The Future of Insurance – Adam Masarek, Lex Machina

Episode InfoAdam Masarek is a lawyer, epidemiologist (MPH), and the Legal Marketing Manager for Lex Machina®, the LexisNexis® Legal Analytics® platform. He is dedicated to empowering legal and insurance professionals with data-informed strategies to enhance business development, litigation outcomes, and the rule of law.

Episode Overview:

In this episode, we sit down with Adam Masarek, leader of content marketing and thought leadership at Lex Machina, to delve into the evolving landscape of litigation within the insurance industry. Masarek, whose background in epidemiology and extensive experience with legal data analysis provides a unique perspective, discusses how Lex Machina leverages data to understand litigation trends and inform decision-making.

• Lex Machina's Role in Litigation Analysis: Masarek explains his role at Lex Machina, emphasizing their unique approach of combining legal data with deep analysis of recent trends. This includes their popular litigation report series, which explores trends in areas like insurance coverage and sports litigation.

• Epidemiology and Legal Data: The conversation draws an intriguing parallel between epidemiology and legal data analysis. Masarek highlights how understanding patterns and trends in litigation is akin to understanding disease outbreaks, requiring a data-driven approach to identify causes and potential solutions.

• The Impact of Legal Data on Practice: The discussion explores how legal analytics are transforming legal practice. While predicting specific outcomes remains challenging due to variables like jury composition and human elements, data-driven insights allow for more precise and confident decision-making. This includes strategic choices about filing locations, potential case values, and overall legal strategy.

• "Social Inflation" and Its Drivers: A significant portion of the conversation focuses on "social inflation," the phenomenon of awards and settlements outpacing general economic inflation. Masarek and the interviewer discuss potential culprits, including increased attorney advertising, the rise of litigation funding, and a more adversarial stance by insurers leading to more trial-bound cases.

• Historical Context of Litigation Concerns: The episode touches upon the long-standing nature of concerns about a "lawsuit crisis," noting that such discussions have occurred for centuries. However, recent data from platforms like Lex Machina are providing empirical evidence for some of these trends, particularly concerning jury verdicts.

• Specific Litigation Trends:

  • "Reptile Theory": The discussion touches on the "reptile theory," a plaintiff tactic emphasizing jurors as community protectors who should punish defendants.

  • Practice Area Variations: It's noted that surges in litigation costs and complexity vary by practice area. Patent litigation and trade secret disputes have seen significant increases, while environmental claims and commercial contracts have not shown the same growth.

  • Increased Filings: There's a noted increase in filings for tort claims, slip-and-falls, and automobile collisions in both federal and state courts.

  • Insurance Coverage Lawsuits: A sharp rise in coverage disputes related to commercial liability policies is highlighted, with record numbers of lawsuits filed in recent years. This trend is also observed in homeowners' coverage cases, particularly those related to hurricanes.

  • Workers' Compensation: The increasing representation in workers' compensation claims is discussed, with a significant portion of claims now coming in with an attorney already attached, making early, non-adversarial resolution more challenging.

• The Role of Attorney Advertising and Litigation Funding: The pervasive nature of attorney advertising across various platforms (billboards, social media) is examined, with the observation that it's a uniquely American phenomenon. Litigation funding is also identified as a growing factor influencing the legal landscape.

• The Future of Litigation: Masarek expresses that the current trajectory suggests that increased litigation filings are likely here to stay, indicating a "new normal." Factors like shifting labor markets, economic inflationary pressures, ubiquitous attorney advertising, and the continued growth of litigation funding contribute to this outlook. While acknowledging the potential for policy responses, the current data points towards a sustained trend.

• Lex Machina's Goal: The ultimate aim of Lex Machina is to empower lawyers, adjusters, and other legal professionals with data for informed decision-making, leveling the playing field for smaller entities against larger corporations. They aim to reduce the "waste of resources" often associated with trials by facilitating more efficient and data-informed negotiations.

• Emerging Challenges: New complexities, such as the use of artificial intelligence by insureds and cybersecurity risks, are presenting novel situations with limited precedent, potentially leading to increased litigation.

This episode is brought to you by The Future of Insurance book series (future-of-insurance.com) from Bryan Falchuk.

Follow the podcast at future-of-insurance.com/podcast for more details and other episodes.

Music courtesy of Hyperbeat Music, available to stream or download on Spotify, Apple Music, and Amazon Music and more.