20 Trial Lawyer • Spring 2023 Gretchen Mandekor By Gretchen Mandekor OTLA Guardian Should you arbitrate your client’s UM/ UIM case or take it to a jury trial? There are so many things to consider in reaching an answer to this question. Let’s ponder this question with my favorite form, haiku. A young associate attorney was invited to lunch with a senior partner of the firm. The senior partner asked the associate what one should consider when deciding whether to arbitrate a UIM claim or take it to trial. After much thought, the associate asked: Do I arbitrate or seek a jury trial? Which do I prefer? To which the partner replied: Unask the question! Do not consult your wants: ask what serves the client? As always, you must put your client’s interests first. Although trial may be a lot more fun for you, it is generally not the best venue to present your client’s first party claims. The focus of this article will be from the plaintiff’s perspective (more properly called the claimant in the arbitration setting, but to simplify matters I’ll use the moniker plaintiff throughout). In sum, as a general rule when it comes to UM/UIM claims, binding arbitration is better for plaintiffs than trial. The multiple reasons are discussed below. Less of a liability hurdle Arbitrators are more generous to plaintiffs overall, in all respects. Arbitrators just tend to give the benefit of the doubt to plaintiffs. Defense arbitrators know this. They can argue all they want that the arbitration award should be consistent with what a jury would do, but the plaintiff’s arbitrator and swing arbitrator will both eschew this line of thinking and win this battle. Defense arbitrators very rarely bother to raise this argument. They generally accept the fact that a contested liability case will result in an award favorable to the plaintiff and the damage award will be higher than any likely jury verdict would be in the same case. If liability is unclear or there is a medical causation question or anything else at issue that could be potentially fatal to your client’s claims, you should think twice about putting your case before a jury. This is true even if it would result in otherwise unavailable attorney fee recovery. If you face any such hurdle, you are likely better off arbitrating. Simply put, jurors are more suspicious and conservative. An effective defense attorney can educate them and will easily diffuse the “big bad insurer” and “deep pockets” thinking from the get go in voir dire. When I was on the defense side, I hated arbitrating these cases because it was such an uphill battle, but I loved trying them to a jury. At trial, I educated the jurors that they were required to treat the UM/UIM carrier the same as if it was an individual person. I emphasized this point in closing by citing jury instructions requiring jurors to set aside “prejudice or bias” because “all parties are equal before the law.” UJCI 5.03. I even managed to convince a few judges to give special UM/UIM instructions admonishing the jurors that they are “not to consider the fact that the defendant is an insurance company as opposed to an individual.” These are powerful words for the defense. Your best bet to avoid them is to arbitrate. ARBITRATION TRIAL VS.
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