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INSURANCE BAD FAITH PART II: Discovering Hidden Paradise
A light breeze whispered through the pine and oak trees, weaving through the secluded valley where a spring-fed creek flowed. The sun dipped low, casting a golden hue across the hidden paradise the Prairie Barrister had found for a rare moment of peace. As they leaned on the railing of an old, retired railroad bridge and overlooked the valley that even native Nebraskans were surprised to see the first time, a fellow trial lawyer joined them. Their conversation soon turned to a topic that had been troubling the lawyer: the casual dishonesty in insurance defense tactics.
“Why do they keep trying the same old trick, Prairie Barrister?” the lawyer asked, frustration evident in their voice. “They look me in the eye and claim there’s no such thing as insurance bad faith in Nebraska and they won’t pay an excess settlement or verdict. Yet, we both know they’ve settled cases above the policy limits. They know the law, they understand its practical consequences but they pretend it doesn’t exist.”
The Prairie Barrister chuckled softly, the sound blending with the murmuring creek below. “It’s like this hidden paradise, my friend. Just because they don’t acknowledge it doesn’t mean it’s not here. They can fly over it a hundred times, but the truth remains right here.”
The fellow lawyer sighed, leaning over the bridge’s edge. “So how do we deal with this? It feels like they’re playing a game, trying to hide the truth from everyone, including their own clients, the people who are being sued.”
The Prairie Barrister grew more serious, their voice steady. “Let me give you some examples. First, when we get the chance to depose their client—the person being sued—we ask them directly: ‘Do you have fear of personal financial consequences from this lawsuit?’ It’s a fair question. If they’re afraid of losing their home or their savings because of a verdict, that could result in biased testimony in court. In fact, improper appeals for sympathy about financial consequences to the defendant are a common insurance defense tactic at trial. They know we can’t tell the jury that there is an insurance company who will pay the verdict, so they hint at the false idea that the defendant will have to pay the verdict and try to elicit sympathy for the defendant from the jury and sometimes even from judges. So, we want to know if the defendant will give testimony that seeks improper sympathy from the jury. Deposition is the time to find out.”
The other lawyer nodded thoughtfully, realizing the importance of this. “But why would they be afraid if their insurance is supposed to protect them?”
“Exactly,” the Prairie Barrister said with a knowing look. “That fear often exists because their insurance company or insurance lawyer hasn’t explained to the Defendant that, if the insurance company fails to settle within the policy limits, it’s on the insurance company to pay anything above those limits when an excess verdict results. When the Defendant admits they have fear of personal financial consequences during a deposition, it’s like revealing a hidden trail. It shows the Defendant has been kept in the dark.”
“And what if they say, “No, I don’t have any fear of personal financial consequences?”
The Prairie Barrister smiled, “Well then, we have admissible trial testimony that the defendant isn’t afraid of personal financial consequences and the jury need not be concerned about that either. We can tell the jury that their duty is to set aside any concern about how the verdict will affect the defendant, not to speculate about the Defendant’s ability to pay the verdict, and, instead, follow the law and deliver a fair appraisal of the harm caused by the incident. Afterall, if the defendant isn’t worried about the financial impact of the verdict, why should the jury be worried about it?”
“And the settlement opportunity letters? I heard you use those at depositions as well?” the fellow lawyer asked, eager to hear more.
“Those letters are key,” the Prairie Barrister explained. “We always make sure to send letters to the insurance company offering to settle for the policy limit. And during depositions, we can ask the defendant—the person being sued—whether they’ve ever seen those letters. It’s not confidential information; it’s just the truth. They are not protected by attorney-client privilege – they were written by me! But, if the defendant testifies they’ve never seen the letters, it proves their insurance company is withholding important information. It’s like showing them a map of a hidden path they never knew existed.”
The fellow lawyer looked out over the valley, contemplating this. “But what about when they claim their client is judgment proof and threaten that their client will file for bankruptcy if there’s an excess verdict? It feels like another attempt to scare us into backing down.”
The Prairie Barrister’s eyes twinkled with a knowing smile. “They use that tactic all the time, hoping we’ll back off. But I remind them that if their client is being put through bankruptcy just to protect the insurance company, then we have a bigger problem. Beyond that, a bankruptcy judge isn’t likely to approve anything if we’re willing to resolve the financial debt for $0 and an assignment of their claim for insurance bad faith instead. It’s not about taking money from the defendant’s pocket—it’s about holding the insurance company accountable for their unwarranted rejection of settlement opportunities which would have protected their client in the first place.”
“So, you’re saying that even if they try to block us at every turn, there’s a way to get the truth out?” the lawyer asked, a note of hope in their voice.
“Yes,” the Prairie Barrister said, turning to face the lawyer fully. “The truth has a way of coming out, no matter how hard anyone tries to hide it. And when it does, the defendant—who is just a person like anyone else—realizes that the insurance company isn’t protecting them. They start to see who’s really looking out for their best interests. It’s often a shock for the defendant to realize the lawyer suing them has been focused on protecting them from an excess verdict the entire time, while “their lawyer” has been focused on protecting the insurance company from an excess verdict the entire time.”
The fellow lawyer smiled, a sense of calm settling over them. “It’s like this place, isn’t it? A hidden paradise that you only see when you slow down and look for it.”
The Prairie Barrister nodded, glancing back at the quiet beauty of the creek and the valley. “Exactly. Just because it’s hidden doesn’t mean it’s not real. And just because they deny the existence of bad faith and their duty to pay excess settlements and verdicts doesn’t mean they won’t do it in the end. It’s our job to help them see what’s been there all along.”
With a final nod, the two trial lawyers turned back toward their cars, leaving the quiet of the valley behind. But they carried with them the conviction that, no matter how many times their opponents denied the truth, it would endure—waiting to be revealed in the courtroom, just like this hidden paradise waited to be discovered by those willing to look.
