When it comes to so-called "nuclear verdicts"—or "social inflation" in the insurance industry—hindsight is 20/20, as a survey of the highest payouts in motor vehicle accident and premises liability cases across the Southeast U.S. reflects.

When the defendant in one Georgia premises liability lawsuit dug its heels in on a $1 million settlement offer before trial, it probably wasn't expecting an $81 million verdict from DeKalb County jurors, who sided with a U.S. Navy veteran who'd been robbed and shot outside a Kroger shopping center.

And although that verdict was reduced to reflect 14% liability by the shooters, the final amount was still a bruising $69.6 million.

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It's an example of how insurance litigation can become explosive, with multimillion-dollar consequences for defendants' insurers, as seen in a cloud-based settlement and verdict database from CaseMetrix, which collects information from law firms in the Southeast U.S., including Georgia, Florida, North and South Carolina, Tennessee, Alabama, Texas and Virginia.

And that tension comes at a steep price for insurers, say consultants and other experts who work with attorneys.

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Infographic design by Chelsey Fredlund

Settlements are less likely than ever, according to plaintiffs attorney Drew Ashby of The Ashby Firm in Atlanta, who specializes in industrial accident, motor vehicle crash and product defect cases, and spent seven years in commercial defense.

Ashby says he's witnessed a drop in collegiality between defendants, insurance companies and their lawyers as they attempt to shift fault to one another in a clash of agendas.

In two recent cases that resulted in a large verdict and settlement, Ashby said it was the insurance companies who refused to budge during settlement negotiations—against the wishes of their insured or the insured's lawyers.

"In the last three years or so, I have personally noticed that the insurance companies have become much more unreasonable with the way that they're evaluating cases, which, as a result, has forced more trials, which, as a result, has given us bigger verdicts," Ashby said.

In Ashby's view, before almost every large verdict is rendered, insurance companies and their defense counsel had an opportunity to settle within policy limits, but instead chose to roll the dice.

"That is what results in these kinds of verdicts," Ashby said.

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1. 'Anger Always Increases Damages'

Cases involving asbestos contamination, sexual assault, robberies, shootings and allegations that bars sold drinks to hit-and-run drivers proved most costly for defendants in premises liability trials, according to the CaseMetrix data.

But the end result often hinges on the defendant, the way California trial consultant Richard Gabriel sees it.

"The way a defendant defends a case actually can exacerbate the damages that the plaintiff is dealt," Gabriel said.

Gabriel is president of national consultancy firm Decision Analysis, which researches trial strategies and the psychology of juries. He's also helped legal teams in multiple high-profile criminal cases, including Casey Anthony's and O.J. Simpson's.

Insurers tend to look more skeptically, in Gabriel's experience, at injuries that are difficult to quantify, such as mild traumatic brain injuries, concussions or soft tissue injuries. He says some plaintiffs lawyers, particularly in Los Angeles, San Francisco, Chicago and Philadelphia, have become more aggressive in arguing that there are long-term effects.

And they're also increasingly sophisticated in the way they try cases—becoming more comfortable with asking jurors for more money.

That means the defense has its work cut out for it.

"They [plaintiffs lawyers] have studied jury decision-making, they've studied the dynamics and the psychology and the communication aspect of really how to talk to a jury, whereas the defense bar has not done as strong a job of teaching lawyers how to defend cases in front of jurors," Gabriel said. "A lot of times they take more of a factual and legal approach."

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2. Gabriel's Best Tip: Empathize

Decision Analysis coaches defense attorneys on how to show compassion for plaintiffs, while still defending liability—something Gabriel says usually "doesn't seem very natural to the defense," even though it can reduce the chance of big verdicts.

"Oftentimes, the defense attorneys want to zealously defend their client and, oftentimes, what that means is they jump in there and sometimes tend to vilify the plaintiffs in the case, which then will make the jury angry," Gabriel said. "One of the things we've studied in terms of damages is that anger always increases damages, even when there's not a punitive damages aspect to the case."

When Gabriel's team recently got a call after jurors had awarded more damages than the plaintiff had requested, the defendant assumed something went wrong with the jury. But in his experience, a result like that indicates jurors were angry—not just at the actual conduct of the defendant, but at "the way the case was actually tried."

Likewise, Miami plaintiffs attorney Ronald P. Weil said he's found "the coverup is always worse than the crime."

"Whatever the kind of case is, our view of what makes for a good case is where the defendant tries to deny that the sky is blue or that gravity works," Weil said. "Then juries can be quite punishing."

The best thing insurance defendants can do, in Gabriel's view, is be selective about which cases to try, by looking beyond actual damages to consider how a jury might view the plaintiff and their case.

"The ones that I think are most successful are those that do a really objective evaluation and where they constantly are questioning their objectivity, even without pressure," Gabriel said. "They are looking at, really, what is the damage that happened in a particular accident? Then they're evaluating the elements of the case. They then have to do an evaluation of their witnesses. Are they going to do a good job? Are they going to present well? Do they have experts who support their position?"

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'Human Decisions'

Holland & Knight partner Lee Teichner in Miami represents self-insured defendants, many of whom are accused of products liability, premises liability and auto negligence.

He agrees that many large verdicts stem from scenarios where, "somehow the plaintiff's lawyer has sort of rung that bell that the company did in fact put profits over safety or the wellbeing of the public."

But Teichner says that's based on perception, and rarely reality.

"As much as lawyers would like to paint corporations as machines, the reality is that there's a lot of humans making a lot of human decisions," Teichner said. "I don't know that anybody goes into work on any given day saying, 'Let's make a bad product or let's injure somebody today.' If you can get a jury to think about the decision as it's being made and the reason for which it's made, you have a much better chance of success."

Some corporate defendants, for instance, wind up in the hot seat over decisions made after careful health and safety analyses, because of some unpredictable result that was inconsistent with what the models suggested.

"Just because an accident happened and just because a big verdict happens, it doesn't mean the product's defective," Teichner said. "You can have lots of factors that factor into the result, like a really likable plaintiff or a really unlikable defendant or defendant representative."

While many verdicts and settlements prompt defendants to change their products or operating style, some don't. Even after one of Teichner's clients was hit with a large verdict over an accident several years ago, the company opted not to change its product's design, after concluding this was still the safest option.

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3. 'It's Got to Be Sincere'

Gabriel's team often conducts focus groups with jurors in personal injury cases, whom they ask, "What do you most want to hear from the defense?"

"Nine times out of 10, they will say, 'We just want to hear that expression of sympathy,'" Gabriel said. "And it's got to be sincere."

While insurance companies are often compassionate toward policy holders under normal circumstances, Gabriel's found "something happens in the litigation process" to change that.

"I don't know if it's because of aggressive plaintiff attorneys, but there's sometimes a shift that occurs where, in defending a case, they get really defensive and there becomes this adversarial mindset, which shifts the insurance company from, 'These are our insureds or this is a person who was injured by our insured, and we want to help them,' to 'They're suing us and they're accusing us of doing bad stuff, so now I'm angry at them and now they're greedy and overreaching,'" Gabriel said. "They sort of lose that compassion, or that ability to recognize that this person was genuinely hurt."

The clearest path to a large jury verdict, in Ashby's view, is brow-raising behavior from the defendant and a seemingly unsympathetic defense on the part of an insurance company.

"When you come into court in front of 12 regular folks, and you pretend like you did nothing wrong when it's clear to everyone that you did, that is a recipe for disaster," Ashby said. "But it happens every day and every week in the state of Georgia."

MP McQueen contributed to this report. 

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