One of partners, Bradley J. Survant, has always told me that when you try to get cute in this business, you usually end up getting bitten.
I saw this on display last week in a case I tried with W. Carl Reynolds in Indiana. To make a long story short, out of reaction to something we did in the case, and in order to seemingly kick sand in our faces, the defense attorney re-called one of our witnesses. In the process of examining that witness, some information came out that was extremely damaging to the defense. The jury would never have known this information but for the petulant act of the defense attorney. We ended up getting a substantial verdict for the plaintiff in the case, and it was a case in which the facts, combined with an unfavorable jury and venue, presented a very high likelihood of a defense verdict. Ultimately, we will never know if the defense mistake was important to the jury’s decision, but getting too “cute” in that case completely blew up in the defense’s face.
I saw another example of this recently in the Georgia Court of Appeals advance sheets in a case titled Carter v. Progressive. In this case, there was a liability policy with a limit of $30,000, and UM coverage on top of that. The plaintiff settled with the liability carrier with a limited liability release. The settlement indicated $29,000 of this was for the punitive claim, and $1,000 for the compensatory claim. While the case doesn’t say so directly, it seems clear the UM policy was the traditional, offsetting kind, and that the settlement with the liability carrier was structured in this way to manufacture more UM coverage. The Court of Appeals held that, by structuring the settlement this way, the plaintiff waived the right to go after UM coverage.
The moral of the story is, getting too “cute” will almost always hurt you in the end.