Nick Kosiavelon, an insurance defense attorney in Massachusetts, tells the story about some plaintiffs’ lawyers he faced off against in a recent brain-injury lawsuit.
He said within an hour of seeing the list of potential jurors in the jury pool, the lawyers from national injury law firm Morgan & Morgan seemed to have an incredible amount of information on their laptops about each potential juror, inc
luding social media postings, property records, education levels, employment and more. The Morgan team was able to quickly decide whom to exclude from the jury.
“I mean, I don’t get that information in general, over time, because it’s a lot of work to get all that,” Kosiavelon explained. “They definitely had a lot more information than I had.”
It was all on laptops and tablet computers. The plaintiffs’ table didn’t have a scrap of paper or briefcase on it during the two-week trial, Kosiavelon said. He wasn’t sure of the name of the software used by his opponents at the May trial.
Morgan & Morgan attorneys and communications staff could not be reached by Insurance Journal for comment.
But that software appears to be just one small part of what lawyers and an insurance executive have termed a troubling new world of insurance litigation: A growing number of injury and claims law firms—some of which may be flush with cash from investors and litigation funders—now hire online mock jurie
s of as many as 1,200 people to test legal theories, sift through big data to find sympathetic jurors and court venues, and utilize artificial intelligence programs to instantly analyze their own and their opponents’ trial arguments.
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The tactics are aimed at one thing: driving jury awards and settlement demands higher and higher, insurers and lawyers said.
“It’s true now more than ever: The competition is not other insurance companies. It’s the plaintiffs’ lawyers,” said Brian McCarthy, CEO of eMaxx Assurance, a group of Florida-based property/casualty insurance firms.
This growing use of AI and software allows the plaintiffs’ lawyers to zero in on reptile tactics at trial, McCarthy said, referring to what some behavioral scientists have dubbed the “reptilian brain” – the oldest and most primitive parts of humans’ minds that can produce revulsion at an insurers’ actions or sympathy for an injured plaintiff.
One product that has gained attention in recent months is “JuryBall”, a book and app published in 2024 by three successful trial lawyers, Alicia Campbell, John Campbell and Sean Claggett, the latter of whom is also a law professor. The book’s title refers to the 2003 book, “Moneyball”, about the use of data in baseball. It contends that vetting plaintiffs’ and probable defense arguments with hundreds of mock jurors will provide huge amounts of data, and exponentially increase damage awards.
