Insurance Defense Pre‑Trial Report

Step-by-Step Instructions: Pre-Trial Report to Insurance Carrier Instructions from Senior Partner to Associate Associate: This pre-trial report is arguably the most important document we'll produce for our carrier client. It must be completely objective, honest about risks, and provide clear recommendations. Remember: our duty is to give the carrier the information they need to make informed business decisions. Sugar-coating problems or overselling our chances serves no one and could create coverage issues later. However, trying to influence your client to settle when unnecessary is also a detriment to the client. Be thorough and objective.

STEP 1: HEADER AND BASIC CASE INFORMATION Format: PRE-TRIAL REPORT

TO: [Claims Manager Name and Title] [Insurance Company] FROM: [Attorney Name], [Firm Name] DATE: [Current Date] RE: [Insured Name] v. [Plaintiff Name] [Court and Case Number] [Policy Number] [Claim Number] Date of Loss: [Date] Trial Date: [Date] - [Time] Example: PRE-TRIAL REPORT

TO: Sarah Johnson, Senior Claims Manager National Insurance Company FROM: Michael Rodriguez, Partner, Rodriguez & Associates DATE: April 15, 2024 RE: Sarah Williams v. Metro Retail Corp. Superior Court of Cook County Case No. 2023-L-004567 Claim No: 2023-45678 Date of Loss: March 12, 2023 Trial Date: June 17, 2024 - 9:00 AM

TEP 2: INTRODUCTION AND PURPOSE Instructions: 2.1 State Purpose and Context Explain this is the pre-trial assessment Reference timeline (typically 60 days before trial) Note any recent developments Set expectations for the report's scope Example: INTRODUCTION

This report provides our assessment of the above-captioned matter scheduled for jury trial on June 17, 2024, before the Honorable Jennifer Martinez in Courtroom 302. With approximately 60 days remaining before trial, this report analyzes our trial preparation, assesses strengths and weaknesses, projects potential outcomes, and provides settlement recommendations.

Since our last report dated February 1, 2024, we have completed all discovery, including the plaintiff's independent medical examination and surveillance video review. No significant developments have changed our overall assessment, though plaintiff's recent wage loss documentation has increased our exposure estimate modestly.

STEP 3: PERTINENT DEADLINES Instructions: 3.1 Critical Dates and Deadlines Trial date and estimated duration Expert witness deadlines, if not passed already. Discovery deadlines, if not passed already. Settlement conference dates, if applicable. Example: TRIAL LOGISTICS AND UPCOMING DEADLINES

Trial Date: June 17, 2024, 9:00 AM Estimated Duration: 4-5 days Judge: Hon. Jennifer Martinez, Courtroom 302 STEP 4: FACTUAL SUMMARY Instructions: 4.1 Provide Objective Factual Overview Summarize incident chronologically Include only facts supported by evidence Note disputed facts clearly Keep it concise but complete Reference key evidence/witnesses Include photographs if necessary. STEP 5: VENUE AND JURY POOL ANALYSIS Instructions: 5.1 Assess Venue Characteristics Historical verdict data for this venue Demographic composition of jury pool Reputation for plaintiff-friendly vs. defense-friendly verdicts Recent similar cases and outcomes STEP 6: ATTORNEYS AND JUDGE ANALYSIS Instructions: 6.1 Analyze Opposing Counsel Experience and reputation Trial record and typical results Strengths and weaknesses Settlement tendencies 6.2 Assess Trial Judge Experience and background Reputation for fairness Typical case management style Evidentiary rulings tendencies Whether the Judge has had past rulings that are favorable or unfavorable and the impact on the case. STEP 7: COSTS AND FEES ANALYSIS Instructions: 7.1 Document Costs to Date Attorney fees incurred Expert witness fees Investigation costs Court costs and filing fee 7.2 Project Trial Costs Additional attorney time for trial prep and trial Expert witness trial testimony fees Exhibit preparation costs Post-trial costs if applicable If the carrier takes costs into consideration, if the trial will be costly, they want to know. It is important to provide an objective cost analysis so there are no surprises once trial is complete and the final bills are produced. STEP 8: MOTIONS PRACTICE – IF ANY Instructions: 8.1 Completed Motions Impact on trial strategy 8.2 Pending/Planned Motions Is there a motion for summary judgment still pending that could change the case in the next 60 days? What is the likelihood of success and failure. If not successful, does it create an issue for appeal. Motions in limine to be filed Likelihood of success Strategic purpose STEP 9: LIABILITY ANALYSIS Instructions: 9.1 Elements of Plaintiff's Case What plaintiff must prove Strength of evidence for each element Our defenses and their strength 9.2 Comparative Negligence Analysis Evidence of plaintiff's fault Likelihood of reducing verdict percentage 9.3 Other Affirmative Defenses Evidence of the success of those defenses and likelihood of success. STEP 10: MEDICAL TREATMENT AND DAMAGES ANALYSIS Instructions: 10.1 Pre-Incident Medical History Prior injuries or conditions Pre-existing complaints Impact on current claims 10.2 Post-Incident Treatment Immediate treatment Ongoing care Future medical needs Relationship to incident 10.3 Economic Damages Assessment Medical expenses (past and future) Lost wages Lost earning capacity Other economic losses 10.4 Non-Economic Damages Assessment Pain and suffering Loss of enjoyment of life Typical awards in similar cases

STEP 11: EXPERT TESTIMONY ANALYSIS Instructions: 11.1 Plaintiff's Experts Qualifications and credibility Expected testimony Strengths and weaknesses Impeachment opportunities 11.2 Defense Experts Our experts and their testimony Effectiveness and credibility How they counter plaintiff's experts STEP 12: PARTY PRESENTATION ANALYSIS Instructions: 12.1 Plaintiff Assessment Credibility and likability Deposition performance Anticipated trial presentation Impeachment opportunities Impact on jury 12.2 Defendant/Insured Assessment Corporate representative presentation Employee witnesses Overall impression on jury STEP 13: SURVEILLANCE AND IMPEACHMENT EVIDENCE Instructions: 13.1 Surveillance Evidence What surveillance exists Quality and usefulness Inconsistencies with plaintiff's claims Strategic use at trial 13.2 Other Impeachment Evidence Social media evidence Witness statement inconsistencies Medical record contradictions STEP 15: TRIAL OUTCOME PREDICTIONS Instructions: 15.1 Likelihood of Defense Verdict Percentage estimate with reasoning Factors favoring defense verdict Risks to defense case 15.2 Verdict Range If Plaintiff Prevails Low, middle, and high estimates Factors affecting verdict size Comparative negligence im STEP 16: SETTLEMENT RECOMMENDATIONS Instructions: 16.1 Current Settlement Posture Plaintiff's demand Our last offer Movement in negotiations Is there any hope? 16.2 Recommended Settlement Strategy Optimal settlement range Timing considerations Alternative approaches STEP 17: FINAL RECOMMENDATIONS AND CONCLUSION Instructions: 17.1 Summary of Key Points Overall case assessment Primary risks and opportunities Cost-benefit analysis Is this a case we should take to trial or use all efforts to resolve it. 17.2 Specific Recommendations Settlement vs. trial recommendation Required approvals or decisions Next steps and timeline FINAL REVIEW CHECKLIST FOR PRE-TRIAL REPORTS Completeness Check: All case identifying information included Trial logistics and deadlines covered Factual summary is objective and complete Venue and jury analysis provided All attorneys and judge assessed Complete cost analysis (incurred and projected) Motion practice summary included Liability analysis is thorough and honest Medical treatment and damages fully analyzed Expert testimony assessment complete Party presentation analysis included Surveillance and impeachment evidence covered Theory of case clearly articulated Outcome predictions are realistic and supported Settlement recommendations are specific and justified Objectivity and Honesty: Weaknesses in defense case acknowledged Risks clearly identified and quantified Plaintiff's strengths fairly assessed No over-promising of likely outcomes Settlement ranges are realistic Client Service: Business implications clearly explained Recommendations are actionable Cost-benefit analysis supports decisions Alternative strategies presented Timeline for decisions provided Remember: This report will likely be reviewed by multiple levels of claims management and may be subject to discovery in bad faith litigation. Every statement must be accurate, defensible, and focused on serving the client's best interests, whether that is to settle or to take the risk and go to trial as the risk (depending on the analysis) could be worth it. Client’s do not like attorneys who said the case was defensible all the way up just before trial and then to settle because trial is a lot of work. Either the case is defensible and the risk is worth it or it is not. Alternatively, there are some facts that have come up that have changed the analysis since the last report. But, we should make recommendations objectively.