with plaintiff’s counsel over a one-to-two sentence email from their paralegal any day of the week.”

Chris Aikens,
Lead Resolution Manager, Gallagher Bassett. CLM Fellow since 2009.

“The filing of lawsuits after the insurer makes its first offer. Plaintiffs are not engaging in pre-litigation, back-and-forth negotiation anymore; they are going straight to litigation. I did not see this before COVID-19, and I suspect this relates to a decrease in plaintiffs’ counsel’s caseload due to a reduction in driving caused by COVID-19.”

Laura Martinez,
Partner, Messner Reeves LLP. CLM Member since 2013.

“The rise of third-party litigation finance. It is a multibillion-dollar industry in the U.S., but is not yet regulated at the federal level. State statutes and local federal rules regarding funding agreements all vary as to the level of regulation and the scope of disclosure required in litigation.

Jessica P. Butkera,
Partner, DeHay & Elliston LLP. CLM Member since 2017.

“The scariest litigation trend that I encounter is a propensity for plaintiffs’ counsel to meld every case into a cognitive brain injury case. With this characterization of the claim, additional experts must be retained, neuropsychiatric evaluations must be performed, and the cost to defend the litigation—whether the claim is legitimate or not—significantly increases.”

Andrew S. Kessler,
Partner, Wood, Smith, Henning & Berman LLP. CLM Member since 2015.



Percent of insurers who say technology has become an inextricable part of the human experience.

Source: Accenture


Percent of respondents in a survey of 819 legal professionals in April 2020 who said “maintaining financial stability” was the most critical challenge facing their business right now.

Source: MyCase


Percent growth in litigation funding over a four-year period from 2013 to 2017.

Source: Verisk


Percent increase in traumatic brain injury-related emergency department visits, hospitalizations, and deaths in the U.S. from 2006 to 2014.

Source: CDC

$1.8 billion

Estimated amount of money collectively raised by dozens of commercial funding entities since 2016 as the U.S. market
for third-party litigation finance has grown.

Source: The Third Party Litigation Funding Law Review - Edition 3

About The Authors
Phil Gusman

Phil Gusman is senior managing editor for CLM Magazine and Construction Claims magazine.  phil.gusman@theclm.org

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