Leverage Is Key to Winning Accident Litigation, Lawyer Says
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MINNEAPOLIS — A winning strategy for a trucking company in any accident litigation, whether it goes to trial or is settled out of court, most often centers on gaining leverage on a plaintiff’s attorney early on, according to a leading trucking attorney.
“Leverage is what is the key to these cases,” Doug Marcello, a partner in the Lancaster, Pa., law firm of Saxton & Stump, told trucking executives attending a recent conference. “It’s not about truth, justice and the American way anymore. It’s about those folks on the billboards trying to get an angle on you, get a hook into you, and be able to leverage it against you to get a large settlement or nuclear verdict. That’s where it’s at.”
Marcello, also chief legal officer for Oregon-based Bluewire, spoke April 4 at a session of American Trucking Associations’ 2023 Safety, Security, Human Resources National Conference & Exhibition.
“We see ourselves doing things over and over in regard to these cases,” Marcello said. “There’s an accident. The insurance companies sit back and wait. Eventually somebody files suit. We go through discovery, depositions, exchange documents. And then somebody writes a check. We’ve got a settlement.”
In the end, roughly 95% of all trucking accident cases end in settlement, according to Marcello.
He added, “The result of that has been a series of verdicts, nuclear verdicts, inflation. It is the lack of aggressiveness, a lack of developing leverages, and it’s put us in this situation. We need to change.”
In his talk, Marcello said there are four important phases to accident litigation in which a trucking company might be the target of a nuclear jury award or reaches an out-of-court settlement.
Marcello identified the four phases as the time prior to the accident, response to the accident, the period prior to a lawsuit filing by a plaintiff’s attorney, and the litigation itself after the lawsuit is filed.
The best way for a trucking company to gain leverage before an accident happens is to document areas ranging from its safety program and driver training to deployment of safety technologies and even preparing drivers and company officials for how to testify in depositions and trials. Plaintiff’s attorneys tend to not only focus on an accident, but dig into a carrier’s safety records.
Marcello said when he takes a case the first thing he does is write his closing argument. He looks at the cards he’s dealt, how he can find the evidence to bolster the closing argument. He doesn’t leave anything to chance. After the accident he will look for video and other evidence, may hire an accident investigator or accident reconstructionist, even consider being the first to file a lawsuit, rather than wait for the plaintiff’s attorney to be the first to strike.
“Ninety percent of the information and leverage you get is defined by the first three phases,” he said. “The die is cast, by the time the suit is filed. It is what happens before that is going to give us leverage. It is what has been done, or has not been done throughout those first three phases that’s going to drive us.”
Marcello pointed to a study by the American Transportation Research Institute on the rise and impact of small verdicts and settlements, those that total $500,000 and less. He said it’s important to determine the true value of a lawsuit before a plaintiff’s attorney has time to add costs by sending clients to doctors.
He calls it “death by a thousand cuts.”
“What we’re looking at is a trucking industry insurance crisis,” Marcello added. “The key is the total cost of risk. The cost of risk used to be the cost of company insurance premiums. Now the premium is just the starting place.”
The rest of the lawsuit risk is paying for the deductions to keep the premium manageable, according to Marcello.
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