Insurance is complex, hard to understand and written in terms that only a Supreme Court justice would understand. This is the common wisdom. Common wisdom is not always wise. It is often incorrect and, at best, it is common.
Although it may seem difficult for those not in the insurance business to understand it, it is actually a simpler contractual relationship that is easier to grasp than a commercial lease. A lawyer expert can help the jury when they present evidence about an insurance dispute. The expert must convince the jury they understand the contract.
It is a common belief that lawyers make horrible witnesses. Contrary to common belief, lawyers can be great witnesses in a case involving insurance coverages or bad faith.
Qualification of a lawyer expert
One does not become an expert in insurance if they have a license to practice law. You need to have special knowledge, skills, experience, training or education in handling insurance claims and insurance. California Shoppers, Inc., v. Royal Globe Ins., is a case where a California lawyer expert plays a crucial role. Co., 175 Cal. App. 3d 1 (1985). The court denied permission for a lawyer expert witness to testify. The court found that, although the lawyer who sought to testify was a qualified trial attorney, his experience didn’t mean that he had any special knowledge, skills, experience, training or education that would make him an expert in insurance industry practices. Incorrectly, this decision was often cited to disqualify witnesses from testifying as experts in claims cases.
California Shoppers is often misunderstood to mean that an expert must have actual experience in handling claims before he can testify. California Shoppers did not disqualify the expert lawyer because he had no experience working as an insurance adjuster. The actual and supposed requirements of California Shoppers court are met by a lawyer expert who is specialized in providing insurance coverage advice.
Limitations on Testimony
Experts in insurance should not testify about the interpretation of the law, or draw conclusions regarding coverage for a loss. A lawyer expert can testify on legal issues, even though the focus of expert testimony was not to prove that coverage was available.
Expert testimony is not meant to advocate for one side or another, as the expert serves both the judge and the jury. The testimony of a lawyer expert should not be restricted to topics that require specialized knowledge, as opposed to common sense and moral judgment. “If the testimony is too limited, it is unlikely that the expert’s opinion will replace the independent exercise of common-sense by a jury. [Melton, Industrial Indemnity Co. 86 Cal. App. App. Rptr. Rptr.
The expert as teacher
The expert lawyer takes the stage as an educator. The lawyer expert is asked to inform the court and jury about the practices and customs of the insurance industry in relation to this particular case. The expert lawyer presents the information in a way that is easily understood by anyone taking high school civics classes.
A lawyer witness can help explain how insurance companies use lawyers’ advice to help their staff, who are not lawyers, understand the insurance contract and how it should apply. The expert also explained that the contract language can be relied upon by the client of an insurer to handle its claims. [Bank of the West, 2 Cal. 4th 1254 (1992).)
The lawyer-expert does not explain the meanings of clear and simple language in an insurance contract. However, the expert assists the jury in determining the best methods to use to understand how insurance companies and their counsel analyze and apply policy language to specific claims situations. This is vital for the expert in insurance law because there are many terms that insurance professionals use that have a special meaning that is not common to the general public.
The Proper Testimony of the Ultimate Facts
Because it addresses the final issue that must be determined by the trier, testimony in the form or an opinion is acceptable. After allowing the plaintiff’s witnesses testify that defendant’s conduct was bad faith, the California Supreme Court stated that the jury could benefit from an opinion of someone who was uniquely qualified to assess such matters in the contexts of similar disputes. [Neal, Farmers Ins. Exch., 21 Cal. 3d 910; 582 P.2d 990, 148 Cal. Rptr. Rptr.
An insurance claim case is incomplete without an expert. The lawyer-expert is present to assist the jury, who may have been led into believing that insurance is more complicated than ancient Sumerian. However, the jury must realize that insurance and claims handling are simply promises made by both parties and that it is up to them to prove that they kept their promises.
Preparation of the Lawyer Expert for Testimony
An attorney should not coach an expert. The expert should not be told by counsel what they want. However, it is essential that the expert is familiar with the areas he/she is expected to address during trial.
The trial lawyer must inform the lawyer expert that the expert was retained to serve the jury and not for one side. The jury must be informed by the insurance expert or the insurance lawyer expert that insurance is a mutual arrangement where the insurer promises to protect the insured from potential loss. The lawyer-expert can help the jury understand the situation by putting themselves in the shoes of the insured.
A lawyer expert in insurance cases must be prepared to explain to the trier of facts how insurance works to protect the insured, how the insured and the insurance company agree to fair dealings, and how insurers and insureds interpret an insurance policy.
An expert can assist the jury in understanding the relationship between definitions and conditions, warranties, exclusions and certificates.
The court and counsel for the insured will call a lawyer-expert to discuss insurance and claims handling with the jury. They will discover that the jury has information, free from emotion and advocacy, which will allow it to evaluate all evidence. A neutral lawyer expert, whose testimony is restricted to the practice and custom of insurers and their attorneys when faced with complex or difficult claims or where the claim must not be accepted, will inform the jury and help it fulfill its court-imposed duty. If the jury is intelligent and well-educated, it will be much easier to determine whether the insurer acted correctly or incorrectly in the case that was the subject of the lawsuit in which the expert testified. The task of determining whether the insurer acted properly or improperly in the claim that is the subject of the suit will be difficult for the jury and court without the help of a competent lawyer expert.