The Big Data/AI ‘Revolution’ Is Driving up Verdicts, Settlements as Plaintiffs Buy In

Nick Kosiavelon, an insurance defense attorney in Massachusetts, tells the story about some plaintiffs’ lawyers he faced off against in a recent brain-injury lawsuit. He said within an hour of seeing the list of potential jurors in the jury pool, the Florida-based lawyers Morgan & Morgan national injury law firm seemed to have an incredible amount of information on their laptops about each potential juror, including social media postings, property records, education levels, employment and more. The Morgan team was able to quickly decide who to exclude from the jury. “I mean, I don’t get that information in general, over time, because it’s a lot of work to get all that,” Kosiavelon explained. “They definitely had a lot more information than I had.” It was all on laptops and tablet computers. The plaintiffs’ table didn’t have a scrap of paper or briefcase on it during the two-week trial, Kosiavelon said. He wasn’t sure of the name of the software used by his opponents at the May trial. Morgan & Morgan attorneys and communications staff could not be reached by Insurance Journal for comment. But that software appears to be just one small part of what lawyers and an insurance executive have termed a troubling new world of insurance litigation: A growing number of injury and claims law firms—some of which may be flush with cash from investors and litigation funders—now hire online mock juries of as many as 1,200 people to test legal theories, sift through big data to find sympathetic jurors and court venues, and utilize artificial intelligence programs to instantly analyze their own and their opponents’ trial arguments. The tactics are aimed at one thing: driving jury awards and settlement demands higher and higher, insurers and lawyers said. “It’s true now more than ever: The competition is not other insurance companies. It’s the plaintiffs’ lawyers,” said Brian McCarthy, CEO of eMaxx Assurance, a group of Florida-based property/casualty insurance firms. This growing use of AI and software allows the plaintiffs’ lawyers to zero in on reptile tactics at trial, McCarthy said, referring to what some behavioral scientists have dubbed the “reptilian brain” – the oldest and most primitive parts of humans’ minds that can produce revulsion at an insurers’ actions or sympathy for an injured plaintiff. One product that has gained attention in recent months is “JuryBall”, a book and app published in 2024 by three successful trial lawyers, Alicia Campbell, John Campbell and Sean Claggett, the latter of whom is also a law professor. The book’s title refers to the 2003 book, “Moneyball”, about the use of data in baseball. It contends that vetting plaintiffs’ and probable defense arguments with hundreds of mock jurors will provide huge amounts of data, and exponentially increase damage awards. In one case study highlighted in the book, a child sexual-abuse victim in New Mexico was offered $15 million to settle. But arguments presented to online mock juries, with multiple variations, showed that even a bad day at trial for the plaintiffs’ firm would bring in a jury verdict of at least $77 million. The team went to trial and the jury returned an award of $485 million, the book explained. The use of mock juries is not new. Law firms of all stripes, to one extent or another, have long utilized focus groups to prepare for some trials. Claggett and the Campbells argue that’s no longer enough. Using vast numbers of mock jurors can produce better data and better insights. And mock jurors these days are easily found online, hired for less than $60 each to listen to and answer questions about a case argument that may take about an hour. After one argument is presented, another group of people hears a different variation, until the strongest case emerges, the $200 book explains. The book explains how to weed out “professional” mock jurors, those who sign up repeatedly, and those who live outside the United States. Katz Big data will soon be needed on every case worth more than $500,000, the book suggests. A website for JuryBall notes that a smartphone or computer app also is available, allowing lawyers to create questions for potential jurors and record their answers, jot down notes about the jury, and allocate points for each person. A purchase price for the app was not listed on the website, and the app was not found on the Apple AppStore. The heavy reliance on big data does not sit well with some lawyers who have relied on years of practice to hone their gut feelings about arguments, jurors and case presentation. “They’re taking instincts and intuition out of the equation,” said Greg Katz, national managing partner for Lewis Brisbois, one of the largest U.S. insurance defense firms. “They think they’ve come up with a different way to ring the bell and, in their words, add zeroes to awards.” Those zeroes appear to be piling up as private equity firms and other third-party litigation funding groups see lawsuits as a revenue stream to be exploited, Katz argued. Litigation funding in the U.S. has surged 70% in recent years, now topping $16 billion a year and is expected to reach $25 billion in the next decade, The Washington Legal Foundation reported in May. At the same time, lawsuits and litigation costs nationwide are on the rise, including class-action lawsuits, the American Tort Reform Association and other lawsuit tracking organizations contend. Over the past decade, injury lawsuits have soared 70% in state courts, and 33% in federal courts, according to data from Thomson Reuters Westlaw, the New York Times reported last month. Meanwhile, nuclear verdicts, those of at least $10 million, jumped 41% from 2024 to 2025 to their highest level since 2009, according to a report from Marathon Strategies. Related: Nuclear Verdicts Go Boom “That’s really the essence of this big-data revolution in litigation, as they call it,” Katz said. “So many plaintiffs’ firms have all this private equity money now that they can put into this.” Besides the greater risk of high-dollar losses and escalated defense costs and containment, taking a lawyer’s gut feelings out of the process also takes the fun out it for many attorneys, said John Riordan, an insurance lawyer with the Kelley Kronenberg firm. Still, he said he recognizes the growing importance of the big data/AI strategies. Jury selection is hugely important in most trials. Riordan “If plaintiffs’ counsel is employing these tools while defense counsel continues to rely exclusively on traditional questioning, handwritten notes, and instinct, the carrier may be placed at a strategic disadvantage during one of the most important stages of trial,” Riordan said. Another app, one of a few available on the AppStore, is JuryVision. It allows lawyers to give opening arguments or rebuttals, pick AI platforms, and then receive feedback from the software within minutes. A trial use by Insurance Journal showed the app’s feedback focused as much on verbal delivery and appearance as the substance of the opening argument. Lexis-Nexis also offers a “very expensive” platform known as Protégé that lets counsel analyze arguments, reference actual court opinions in the Lexis caselaw records (not hallucinated citations), and provide a roadmap for trial, Riordan noted. Some courts may not allow the use of AI in the courtroom, but it may not be so easy to detect so it is difficult to combat, said Kosiavelon, the Massachusetts insurance lawyer with the Boyle Shaughnessy law firm. Katz said more insurance carriers are buying into the idea of hi-tech data and AI in litigation, but many are not. He urged insurers and their defense firms to consider investing the resources in the new approach. Kosiavelon agreed. “It all comes down to what an insurance company wants to spend on it,” Kosiavelon said. In his brain-injury case, the artificial intelligence programs may not have mattered, he noted, adding that the plaintiff was not very credible, and real-time data probably didn’t help overcome that with the jury. At the end of the trial, the Middlesex County jury awarded less than 10% of what the plaintiff’s lawyers had asked for, Kosiavelon said. Katz agreed that the brave new world is scary, but it doesn’t mean trial lawyers will always win going forward. “We’re a large firm and we still get good results,” Katz said. “So I can’t say that “JuryBall” and all of this has changed the game completely. But you do need defense firms that understand it and have lawyers that are using the technology and are ready to fight.” Topics InsurTech Data Driven Artificial Intelligence Personal Auto