After the verdict: what remains possible in a tougher judgment preservation market
There was a period when a large plaintiff-side verdict could create an almost immediate conversation about judgment preservation insurance. A claimant had won. The defendant was appealing. The question was how much of the award could be locked in, and on what terms.
That market still exists, but it is no longer the same market.
Recent appellate losses have changed the mood. The Fifth Circuit’s reversal of the $1.6 billion judgment in BMC Software v IBM remains the case many people point to, not only because of the size of the award, but because of what it showed: even a major trial win can disappear on appeal. That kind of result inevitably affects an insurance market whose job is to stand behind appellate risk.
The patent market has had its own reminder. In EcoFactor v Google, the Federal Circuit, sitting en banc, vacated a jury award of just over $20 million and ordered a new trial on damages. The issue was not infringement. It was the foundation for the damages case. The patentee’s expert had relied on settlement licences that, in the court’s view, did not support the per-unit royalty advanced to the jury. The broader message was clear enough: damages evidence in patent cases is going to be scrutinised closely, and a Rule 702 problem may not be treated simply as a matter of weight for the jury.
For plaintiffs holding strong damages verdicts, that is not a reason to assume insurance is unavailable. It is a reason to approach the market differently.
The judgment preservation market has taken a battering from recent losses. Some carriers have repriced, some have materially reduced their line sizes, and some have exited the market altogether. That should not be mistaken for an absence of capacity. There is still appetite for strong plaintiff-side verdicts, but the market now expects a more disciplined submission: a clear trial record, a defensible damages case, and a realistic assessment of the appeal risk. In other words, the product remains available, but not for every judgment and not on the assumptions that may have applied a few years ago.
That distinction matters. There are still plaintiffs, law firms and investors with valuable judgments who can use insurance to create certainty, support monetisation, protect contingent-fee economics, or reduce the pressure to settle at an avoidable discount. The cases that still attract serious insurance interest tend to have a few things in common: a strong trial record, a damages case that can be explained without overreaching, appeal issues that are bounded rather than existential, and a realistic presentation of what could go wrong.
That last point is important. In the current market, the worst approach is to pretend the appeal risk is minimal. Insurers do not need a sales pitch. They need a credible appellate analysis. A good submission should identify the issues the appellant will run, explain why they should not succeed, and be honest about which points could trouble the court. The stronger the judgment, the more important it is to show that strength through the record rather than through adjectives.
Timing also matters. A post-verdict insurance process is usually easier before the appeal has fully hardened. Once appellate briefs are filed, the issues are crystallised, the parties are locked into their positions, and insurers have less room to underwrite the case on a broader view of the record. Early engagement does not guarantee cover, but it does give the market a better opportunity to assess the risk properly.
For patent claimants in particular, the lesson from EcoFactor is not that damages verdicts are uninsurable. It is that damages must be underwritten with care. Comparable licences, apportionment, expert methodology and the link between the evidence and the royalty advanced at trial are no longer background issues. They are central to the insurance analysis. A verdict may be large, but if the damages theory is fragile, the market will see that quickly.
Equally, there are cases where the opposite is true. A defendant may be appealing because the number is substantial, not because the judgment is especially vulnerable. Where liability is well supported, damages are grounded in the record, and the appellate issues are narrow, insurance can still play a valuable role. It can give the claimant a protected floor. It can help a law firm manage contingent-fee exposure. It can support financing against the judgment. And it can change the settlement dynamic by reducing the pressure created by appellate delay.
That is the conversation TheJudge Group is having with clients now. Not “can every verdict be insured?” They cannot. Not “has the market gone away?” It has not. The real question is whether a particular judgment can be presented to insurers in a way that reflects both its value and its risk.
The judgment preservation market has taken a battering. That is undeniable. But markets do not vanish simply because they become more selective. For plaintiffs holding strong damages verdicts, there are still options. The key is to treat the insurance process as an appellate underwriting exercise, not a post-verdict formality.
If you have secured a significant judgment and are considering how to protect it through appeal, TheJudge Group can help assess whether the risk is insurable, how best to present it to the market, and what structures may still be available.
KEY CONTACTS
Matthew Amey, Director
Robert Warner, Director