The insurance industry's reluctance to change its claims and defense strategies is helping plaintiffs' attorneys secure larger and more frequent nuclear verdicts, according to a panel of brokers, claims and legal experts.
During a panel at InsuranceFest 2026 titled Claims & Courtroom Chaos: Surviving Nuclear Verdicts®, speakers argued that well-funded, data-driven plaintiffs' firms are outpacing the defense still running on decades-old playbooks, and that the gap is now showing up in casualty pricing.
Ashley Fetyko, partner at Tyson & Mendes, argued that insurers and defense teams are being outmaneuvered by plaintiffs' firms embracing litigation funding, artificial intelligence and sophisticated jury strategies.
"The biggest problem is us," Fetyko said. "If we as an industry fail to pivot our approach, we're the problem."
She said tactics that worked five, 10 or 20 years ago were no longer sufficient as plaintiffs' attorneys deployed more resources, tested cases with data and adjusted their approach in real time. Defense teams, by comparison, could still face difficulty obtaining approval for basic trial support.
The panel also challenged the conventional definition of a nuclear verdict as an award above a fixed dollar threshold. For Fetyko, disproportionality was a more useful measure, especially when non-economic damages were far removed from the underlying medical costs or facts. "A $3 million verdict could be nuclear if the meds are like two grand," she pointed out.
Caryn Siebert, vice president of carrier engagement at Gallagher Bassett, said juries were increasingly influenced by emotion, anger and the belief that companies should be punished.
Plaintiffs' lawyers, she added, were using carefully chosen language to frame defendants as unsafe or indifferent corporate actors. "It's emotionally driven," Siebert said. "They know exactly what they're targeting to get you mad."
The risk of a case turning nuclear could emerge as early as first notice of loss. Inconsistent discovery responses, poor witness preparation or conduct that appears evasive may reinforce the plaintiff's narrative that a company is hiding information or placing profits ahead of safety.
This makes early fact gathering and candid communication critical, Siebert said. She urged brokers, carriers, third-party administrators and defense counsel to avoid surprises and confront damaging facts quickly.
The fallout is now visible in casualty pricing. Moderator Adil Husain, founder of The Intelligence Council, noted that casualty renewals are rising 20% to 30% even as property softens, and that commercial auto liability has posted underwriting losses for 14 consecutive years despite 58 straight quarters of rate increases. This is evidence, according to Husain, that rate is chasing severity and losing.
For Brandon Schuh, senior vice president and head of specialty insurance at Christensen Group, casualty pricing had become increasingly divided. Accounts with clean loss histories could still find capacity and flat or lower renewals, while risks with claims activity were facing sharply higher costs.
He identified litigation financing as one of the most significant forces reshaping the claims environment. External capital allows smaller plaintiffs’ firms to pursue expensive cases, hire experts and withstand prolonged litigation without pressure that may once have forced an early settlement.
“A case that might have never seen the light of day 20 years ago, if it’s a good case today, they’re going to be well-funded,” Schuh said.
The defense bar’s response, the panel said, should include earlier intervention, stronger coordination and more willingness to try defensible cases. Schuh warned that insurers were trying fewer cases, while the matters reaching trial were often the industry’s weakest.
The panel also urged defense teams to introduce their own damages number early instead of allowing plaintiffs’ counsel to anchor jurors with an unchallenged demand. Fetyko said plaintiffs’ lawyers often begin shaping expectations during jury selection, effectively screening for jurors prepared to deliver a large award.
Siebert said brokers could help ensure clients understand the seriousness of the exposure and connect them with specialist counsel before a major loss develops into a courtroom crisis.
Schuh described the broker as the “quarterback” coordinating the insured, carrier, TPA and legal team: “For example, if you work in trucking and your client has a deductible or self-insured retention of more than $50,000 or $100,000, the approach needs to be strategic, not merely tactical,” he said.
“Introduce the client to specialists in the field. Make sure the client has a clear, strategic path for defending these cases, and ensure there is alignment between the client and the carrier. Without that alignment, they should consider taking the policy to market, because otherwise, their strategy may not matter.”
