Over the past few years, we have participated in mock jury exercises in some of our coverage cases for policyholders. These exercises are extremely helpful in preparing for trial. They allow us to road test trial themes and to see what points gain transaction with our mock jury. Mock jury exercises sometimes will provide us with great handles for the real trial, such as a phrase or analogy that we had not thought of ourselves. We watch via closed-circuit television or through a one-way mirror while the jurors discuss the case and deliberate (they also fill out a raft of questionnaires that help us understand attitudes, demographics, and the like). But it is the deliberations that are most helpful to the trial lawyer. As an example, a mock juror in one exercise said, “A half truth is a whole lie,” which nicely characterized what we were trying to say about how the insurance company had misrepresented the policy language to the policyholder by omitting the key sentence that undercut its position entirely.
Many claims-made liability-insurance policies have an important extension of coverage that enables a policyholder to lock in coverage in one year – the year that a bad situation is discovered that later may produce claims– even though claims against the insured arising from the situation are not made until after the policy period. Under “notice of circumstances” provisions, an insured can provide written notice of such a circumstance to its claims-made carrier and later-asserted claims will be deemed to have been made during the policy period in which “notice of circumstances” was given.