Accident Litigation Expert: Beware the Nuclear Settlement
[Stay on top of transportation news: Get TTNews in your inbox.]
WASHINGTON — While nuclear verdicts in accident litigation are obviously a major concern in the trucking industry, it’s actually the nuclear settlements that litigation expert Steve Wood said are even more problematic.
“What doesn’t get talked about enough is the idea that carriers are settling cases for an amount that is much more than they need to,” said Wood, a senior litigation consultant with Courtroom Sciences, an Irving, Texas-based firm that advises law firms and legal departments on litigation matters. “That’s really the danger in this industry that should be focused on — in addition to nuclear verdicts.”
Wood spoke on the matter during an Oct. 4 session at American Trucking Associations’ Safety Management Council’s 2023 conference.
“Although nuclear verdicts are the ones that get in the paper, the truth of the matter is that only about 3% of lawsuits go to trial,” he said. “Nuclear verdicts actually are exceedingly rare.”
Still, concerns over nuclear verdicts are causing motor carriers to settle out of court for a heavy amount of money. “This is the world we live in,” Wood said.
While generally defined as jury awards of $10 million or larger, Wood defines a nuclear verdict as any that is larger than expected. “If you have a case that should be worth $500,000, and it comes in at $5 million, that’s a nuclear verdict,” he said.
But whether an accident lawsuit goes to court or gets settled in the offices of large law firms, there are a number of actions a motor carrier can take to help their chances for a better outcome, according to Wood.
Sometimes the damage for a reasonable settlement or trial verdict occurs at the video deposition level, especially when drivers or safety managers give their testimony prior to mediation, settlements or trial, he said. That’s where plaintiff attorneys are very aggressively focusing on hot-button words like “risk, safety, danger, harm, always, never, must, should” to get witnesses to agree to a “heightened duty of safety.”
“The reason they do that is because it’s the old adage that ‘It’s not what you say, it’s how you say it,’ ” Wood said.
We had a great turnout at ATA’s #SMCPolicy23 this week! SMC members gathered to dive deep into the industry’s priority topics including The Mongoose Method, Oral-Drug Testing, Commercial Driver Safety, and more. Let’s continue to drive the discussions to keep our roads safe. 🚛 pic.twitter.com/bEnfUzmviJ — American Trucking (@TRUCKINGdotORG) October 4, 2023
They’re trying get carrier witnesses nervous, angry, flustered and looking defensive, he said. They want these witnesses to appear evasive, emotional and uncomfortable, he said.
“They love to show those responses to a jury,” Wood said. “Bad depositions can lead to large verdicts when a lawsuit goes to trial.”
Another problem can simply be what’s found on a carrier’s website.
“Your corporate websites are ripe for the taking,” Wood said. “Assume that in any litigation, plaintiff counsel is going right to your company website and are looking for anything they can use. His hit list is certainly on your website.”
Count on a plaintiff attorney asking your safety manager questions based on such company statements as “safety is our top priority or safety is our No. 1 priority.”
If asked by a plaintiff attorney if safety is your top priority, a safety manager or top executive who says anything but yes is trapped, Wood stressed.
“They can say, ‘Well, let’s pull up your website. Doesn’t your website say this?’ Now you’re stuck,” Wood said.
“Eliminate all the safety language from your website. It’s 100% unnecessary,” he said. “There’s no reason for it, and it opens you up for attack. At the end of the day, we know that people want to operate safely. You don’t have to tell them that.”
Wood said to instead focus website language on such subjects as company history and customer service, for example.
Want more news? Listen to today's daily briefing above or go here for more info
A carrier’s goal overall in a trial should be to convince juries that reasonable monetary awards are all that’s needed to make a victim whole. Be aware that plaintiff attorneys will try to convince juries to inflict punitive damages requiring companies to make changes, and send a message to the industry that all carriers — not just the one on trial — must change their behavior.
The bottom line with plaintiff attorneys is ‘Show me your money,’ ” Wood said. “They look at you like an ATM machine. They hate the trucking industry because they’re the big bad company that everybody is afraid of. So I’m going to hit them for quick, easy money.”
