TLA Feature Articles and Case Notes

Investigate crashes immediately and develop a case evaluation early.

Immediate response to crashes is essential to preserve evidence and develop an early understanding of the potential exposure. Some carriers and third-party providers have rapid response teams which are immediately dispatched to the scene of an accident to take photos, measurements, witness statements, etc. Many jurisdictions have laws regarding preservation of evidence which can significantly punish litigants who allow evidence to be destroyed—even when there is no claim pending.

More importantly, immediate investigation of a crash coupled with defense counsel involvement can yield an early evaluation of exposure. Serious consideration should be given to developing realistic settlement offers and attempting early mediation of cases involving fatalities, complex injuries, multiple parties or problematic facts for the motor carrier. Analysis has generally shown that the greater the time between the date of the crash and the date that suit is filed, the more expensive the case becomes to litigate and settle.34 Data also show that settling becomes more expensive as the case comes closer to trial.35

Pretrial preparation should involve experts, jury consultants, mock trials and focus groups where appropriate.

As shown above, the presence of a defense expert has a statistically significant impact on decreasing the amount of the verdict in small cases. The practitioners who were interviewed also spoke highly of the early use of mock trials/focus groups to develop a better understanding of how jurors might perceive the case and they also advocated for the use of jury consultants in picking a jury.36

Defense attorneys and insurers should clearly articulate to each other why it is or is not wort investing in these valuable pretrial preparation strategies.

Foster better cooperation in the industry.

It is generally agreed in the industry that the plaintiff’s bar has done a better job over the past several years creating an environment of cooperation. For example, there are many databases available only to plaintiff’s attorneys in which they openly share deposition transcripts, company documents and litigation documents for the benefit of all plaintiff’s attorneys.37 This cooperative environment has attracted more plaintiff’s attorneys to the business of truck litigation. Moreover, the coordination between plaintiff’s attorneys has allowed them to develop great competence in litigating truck cases. In fact, 73.3% of those interviewed by ATRI said that the plaintiff’s attorneys were doing a better job of arguing truck cases.38

Many defense attorneys have expressed frustration at the more “competitive” environment that exists amongst defense counsel. At times, defense counsel experience difficulty obtaining information and resources from insurance carriers and motor carriers when defending a case. Internal bureaucracy at insurers and motor carriers coupled with the fact that the motor carrier may not have a preexisting working relationship with defense counsel selected by their insurer can compromise the successful defense of a case.

This situation can be ameliorated within the trucking industry, and indeed many practitioners are already taking steps to create a more cooperative environment between carriers, insurers and the lawyers who defend truck cases.

Modernize trial strategy.

The plaintiff’s bar has made significant strides using the “reptile theory” to anger juries and generate large verdicts. Countering that strategy requires defendants to think differently. Suggested strategies involve: 1) working to strike an appropriate balance between logos and pathos—logic and emotion—when crafting trial themes; 2) offering an appropriate number as a suggested verdict; and, 3) “humanize” the driver and motor carrier so that they are more relatable to the jury.

Conclusion

Someday, technology may exist which prevents all truck accidents. Until that time, litigation will remain a feature of the trucking industry. Motor carriers should focus closely on the litigation factors that are within their control by implementing robust hiring, training and safety programs and documenting the success of those programs. Insurers should focus on providing appropriate resources to the beleaguered trucking industry by encouraging early and liberal use of pretrial assistance from experts, consultants, focus groups, etc. And defense counsel should immerse themselves in the industry and cooperate with each other in the development of bold new strategies for defending carriers and drivers at trial.

The data on small verdicts and settlements shows an important correlation between these strategies and lowering exposure.