When Roads Diverge in the Wood: the Power of Risk in Building a Fulfilling Career and Stopping Nuclear Verdicts?

Authors: Ashley Paige Fetyko & Grace Shuman

Two roads diverged in a yellow wood,

And sorry I could not travel both

And be one traveler, long I stood

And looked down one as far as I could

To where it bent in the undergrowth[…][i]

— Robert Frost

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The concept of risk is familiar to both attorneys and the insurance industry. As insurance defense counsel, we occupy a unique space in that Venn diagram: one that is, by nature, risk averse. We do all we can to proactively address and minimize risk: risk of loss, risk of injury, risk of damage. Our industry is largely occupied by rule-followers, while the plaintiffs’ bar has historically been more adaptive, creative, and not bound by the strict construction of rules encumbering the defense.

But what if risk – the very thing our industry is focused on minimizing – is actually the key to our success?

Nuclear Verdicts? (outsized, unjust, disproportionate awards) continue to grow in both frequency and severity[ii], occurring in places and cases not traditionally associated with monumental payouts. This is the case not because of common scapegoats like third party litigation funding, or attorney advertising, or lack of tort reform: this is the case because the plaintiff’s bar is adept at deploying psychology in trial, and the defense continues to allow jury anger to go unchecked. We rely on outdated and ineffective defense strategies while failing to address the elephant in the courtroom: plaintiffs’ lawyers are willing to risk it all in the name of an astronomical payout. Their goal is singular, and their strategies many. How can we blame juries for awarding Monopoly-money-sized awards when plaintiffs’ counsel is willing to go big or go home, and the defense plays small?

Giving a number while seeking a defense verdict is risky. But studies (and our experience) have confirmed the chances of a defense verdict actually increase when the defense offers a counter-anchor.[iii] Accepting responsibility in every single case feels dangerous. But common sense tells you it is the easiest way to defuse juror anger by validating it.[iv]

These methods (along with personalizing the defendant and arguing pain and suffering) represent risk, as they are a wild departure from what has traditionally been done. But the changed landscape and arguably a greater societal tendency toward anger mandates we challenge ourselves to take it. Why should we play small? Our clients deserve counsel willing to leave it all on the field.

Risk has its benefits in career progression, too. The authors of this article are both attorneys within Tyson & Mendes’ Communications Department, a highly specialized team of media and communications professionals within the firm.

Ashley is a Partner and Head of the Department; Grace is Communications Counsel. Together, we create all the legal content for firm marketing and communications initiatives, deliver speeches and presentations across the country to carriers and counsel alike, advise on legal issues internally, create the educational programming for the firm’s many educational initiatives (Tyson & Mendes University, Tyson & Mendes Attorneys in Residence, Trial Academy, and the Nuclear Verdicts? Defense Institute), and oversee public relations for the firm. We drive firm business through compelling and insightful legal content and support firm culture through the creation of intentional communications strategies for both internal and external use, and we create impactful programming to change the landscape of insurance defense for the better.

Our roles are hyper nontraditional, and pursuing and creating them came at tremendous personal risk. Grace came to Tyson & Mendes as a new attorney, charting a nontraditional path while navigating professional growth for the first time. She knew she did not want to pursue traditional litigation, but felt compelled to find a role that would put her tremendous writing, research, and communication skills to use. While her classmates pursued traditional roles at firms, Grace accepted the challenge and risk of developing a role unlike anything she had seen before. Ashley came to Tyson & Mendes after a decade of practice, first as an employment litigation associate at a national firm, and then as a prosecutor throughout the state of Colorado. She was at a crossroads professionally after first-chairing over 80 jury trials and desiring the opportunity for greater creativity in her practice. Leaving the familiar behind entirely was a tremendous risk, especially for a mother of two young children.

But we agree: taking the risk to chart new paths forward was hard, but it was also the best decision we could have made. And our roles are testament to Tyson & Mendes’ investment in and dedication to innovation.

Risk is familiar, but that does not mean it is comfortable. The insurance defense industry must be willing to engage with the uncomfortable if the threat of Nuclear Verdicts? is ever to abate. Robert Frost had it right in 1915:

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??????????? I shall be telling this with a sigh

??????????? Somewhere ages and ages hence:

??????????? Two roads diverged in a wood, and I –

??????????? I took the one less traveled by,

??????????? And that has made all the difference.[v]

Sources

[i] Robert Frost, The Road Not Taken, Poetry Foundation, https://www.poetryfoundation.org/poems/44272/the-road-not-taken (last visited Nov. 20, 2024).

[ii] Swiss Re Institute, sigma 4/2024, Swiss Re (Sep. 7, 2024).

[iii] John Campbell, Bernard Chao, Christopher Robertson & David V Yokum, Countering the Plaintiffs Anchor: Jury Simulations to Evaluate Damages Arguments, 101 Iowa Law Rev. 543 (2016).

[iv] Robert F. Tyson, Jr., Nuclear Verdicts: Defending Justice for All, 1st Edition (2020).

[v] Robert Frost, The Road Not Taken, Poetry Foundation, https://www.poetryfoundation.org/poems/44272/the-road-not-taken (last visited Nov. 20, 2024).Fashley

View this article on the Tyson & Mendes website here: https://www.tysonmendes.com/when-roads-diverge-in-the-wood-the-power-of-risk-in-building-a-fulfilling-career-and-stopping-nuclear-verdicts/

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?Learn more about Ashley Paige Fetyko here: https://www.tysonmendes.com/attorneys/ashley-paige-fetyko/

Learn more about Grace Shuman here: https://www.tysonmendes.com/attorneys/grace-shuman/