"Refuting Fake News"
Clapp and Ronson note that today's reality of rising public distrust in institutions and phrases like "fake news" have given way to a commonly used tactic in which plaintiffs' attorneys exploit this cynicism to prove their cases and increase jury awards. For instance, a plaintiff's attorney may argue the defendant altered or falsified documents that contradict the plaintiff's version of the facts of the case.
Claims professionals or defense counsel may initially shrug off such outlandish allegations, but Clapp and Ronson suggest tackling these head on to avoid further conflict. Left unchallenged, the jury may consider these arguments at trial, which could increase the risk of a large verdict if the jury accepts the plaintiff's argument due to a predisposed distrust of corporate or institutional defendants.
"The best way to counter such tactics is to prepare as soon as possible after the loss occurs," said Clapp and Ronson. "It is important to ensure a 'litigation hold' is in place, which will direct custodians of records to preserve potentially relevant documents and electronically stored information."
While courts are generally reluctant to allow a plaintiff to argue a defendant's evidence is falsified or should be discredited without supporting evidence, plaintiffs will continue to use such tactics when their version differs from the defendant's as it may resonate with the jury in the "fake news" era. Clapp and Ronson encourage claims professionals and defense counsel to discuss these issues as soon as possible to create a plan of action to thwart these tactics.
Read the full article in CLM magazine by clicking here.