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Time was ticking for insurance lawyer Steven Horn. He needed to reach a claims adjuster for an urgent decision about a case, but the adjuster wasn’t returning his calls and soon it would be too late. The crucial question: Could Horn send a letter by Federal Express to meet a deadline? He had to ask, because cost-cutting rules by the carrier, Princeton Insurance Co., required outside counsel to ask permission before sending express mail, Horn recalls. “It was mind-boggling,” he says. “It was bad enough to have such a rule, but then you couldn’t get them to respond.” Those frustrating days of working for carriers are over, Horn says. He has joined that cadre of longtime defense lawyers who have switched to plaintiffs’ work amid complaints that insurers have become more stingy and less willing to give lawyers latitude to make litigation decisions. It’s not a new story, but Horn’s case may be special — for his defection after 15 years on the defense side breaks with a family tradition more than a half-century old. His grandfather, former New Jersey Appellate Division Judge Herbert Horn, represented insurance companies when he founded what became, by 1990, the 10th-largest firm in the state, Atlantic City’s Horn, Kaplan, Goldberg, Gorny & Daniels. Steven Horn’s father Leonard — who later became the president of the Miss America Pageant — was known in the firm as an aggressive, the-client-is-always-right practitioner. Most of those clients were insurance companies whose business the middle Horn cultivated. That a scion of that family is now championing the causes of such clients as a professional gambler who slipped on a barroom floor — as Horn did in a trial two weeks ago — would be like a Taft taking a high post in the Democratic Party. “This is definitely a break with family tradition,” Horn says. It’s also a case study of what goes through the mind of a disgruntled insurance defense lawyer, what difficulties are in store for those who make the transition and whether the loss of a steady income is worth the gamble of contingency cases. For Horn, it looks like it is. The jury in that gambler’s slip-and-fall awarded $538,000. Horn says dissatisfaction with carriers’ litigation policies, notably Princeton’s, was behind his desire to switch. Karen Meyers, Princeton’s communications manager, won’t comment on the express mail story or on any other measures to limit costs, beyond saying, “We do have a responsibility to policyholders and we make sure their claims are managed appropriately.” Horn says one of his biggest headaches was nonresponsiveness among claims managers. “I had one who never returned my calls.” Then there was disallowance of bills. He recalls, for example, working on a case involving the Affidavit of Merit Statute when he noticed a decision-service alert on a ruling exactly on point. He had the decision faxed to him at a cost of $18, but the client disallowed the expense on grounds that such research is part of the firm’s overhead. This was just a couple of years ago, when Horn was in Linwood’s Paarz, Master, Koernig, Crammer, O’Brien, Bishop & Horn, a firm full of former Horn Kaplan lawyers that did much of Princeton’s work in southern New Jersey. Worse than the nitpicking, Horn says, was the feeling that he had to sublimate his honest evaluation of cases — particularly those he felt should be settled — if claims representatives took different views. He says in one case in which a defendant surgeon testified “horribly,” he recommended that the carrier accept a high-low settlement in which the plaintiff would be guaranteed $250,000 in the event of a no-cause, but any award would be capped at $950,000. The carrier would accept a low of only $50,000, the deal fell apart and the jury awarded $7 million. The case did eventually settle for the $1 million policy limits, but Horn says it was decisions like those that didn’t sit well. “I would get in trouble because I would tell the truth,” he says. Things reached a low point in 1996, he says, when he was replaced in a chiropractor malpractice case because he championed a settlement, he says. “The insurance companies were bullying the lawyers,” he says. Horn says he started doing some plaintiffs’ personal injury work when he was still at Paarz Master, but that the complete break came in September 2000, when he went to work as an associate for Henry Broome Jr., who heads a plaintiff’s personal injury firm in Northfield. This year, he became an associate in Toms River, N.J.’s Berry, Kagan, Sahradnik, Kotzas & Riordan, headed by former state assemblyman Franklin Berry Jr. It’s a general practice, but the firm’s best-known clients are municipal bodies and school boards in Ocean County. Partner Kevin Riordan and Horn do most of the personal injury work and under Horn’s arrangement with the firm, he receives a salary, plus a percent of the fees his cases generate. The firm also is spending thousands of dollars to advertise plaintiffs’ work. Like many former insurance defense lawyers, Horn says lawyers who have worked for carriers have an advantage over the average personal injury lawyer. Veteran insurance defense practitioners have vastly more trial experience than typical plaintiffs’ lawyers, because the goal of most plaintiffs’ lawyers is to avoid trial, he says. That gives the convert confidence to take problematic cases that are likely to end up before a jury. The best example of that, Horn says, is a case he took for a driver who was seriously injured after rear-ending another car. Personal injury protection insurance covered both drivers’ medical bills, but in an attempt to recover for his client’s pain and suffering, Horn took on the daunting task of trying to prove that the driver of the car in front was responsible for the accident. He did well. The jury found the other driver 60 percent liable, which means Horn can tap into the other driver’s $50,000 liability policy and perhaps into an underinsured motorist’s policy worth up to $250,000. Horn says 2001 may be his best year ever, thanks to an Atlantic County jury’s Aug. 21 verdict in Hodge v. Hunter, ATL-L-1436-99. That’s the case of the Pleasantville, N.J., gambler who slipped on an entrance ramp to Sam’s Bar & Grill in Atlantic City on the morning of July 22, 1998, and suffered painful tendon injuries. The defense suggested that Alvito Hodge’s accident wasn’t caused by a soapy floor surface, but by the plaintiff’s tiredness after a night in the casinos. Even so, the jury awarded $425,000 for pain and suffering and $112,998 for medical expenses. Prejudgment interest will bring the recovery to $614,000. Horn would get 25 percent of the fee under the arrangement with Broome, who originated the case. A couple of successful plaintiffs’ lawyers in the malpractice field say a lawyer with extensive trial experience — the kind Horn talks about having — definitely has an advantage in representing plaintiffs. “Insurers get to know the attorneys who have been in court and will take a harder line with those who haven’t,” says Ronald Goldfaden of Chatham, N.J.’s Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte. Armand Leone, of Glen Rock, N.J.’s Britcher, Leone & Roth, says former defense lawyers have the advantage of knowing how particular carriers operate. “Clearly, they would have insights into the carriers’ inner workings as to how they evaluate cases,” he says. Douglas Hanna of Wall, N.J.’s Hanna & Anderson, another former defense lawyer who says he tried more than 100 cases for insurance companies, says, “I know the claims adjusters and how the whole process works.” And being a former defense lawyer gives him better rapport with potential settling lawyers on the other side. “You get more respect because you’ve walked a mile in their shoes,” he says. Horn says he also benefits from knowing the kinds of mistakes plaintiffs’ lawyers can make. Chief among them, he says, is not providing every shred of evidence as early in the case as possible, even evidence that seems bad for the plaintiff. Defense lawyers who find holes in the plaintiff’s case get a boost of confidence. But when defense lawyers see that the plaintiff’s lawyer did a thorough enough job to know all the flaws and is still willing to go ahead, it makes them nervous and more willing to settle, he says. This is particularly important in accident cases where there may be a prior condition. If the plaintiff doesn’t provide all the data about such conditions and the defense lawyer finds it, “there’s going to be a loss of credibility and distrust.” The toughest part of switching to plaintiffs’ work is the loss of cash flow, Horn says. Leone adds that besides having to fund contingency cases, plaintiffs’ lawyers often have to be quicker than carrier-backed defense lawyers when it comes to paying experts. For Horn, though, all these problems are outweighed by representing what he calls “real people” — people like Hodge. “We were hugging and crying when the verdict came in. I feel better with real people with real problems.” And when he gets a potential client whose case he doesn’t want, all he has to do is say, no thanks. “When you work for insurance companies you have to kiss their butts,” he says.

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