Legal System Abuse: Litigation strategies to level the playing field

Record date: 8/26/26
Air date: 10/21/26

In this final episode of the Claims in action: Driving better business outcomes podcast series, host Catherine Marciniak, Senior Vice President and Head of Property & Casualty Claims for Zurich U.S., speaks with Allen Kirsh, Head of Claims Judicial & Legislative Affairs for Zurich U.S. They explore how legal system abuse, rising litigation costs and an increase in nuclear verdicts are affecting businesses, insurers and consumers. Kirsh discusses key factors driving these trends, including evolving plaintiff tactics, eroding tort reform and third-party litigation funding. He also explains how strategies such as counter anchoring, collaboration among defense attorneys and education for claims professionals can help level the playing field. The conversation highlights Zurich’s work with industry collaborators to advocate for tort reform; and shares signs of progress in states including Florida and Georgia. Listeners will gain insight into how a more balanced legal environment can help control claim costs, support insurance affordability and drive better business outcomes.

In this miniseries, other episodes include:

9/9/26: Road to recovery: Workers’ Comp and Managed Care
9/23/26: Medical Bill Review: Verifying care, validating costs
10/7/26: Protecting claims integrity in an evolving fraud landscape

Guests:

Allen Kirsh
Head of Claims Judicial & Legislative Affairs
Zurich U.S.
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Allen Kirsh has served as the Head of Claims Judicial & Legislative Affairs since November 2021. He is responsible for the claims-led strategy to combat Social Inflation and related drivers including eroding tort reform. He regularly works with others in the insurance industry to build a coalition to work together on these and related issues. In his role, Allen also has responsibility for the Staff Legal organization and our overall management of external counsel.

Allen holds a bachelor’s degree in political science from the University of Illinois and a juris doctor degree from DePaul University School of Law. He is licensed to practice law in both Illinois and California.

Host:

Catherine Marciniak
SVP, Head of Property & Casualty Claims
Zurich U.S.
Connect on LinkedIn

Catherine Marciniak is the Senior Vice President, Head of Property & Casualty Claims for Zurich U.S., leading teams responsible for delivering exceptional claims outcomes while driving operational excellence across the organization. Based in Schaumburg, Illinois, she is recognized for her collaborative leadership style, commitment to developing talent, and ability to navigate complex business and claims challenges with clarity and purpose. She is known for building high-performing teams, fostering strong cross-functional partnerships, and bringing both resilience and authenticity to her leadership.

(PLEASE NOTE: This is an edited podcast transcript, capturing speakers with natural speech patterns that may include incomplete sentences and/or asides, grammatical errors, verbal shorthand and some statements that may be less clear in print.)

EPISODE TRANSCRIPT:

ALLEN KIRSH:

The U.S. Chamber has a group called the Institute for Legal Reform. And so they're the ones who really drove this study. And what they found was that it was about $4,200 per U.S. household. So that means the effect of legal system abuse costs every household an additional $4,200 per year.

CATHERINE MARCINIAK:

Welcome to The Future of Risk, presented by Zurich U.S., where we explore the changing risk and resilience landscape and share insights on challenges facing businesses today.

I'm Catherine Marciniak, Zurich U.S. Head of Property & Casualty Claims. This episode continues our Claims in Action miniseries focused on driving better business outcomes. Today, we are looking at the litigation environment and its impacts that go beyond the insurance industry. They actually can lead to higher insurance premiums for businesses, a strain on the economy and growing financial impacts on everyday consumers. I'm joined today by Allen Kirsh, who leads Zurich Claims Judicial & Legislative Affairs team in the U.S. Welcome, Allen.

KIRSH:

Hi, Cathy. Thanks for having me.

Inside Zurich’s Claims Judicial & Legislative Affairs team

MARCINIAK:

All right. So, you're the Head of Claims Judicial & Legislative Affairs for Zurich U.S. Can you actually describe for us what that entails and the work that your team does every day?

KIRSH:

Sure. I can acknowledge that's sort of a unique title. It's unique at Zurich and I would say pretty unique in the industry. Zurich stood up this position about five years ago to really specifically address the issues we were seeing around social inflation or legal system abuse, which it is now generally referred to. And what my team does is really act like a social inflation task force. We review all the data, all the information, really analyze all these verdicts and larger verdicts that we've seen. So, we can dive into what is actually causing all this, what are the drivers and then from there, work to really level the playing field, because that's what we're talking about here. I'm not looking for an advantage, but how do we level the playing field with the claimants that we see out there? So that's the main part of what my team does.

I also have oversight with our staff legal organization as well as litigation management, which is really how we manage all of our external law firms. So when it comes to the defense counsel that we utilize to defend our insureds in court, I have a good level of oversight with those groups as well, which is helpful because, you know, we're talking about litigation, we're talking about, you know, how do we counter some of the tactics that are out there. So, it gives me a really good opportunity to affect change, not only from a claim professional level, but also from a defense attorney level as well.

MARCINIAK:

And I would assume that the staff legal offices that we have across the U.S. provide a lot of intel and insight to the balance of your team so that they know what we're facing out there and they can kind of gauge some of their energy toward those specific insights that are being shared.

KIRSH:

Yeah, that's a great point. And in fact, because we're in every major litigation jurisdiction in the U.S., they provide a tremendous amount of insight in terms of what's happening on the ground, boots on the ground, if you will, and what they're seeing in terms of new tactics. Because they handle so much of our litigation, they really are, to your point, are at the forefront of what's happening there. So providing that information to me and my team really helps us formulate how we want to respond.

MARCINIAK:

Yeah. And just so, uh, you refresh my memory, because I know I just read this, how many staff legal offices do we have across the U.S.?

KIRSH:

Yeah, there's about 40 offices across the U.S. There's about 300 attorneys, paralegals, legal secretaries. These are, you know, full law offices. They're run like law offices. They represent only Zurich insureds and they take their obligation and their ethical responsibility to represent their client very seriously. It's really a fantastic organization. Really, I think of it as like a partner level law firm, so - yeah. You know, we don't hire people out of law school. These are experienced litigators who we have defending Zurich insureds.

Understanding today's complex litigation environment

MARCINIAK:

Awesome. Well, I want to dig in a little bit and get your perspective on, you know, what is today's litigation environment in the U.S.? What does that look like?

KIRSH:

Yeah, interesting dynamic. I mean, it certainly is more complex than it's been in years past. Just even from a discovery perspective, I think with evidence and information being held digitally, it does cause more complexity in the system. And the bottom line is we're seeing a lot of rising costs. There's a lot more of this discovery process that's happening as a result of that. And so, the cost of litigation is obviously increasing. We've seen, in this space, nuclear verdicts, so typically defined as $10 million and above. We have seen a steady increase in the number of those verdicts, which is concerning. And even more so when you bucket that out, when you look at $100 million and more verdicts, that is growing even exponentially.

The latest data is for 2025 and it showed a 40% increase in verdicts in excess of $100 million.¹ Wow. Now that's a pretty broad piece of litigation that's out there, but it does give you a sense of sort of what juries are doing and what's happening out there. And I would be remiss if I didn't mention the outside influence of investing in litigation and how that's really resulting in more complexity, longer litigation times and longer shelf life. The issue about who's really controlling the litigation, which traditionally was the parties who control whether this gets resolved, whether it gets tried and now you have outside influence of funders being involved in that. So that complicates the situation even more.

The four key drivers behind increasing nuclear verdicts

MARCINIAK:

Yeah, you have other interested parties now that weren't a part of litigation previously. That's a big deal today, right? I mean, what are the impacts that you're seeing and who's it having the biggest effect on? I would assume our customers, our insureds.

KIRSH:

That's true. It is. They've seen rates go up. A lot of them are having more self-insured retentions and higher deductibles as a result of that, trying to maintain the cost of their insurance program. But that means they're taking on more of the risks. So to your point, affecting them directly. But, you know, beyond that, it's really all of us, the consumers. The bottom line is that, you know, with increased litigation costs, increased claim costs and the increase in the number of nuclear verdicts, it's just raising the cost of goods and services across all industries, insurance being one of them. But in all the businesses that we insure, they're seeing increased costs because of this. And so what they do in turn is raise their rates and raise their costs and raise the prices on their goods and services. So in the end, it ends up really affecting all of us.

MARCINIAK:

We’ve talked about the impacts that this has on businesses and, you know, the economy as a whole. But what about the regular consumer? What impacts does that have?

KIRSH:

Sure. Well, interestingly, the U.S. Chamber of Commerce has done a lot of research on this in terms of a tort tax, if you will. And that is just what general overall payments are like per household when we look at legal system abuse. So the U.S. Chamber has a group called the Institute for Legal Reform. And so they're the ones who really drove this study. And what they found was that it was about $4,200 per U.S. household. So that means the effect of legal system abuse costs every household an additional $4,200 per year. So a significant impact when we're talking so much these days about affordability.

MARCINIAK:

I'm shocked by that number. What do you think is driving this and when did you kind of see that shift? I mean, what's causing these high jury awards, the nuclear and thermonuclear verdicts that continue to rise? What's driving that and when did things shift to more of those types of verdicts?

KIRSH:

Fantastic question. There's basically around four different drivers that we've identified. One is really changing attitudes we've seen in jurors. They have a different perspective, I think, than they had years ago in terms of their role and what they're there to do. We have found that some of these younger jurors are more interested in maybe righting a perceived wrong and doing it with a larger verdict, as opposed to truly looking at the issues in the case and assessing what the actual damages are. So there's a piece of it that's that, for sure. But it's interesting you say the shift because the plaintiff's bar, in the tactics they use, there was a shift, probably about 12 years ago or so with what's called the reptile theory.

And we won't get into too many specifics, but essentially the number of seminars and webinars existed on really teaching this next level of how to try this case from a plaintiff's perspective to maximize the jury verdict. So, I would say when it comes to a shift, it was definitely the beginning of that, but a number of tactics the plaintiff's bar uses, including anchoring the jury for large values, the amount of advertising we see. I think anybody listening to this podcast —

MARCINIAK:

Yes, everywhere.

KIRSH:

It's true. It's just everywhere. On every bus, on every billboard, on, you know, every ad we see on television. So the amount of advertising clearly has an influence on, you know, the value of the case, the expectation maybe from potential plaintiffs to what juries think they're supposed to do in these kinds of cases.

So that's definitely a big driver. You know, overall, we've seen eroding tort reform over the years. I think we've made some headway over the last few years, which, you know, we can talk about if you want. But the eroding tort reform and the changing of the laws expanding liability definitely had an effect on what we're seeing in terms of larger verdicts. And then I know we already mentioned the third-party litigation funding, but that's part of it as well.

Working together on tort reform

MARCINIAK:

I do want to touch on the tort reform a little bit and just some of the work your team specifically does, but we have other resources at Zurich U.S. that also help to drive and influence tort reform. Can you talk a little bit about that?

KIRSH:

Sure. So, when this started about five years ago, we started working with our colleagues in Government & Regulatory Relations, a legal system abuse coalition. And this was an industry-wide coalition. And the thought behind this was actually kind of simple. We looked around, we knew that, you know, other carriers, the broker communities, our customers, everybody was involved in some level on tort reform and advocating for more fairness in the law. And there was a couple of groups they were trying to coordinate, but they didn't really cover everybody. So we said, "Let's just get everyone together." And we all have at times, different interests and different focus, but there's enough there that we can agree on, that we can work together and, you know, really advocate for change.

And so, you know, we started this coalition, gosh, about five years ago. And, and the idea is it's not Zurich; this is an industry-wide one. So we hosted the first symposium back in '22, and then after that Liberty stepped up and they hosted one. Travelers, Chubb did it last year. Zurich actually is taking it back this year for the fifth year. We are hosting it here, I'm sitting in Chicago, on October 27th, 28th. And what's great about this is it's grown. I think the first one we had about 50 or 60 people and now there's, you know, six, 700 people that are on this coalition list, if you will. So we've been able to really, I think, rally everyone and get them focused on certain areas where we need to focus on.

So using that as one of the resources we have and one of the tools has really, I think, been great from an industry perspective. To address those other drivers, we do a number of other things. The plaintiff tactics, for example. Yeah. We've been doing this defense counsel summit twice a year, which is really getting all of our defense attorneys together. I mentioned this before; the plaintiff's bar does a great job of being organized and sharing information. And quite frankly, we on the defense side weren't that good. So we kind of took a page out of their playbook, to be honest, and said, "Let's get our defense attorneys together and start talking." And we've done this twice a year for the last five years and we've covered a number of topics, from storytelling to counter anchoring, to very specific tactics our attorneys can use and be aware of to counteract a lot of the effects of what we're seeing from the plaintiff's bar.

What is counter anchoring in litigation?

MARCINIAK:

So you mentioned counter anchoring. Can you just share what that actually means?

KIRSH:

Sure. So, you know, anchoring to begin with is one of the plaintiff tactics that I mentioned. And anchoring is where the plaintiff's attorney at the very beginning of the case begins to suggest very, quite frankly, large amounts of money for the value of the case. So, before the jury even really knows anything about it, the attorneys start interjecting these large values in terms of what they think the case is worth and what the value and what the verdict should be. So counter anchoring is really where the defense attorney offers their position on what they think an appropriate number would be for the case. But you can't just give a number, you have to specifically explain why that is. So, you know, we are big proponents of the defense giving that counter anchor. Even if the liability is contested, that's okay. The data is that even if you're contesting liability, you can still appropriately suggest a counter value of the case and give those reasons without necessarily, you know, giving up on liability.

So, we've seen people do that and there's been a defense verdict, for example. So counter anchoring is really quite important, so you don't leave the plaintiff's value of the case just hanging out there, but you have the defense's version of what they think the case is appropriately valued at.

MARCINIAK:

And what have you seen? Is there an average range between the two anchors or does it vary based on jurisdiction by case matter?

KIRSH:

Well, it certainly varies by jurisdiction. In fact, some jurisdictions don't allow suggesting values in the case. Okay. So some don't even allow anchoring. Yeah. So it definitely varies by jurisdiction and by case too. If you're going to give a value, you have to be able to support that by the evidence and say why it should be one way or the other. Depending on where the evidence is and the arguments that are made, they have to support that value that you're giving.

MARCINIAK:

Okay. Great. Thanks for the education.

KIRSH:

We basically use everything we can at our disposal in order to educate and not just our defense attorneys, but our claim professionals as well. Yes. So, all of your teams, Kathy, getting them, you know, up to speed on sort of what the drivers are, what to look for and how to really, you know, proactively handle a claim to get it resolved and get it resolved for the right amount.

Is tort reform working?

MARCINIAK:

Yeah, and I'll say the partnership between our claims adjusting teams and your team is just so strong. And I just always value the education and the insight sharing that your team provides back to ours, because you're right, it helps us to be on the lookout for things that we might not know to be on the lookout for yet. So, a really awesome partnership here. So, okay, we talked about all the things that your team is doing, you know, with tort reform, with plaintiff bar tactics. Are any of these strategies really working? What successes have you seen as a result?

KIRSH:

In 2022, our big focus was Florida, because Florida at the time, you know, ATRA, the American Tort Reform Association puts out a list of what they call judicial hell holes and Florida had been number one for a number of years. So I think everyone agreed that Florida was a state where we really needed to focus on because it was really the most difficult when it came to legal system abuse and, quite frankly, ripe for some change. And so, you know, really everybody focused on, on Florida and Florida passed, I would say, really historic tort reform back in 2023 and now here we are in 26 and so we've had the benefit of hindsight and looking at what that's done to the insurance market in Florida and by any objective measure, it has improved the situation.

Citizens, which is their insurer of last resort there, was taking on more and more policies because other carriers were either pulling out of Florida or just it got too expensive. So, seeing the number of policies at Citizens go down 30 or 40% in that few years is really a significant change. We've seen rates flat or even down for the first time in years in Florida. There's a number of other metrics as well that really indicate that the tort reform is working to make insurance more affordable, to create some consistency. I mean, Florida had the highest rate of property, litigation, claim litigation and I think that's down also, like, 30 or 40% from its high back in the 2022 years. So, you know, seeing that, I think it's inspired some other, governors, for sure.

I mean, New York Governor Hochul has recently passed some reforms, in the auto space, which we're really excited about and that's a jurisdiction that we were always told would probably never change, but we never stopped. After Florida, Georgia was the next one to really recognize that there was an insurance crisis in their jurisdictions and so they really needed to do something. And so they looked at what Florida did back in '25, passed again historic tort reform bill that addressed all of the things we talked about in terms of drivers and some of the specific issues, especially around expanding litigation. So, Georgia too, it's a lot of their loss took effect at the beginning of this year, so we're watching them closely.

Certainly, there's some initial indications that it really is helping to level that insurance market in Georgia as well. So I think there's some really good examples of where this really does work to create an insurance environment that's fair and equitable to both sides.

MARCINIAK:

Yeah. There's definitely some fruits from your labor that have come out of that. So I appreciate you sharing. And, you know, who would've known that <laugh> the insurance litigation landscape could be so exciting with words like hellhole and reptile theories and thermal nuclear vote verdicts? It's very exciting and a lot more interesting than I think folks would assume at the surface. So, um, I just want to thank you for helping explain the litigation landscape today and its impacts on claim costs and how that can really have an impact on the economy. You know, your team, the CJLA, does really important work for the industry and certainly for Zurich as a whole. And I'm glad that we had a chance to highlight that story here today. So thank you again for joining us.

KIRSH:

Thank you for the opportunity. You know I'm passionate about this and I do enjoy discussing it with anyone who will listen. So I'm glad that, that you were here to ask those questions. So thanks, Cathy. I appreciate it.

MARCINIAK:

You bet. And thank you for listening to our Claims in action: Driving better business outcomes series. If you like the show, leave a comment or review wherever you get your favorite podcast, or drop us a note at media@zurichna.com. This has been Future of Risk, presented by Zurich U.S.

¹ U.S. Chamber of Commerce Institute for Legal Reform