On November 14th and 15th in Washington D.C., Ross Weiner and Will Marra were on different panels discussing the current state and future of litigation funding and insurance.  Here are some key takeaways:

• The litigation insurance industry has been hamstrung by a series of well-publicized losses (or cases that are likely to lead to losses) while not benefitting from the myriad cases on which insurers have succeeded.  The industry needs to do more to publicize the victories to offset the sting of some of the defeats.
• For cases in which litigants are looking for insurance (e.g., judgment preservation insurance or adverse judgment insurance), a paramount concern to insurers should be the litigant’s motivation for seeking the insurance.  If the story is not compelling, there is a higher likelihood that adverse selection is at play. 
• According to Paul Clement, there is no question that bigger judgments get more scrutiny on appeal, but as a society, that is a proposition we should welcome. 
• In any litigation insurance deal, it is critical to align incentives.  If a bound insurance policy completely disincentivizes settlement, you are likely looking at a misalignment of interest.  This can be addressed through higher retentions and judgment preservation insurance for some—but not all—of a judgment. 

To learn more about the Contingent Risk Insurance Conference, click here.