Back when I was young and athletic, I was invited to play on a softball team organized by a large law firm in Chicago, where a good friend of mine from college was a first-year associate. When a newbie showed up after a few games, we stashed him in right field, hoping no one would hit the ball to him until we could figure out whether he could play. Alas, someone lashed a one-hopper to him, and the ball hit something in the ground, took a funny bounce and obliterated the poor guy's nose.
After we got the bleeding to stop and someone volunteered to take him to the emergency room, the young associates indulged in some lawyer humor and wondered whom they should sue.
The batter was clearly liable for hitting the ball so hard, right? But what about the pitcher, who served up such an inviting ball? Quickly, they settled on what everyone agreed was the right answer: They should sue the township that owned the field. After all, it had the deepest pockets, and any jury would root for the poor guy with the shattered nose rather than the nameless, faceless organization that maintained the field.
When I first heard the term "social inflation" and learned how "nuclear" and even "thermonuclear" verdicts were inflating insurers' costs far beyond what was reasonable, I assumed the issue was just another flavor of that conversation on the softball field in Chicago. Insurers have deep pockets and don't have sympathetic faces. (Sorry, Flo.) Individuals who sue insurers can generate enormous sympathy.
But a presentation at the recent Joint Industry Forum, hosted by the Insurance Information Institute, convinced me that there's much more to the issue than little-guy-versus-big-guy — and that the language we use is part of the reason insurers keep losing.
While insurers have been talking about social inflation for decades, roughly no one outside the industry knows what the term means or finds it terribly offensive. But when you talk about legal system abuse — a term that can be justified in many, many cases — the issue pops into focus. References to the "dark money" financing the surge of lawsuits and to the "billboard attorneys" who pursue them also can grab people by the nose hairs.
Let's fight back with sharper language.
After the Joint Industry Forum, I chatted with Sean Kevelighan, the CEO of the Triple-I, about the testing they've been doing on what language works. He said the term "social inflation" has been around in the industry since it popped up in a Berkshire Hathaway earnings statement back in the 1970s and had just become accepted. But when the Triple-I began testing alternatives, including "legal fraud," they found that "legal system abuse" resonated. When the Triple-I representatives met with editorial boards in Florida to talk about the problems there, which have been exacerbated by a wild number of lawsuits, they found that "people were repeating the term by the end of the meeting," Sean said.
To reinforce the fact that many of the lawsuits are abusive, not just part of the normal friction between those making claims and those paying them, the Triple-I also tried to figure out how to zero in on third-party litigation funding.
Sean said investors are viewing insurance lawsuits as an asset class. Investors provide what appear to be billions of dollars to back lawsuits and expect a certain (very high) return on their money. The investors don't care about the merits of the case, and settlements they win don't do much, if anything, for the little guy.
"Most legislators don’t even know about the industry," Sean said. "They’re surprised."
But "third-party litigation funding" is an ungainly term. What works better? "Dark money."
So do references to the "billboard attorneys" who are soliciting claimants. If you drive any distance these days, you can't escape the ads that feed into the litigation frenzy.
The Triple-I is working to connect the legal system abuse, dark money and billboard attorneys to higher premiums for insureds, but the conceptual leap for regulators and state legislators turns out not to be that hard. The surge in lawsuits financed by investors and pursued by attorneys who are only out to make a buck is pretty obviously connected to increased premiums for everyone.
To test the recommended new language, the Triple-I recently took out a billboard in Atlanta and set up related digital advertising. Lo and behold, the billboard company wouldn't let the Triple-I mock billboard attorneys in its ad. The company wouldn't allow a reference to trial attorneys, either, but accepted the claim that legal system abuse raises insurance costs — and digital advertisers at nearby bus stops happily accepted the language about billboard lawyers. Sean said those digital ads had roughly a 5% clickthrough, versus the norm of maybe 1%.
I realize that social inflation... er, legal system abuse... is a highly complicated issue that goes far beyond language, but I focus on the language here both because the import took me by surprise and because I've written and published extensively on the other aspects of the problem.
Back in March, I wrote a Six Things on the growing involvement of private equity in lawsuits against insurers. In it, I cited an article that dramatized the threat of spurious litigation. I also published two highly read articles, here and here, on how plaintiffs' attorneys are winning the battle against industry attorneys when it comes to using AI. I'd also encourage you to check out a deep look at legal system abuse published by the Triple-I.
Among other things, it reports:
"The Wall Street Journal reports that nearly 800,000 television advertisements for mass tort cases ran in 2023, with costs exceeding $160 million. The article also revealed the average loan directly to law firms fell in the range of $20 million to $100 million, with returns for funders expected to climb as high as 20 percent. Meanwhile, federal civil cases saw a 24 percent increase in filings during 2023, a trend driven by a rise in mass tort lawsuits."
I wish I could offer hope that the excessive litigation against insurers would just fade away. In fact, I was struck by something I wrote back in March. I marveled that a startup, EvenUp, that uses AI to sue insurers had managed to raise money at a $325 million valuation. Well, it raised money again, just six months later. The current valuation: More than $1 billion.
Cheers,
Paul