As the pace of medical professional liability (MPL) mega verdicts shows no signs of slowing down, the MPL defense bar is reaching an inflection point. The experienced lawyers who have represented carriers for more than 25 years are nearing retirement age, creating space for the next generation of MPL lawyers to make their mark.
Significant MPL mega verdicts have already been recorded in the first five months of 2025, including a $40 million stroke misdiagnosis verdict in Georgia, a $29 million Wisconsin birth injury verdict, and a $20.6 million Oregon career-ending surgery verdict. While the number of overall MPL claims is falling, the number and size of mega verdicts shows no signs of abating, which translates to an ongoing need for skilled defense representation.
As with many other issues within the MPL universe, there are reasons for optimism—as well as reasons for concern—about the emergence of the next generation of defense bar attorneys. While some senior MPL industry stakeholders note areas where younger defense bar attorneys are defending cases in court and receiving the training they need, others describe how rising salaries, increasing use of generative AI, and flat defense rates are hobbling the transition.
To get a sense of where the industry transition to the next generation of defense lawyers stands, Inside Medical Liability Online spoke to representatives of carriers and the defense bar industry, including:
- J. Thaddeus Eckenrode, Eckenrode Bauman, St. Louis, MO
- Jennifer Kope, JD, CPCU, CPHRM, director of claims, professional liability, BETA Healthcare Group, Roseville, CA
- Naomi Olds, attorney, Scanlan Griffiths + Aldridge, Boise, ID
- Scott Salter, attorney, Starnes Davis Florie LLP, Birmingham, AL
Current Landscape
As the number of MPL claims continues to decline, fewer cases go to trial. And with the stakes growing as mega verdicts rise, the cases that go to trial mean that carriers usually want the most experienced lawyers trying those cases. This situation has created a difficult dynamic for both carriers and law firms. Everyone knows that those less experienced need opportunities to gain experience, but there are fewer opportunities for those lawyers to gain that experience.
Despite this situation, carriers and firms are finding ways to help younger and/or less experienced lawyers gain the experience they need to take a step forward in their professional development. “At BETA, we’ve really been actively trying to push the idea forward that we are out here to support the next generation and are taking some affirmative steps toward it while ensuring that our members and insureds are on board,” said Kope. “We are working with everyone to try to ensure that the next generation of attorneys is ready to take the next step so that the pipeline gets filled. That involves lawyers trying cases, and also attorneys doing motion work or depositions.”
BETA recently used a younger attorney as first chair in a MPL trial, which was that lawyer’s first time as first chair. The experience was a success, Kope said, and more evidence to her that the landscape for next generation attorneys is positive.
Salter believes that the MPL industry needs to take significant steps forward in terms of the development of next generation younger attorneys. “Like many others, I feel that we are behind in the development of younger attorneys as a whole,” he said. “Our firm is lucky because we have a good group of 15 or 16 attorneys in their 40s, 50s, and 60s who primarily do MPL work. We are also fortunate in that the primary carrier we work with is gracious in allowing us to have younger attorneys attend and observe depositions and go to hearings with us, working out some type of fee arrangement so that we can have a deep bench.”
“But as I look around in our region, in Alabama, Tennessee, Georgia, and Kentucky, I think, though, that we are the exception to the rule,” he continued. “Most firms we see have maybe two or three primary lawyers in their 60s and 70s handling the MPL work. Carriers want positive results, so there’s pressure for those same primary lawyers to continue to handle the cases. A lot of carriers don’t want to pay for a second lawyer to work a case with the senior lawyer or to pay for younger lawyers to get the experience they need, which benefits the carriers and the firms in the long run.”
Eckenrode agrees, saying, “What’s going to happen is that the MPL industry will get hammered in 10 years on cases with big verdicts down the road because there won’t be anyone who really knows how to try a case. The plaintiff’s bar is becoming emboldened because they have the help and the financial ability that allows them to work their cases. I understand that the insurance industry has to watch their bottom line, but they also have to have some foresight.”
Postponing Retirement
There aren’t any hard statistics about MPL attorney retirements. Anecdotal evidence suggests that attorneys may be postponing retirement, but whether that’s because they want to keep working or have to keep working isn’t evident.
“I know some veteran attorneys who could retire if they want to, but they love what they do and so don’t want to pass the torch,” Kope said. “In these situations, we need to show them that they can continue to litigate and welcome in the next generation to handle certain cases and expand their teams. So, it is incumbent upon the carriers to say, we are not looking to take away your caseload, instead, we’re asking you to support the growth of your team.”
Options to support both experienced and next generation attorneys in situations like these include having the veteran attorney act as second chair and a younger attorney first chair. Or, if the trial is high stakes, having the veteran attorney act as first chair and the younger attorney as second chair.
Veteran attorneys may be concerned that their retirement may result in a loss of work for their firm, especially in firms they founded or are in a senior business development position. Carriers need to work with lawyers and firms in these situations to assure them that they won’t experience a loss of current and future work, Kope said.
Eckenrode related that he has spoken to a lot of lawyers who would like to retire but who aren’t in a position to retire due to the financial interests they have in their firm and their commitment to their clients. “I’m sure there are many lawyers like me who are going to put off retirement as they try to bring in that next generation of lawyers,” he said. “But it’s not like even if we did get someone today that you could retire tomorrow. There’s a learning, curve, at least a several years long learning curve before you could get someone up to speed and retire.”
Salter observes other firms where older attorneys are in their 60s and even 70s and who would like to retire, but can’t because of the quantity of the MPL defense work they are dealing with and the lack of qualified younger attorneys to take over the work. “They are also worried about the carrier potentially pulling work and feel pressure over that,” he added. “I believe there is a deep hole in many firms. I think in the next five years we are going to see an extremely large number of these attorneys in their 60s retire. The life of a trial attorney is grueling, and trials are harder than they were in the past.”
Associate Mentoring and Preparation
To be appropriately prepared to defend MPL cases, associates need mentoring and training so that they are qualified to defend those cases. Obviously, not all of this preparation can happen at once, so associates should be trained methodically in the steps necessary to succeed as an MPL defense attorney.
“My firm has really prioritized the mentorship side of things, including offering responsibility and opening opportunities and advocating on my behalf, and the behalf of other associates,” Olds shared. “They’ve advocated to the carriers they work with in terms of giving us opportunities. At my firm, the wheels are turning and there is the actual ability for younger attorneys to take over.”
Not every firm is as proactive, Olds continued. “I’ve gotten feedback from my peers that this isn’t the case at other firms, which is concerning since the very future of the MPL industry depends on the ability to bring new attorneys up,” she said. For mentorship to work for the associates, they need to be taught how to interact with the end client, how to interact with the carrier, how to interact with expert witnesses, and how to develop an individual presence in the courtroom. Law firms need to develop intentional training programs to move associates along defined steps leading to the outcome of them being able to independently represent carriers in all the steps involved in an MPL case, she said.
At Starnes Davis Florie LLP, the practice of round tabling cases among their partners gives associates the chance to hear strategies, discussions about motions in limine, (a pretrial motion in which lawyers ask judges to rule on whether specific evidence or arguments should be admitted into the trial), concerns about lawyers on the other side of cases, and trial preparation in general, said Salter. “By doing this, we are hopefully giving them some insight into what the trial process is like and what things we’re preparing for,” he added. “By observing these, they are engaging in some critical thinking about being a lawyer and how to handle cases.”
Other ways that associates can gain experience include attending one-day mock trials designed to test legal strategy, witness preparation, and case presentation before an actual trial. Associates can also attend trials, oral arguments, and motions in limine. Firms can enroll their associates in trial academies such as ABA/ABOTA National Trial Academy, the International Association of Defense Counsel Annual Trial Academy, and more.
In Idaho, pre-litigation screening is a requirement for MPL cases before suits can be filed. “These are definitely lower in formality and while the stakes feel very high, in reality you are making a presentation to a panel and are not in the same room with the plaintiffs,” Olds said. “It’s more inquisitorial than adversarial and I’ve had a chance to do a few of these, which has been a really interesting experience that has helped me prepare for a larger role as I gain experience.”
Younger lawyers eager for experience need to put themselves forward in areas that they are interested in, said Kope. “If someone’s interested in going to trial, if someone really wants to be the next leader of the team at their particular firm, just as much as we need to support them as an industry, hopefully their leaders within their firm are supporting them,” she continued. “Working on succession planning, and helping each individual attorney find their niche, helps firms develop a strong team, which helps the industry as a whole.”
Courtroom Experience
To mature into trial attorneys who can try MPL cases, associates must gain litigation experience. As the number of claims has declined, fewer cases are going to trial. In addition, the COVID-19 pandemic closed courtrooms and backlogged cases, interrupting the progress of criminal and civil cases. Because virtually every case that goes to trial is a high-profile case with at least $1 million at stake, many carriers want experienced trial lawyers trying those cases.
“I remember a case about 10 years ago where I wanted one of my associates to try a case because I felt it was a pretty low risk case,” said Eckenrode. “But when I asked the carrier, they wouldn’t consent because they felt like it was too big of a risk. I understand that, but most carriers feel the same way. And in this situation, it is very difficult for associates to gain experience because you can’t get carriers to let associates try cases unless they have trial experience. If they do gain experience, once they have experience, they go somewhere else because the money is better.”
At BETA Healthcare Group, law firms are encouraged to include their associates in their trial preparation so that they can gain the experience they need to progress in their training and step into leadership positions when the time comes.
Salter noted an encouraging trend of judges in Jefferson County in Birmingham, AL, placing an emphasis on involvement of younger attorneys in court. “It used to be that you might get cut off or a judge would only let one lawyer argue,” he said. “The bench has worked with us by saying we want you to bring the younger lawyers with the older lawyers. If the younger lawyer misses something or leaves something out, they let the older lawyer add it in.”
“We’ve got to find a way to make this happen within the MPL space,” he continued. “Whether it is finding some type of alternative fee arrangement for cases or a blended rate that allows associates and partners to attend things, carriers and law firms have to come together, otherwise we are not going to have on the defense side lawyers who are truly qualified to prepare and try these cases.”
Barriers to Success
Other barriers to elevating the next generation of MPL defense bar attorneys include:
- Insurance Defense Billable Rates: Insurance defense billable rates are low, not just in MPL defense but across auto insurance, workers compensation, and more, especially in comparison to commercial litigation, said Eckenrode. “This has a trickle-down effect in terms of what I can pay my associates,” he added. “Law school grads want the big bucks, and they cannot get that in insurance defense. They will go to a plaintiff’s firm or a big corporate litigation firm or a transactional firm because the money is better, and they have loans.”
- Law School Enrollment Decline: Although the number of law school students has risen in the last 70 years—from just over 20,000 in 1965 to 40,000 in 2025—peak enrollment occurred in 2010 at 52,404 and by 2025 declined to 39,665. “Here in Alabama, the University of Alabama Law school enrollment is down by about 25% from 10 to 15 years ago,” said Salter. “Out of a graduating class of about 120 students, probably 50 to 60 of them have no desire to go into litigation. Then, if you want students in the top third of their class who are interested in litigation, you’ve got probably 20 or 25 students that we are competing for with the other top firms in our region.”
- Few Applicants for Open Positions: “10 years ago when we had an opening in our office for an attorney, I might get 30 resumes,” said Eckenrode. “Now when I have an opening, I might get one. A factor in this drop is that insurance defense work isn’t considered sexy. This is a place where we are dropping the ball as an industry in terms of not reaching out to law students and explaining what we do so that they might develop an interest in it.”
- Potential Consolidation of Defense Bar Firms: Both the MPL industry and the healthcare industry have experienced a considerable amount of consolidation; that trend may spread to the MPL defense bar. “The risks are so great of not having defense counsel, not having a choice of defense counsel,” Olds noted. “The consolidation of firms is a huge potential risk and a very real threat.”
- Revenue Loss in Use of Generative AI: The use of generative AI in legal discovery has the potential to create a revenue headache for MPL firms in the use of expensive technology to cut discovery time. “I’ve heard of situations where carriers—not necessarily MPL carriers—require defense firms to use $4,000 a month AI technology for discovery, which is not only a large expense, but which also cuts out $2,000 to $3,000 a month in otherwise billable associate time,” said Eckenrode. “This is not something that is sustainable for firms our size.”
Industry Works Towards Solutions
Despite the barriers, both the MPL carriers and defense attorneys are committed to finding solutions to create paths to success for the next generation of defense bar attorneys. Olds believes that carriers and defense firms, intentionally working together, can ensure that healthcare providers receive the representation they need in the future. “This is a fixable crisis,” she said. “It has to be done together, and it has to be intentional.”
Salter agreed, saying, “The people who really need the next generation of defense bar lawyers to emerge and succeed are medical professionals. They are the everyday heroes in our society for what they do, and they deserve the best representation they can get.”