Opinion: Don’t Gamble on the Litigation Lottery
By James Mahoney
Attorney-at-Law
This Opinion piece appears in the July 20 print edition of Transport Topics. Click here to subscribe today.
All motor carriers face financial risk when it comes to the litigation lottery and the chance a relatively insignificant claim could go out of control and become a mammoth verdict.
Big verdicts often are reviewed on appeal and are rarely paid in full, but they still have extraordinary advertising value for the winning lawyers. When large verdicts are publicized, the victorious legal team draws new clients who hope their marginal claims will be the next winning lottery ticket for financial security — possibly at your expense.
It’s important for defendant motor carriers to work closely with their attorneys and be aware that very often, it’s not the facts of a case that matter when jurors engage in processing information and making decisions — it’s the jury’s perception of those facts.
It’s a given that plaintiffs’ lawyers would rather put trucking companies on trial than their drivers, because it’s far easier to fault a large, faceless company than an individual.
If your company finds itself in that position, there are some important things you should know about jurors and their thinking processes.
Jurors tend to make decisions quickly, sometimes even as early as jury selection or the lawyers’ opening statements. And they may “hear” only the evidence that fits their preconceptions and supports the story they want to believe, disregarding or rejecting evidence that fails to fit their notion of what happened.
Here are some common preconceptions jurors have about big corporations in general and trucking in particular:
• Corporations are at the top of the power pyramid, with individuals — such as the jurors themselves — relatively powerless at the bottom.
• Trucking companies should be held to a higher standard of responsibility because they are familiar with the dangers of trucking and have special knowledge they should have used to prevent disaster.
• If a driver makes a mistake, it’s probably because the company failed to train him properly.
• Despite what the court says to the contrary, corporations don’t need to be treated as fairly as individuals.
• Big trucking companies “just don’t care.”
• Trucking companies can afford to pay, because they are backed by hefty insurance policies.
Although it’s up to the plaintiff to prove a carrier was negligent or caused significant loss, the hard truth is that juries always want corporations to prove themselves “innocent.” That being the case, a motor carrier defending itself should give in and accept jurors’ preconceptions of higher standards for trucking companies — and then set about changing their minds by presenting a strong case for the company’s safety standards and practices.
The trucking company can call upon loyal, hardworking employees happy to talk in court about the company’s safety programs, driver and company initiatives, and achievements. They can plead the carrier’s cause and explain that many people depend on the company for their livelihoods.
Your legal counsel also can work with you to streamline the case to take away some of the plaintiff’s lawyer’s advantages. For example:
• Avoid having the company named as a defendant. Jurors often will exonerate truckers in claims involving driver versus driver.
• Exclude irrelevant evidence.
• Remove one or more of your companies from the case. The Graves Amendment, for example, exempts pure leasing companies from lawsuits.
• Resist allowing your safety department to be put on trial. Your lawyer can keep the case about driver negligence and avoid putting your corporate safety department in the spotlight.
• Go on the offensive. If the plaintiff is exaggerating the claim or his lawyer is stretching the truth, jurors won’t mind if you go after the plaintiff, as long as it’s done properly and with respect.
• Challenge the trial court judge: The U.S. Supreme Court’s June 8 decision to uphold a company’s due process rights has directed a West Virginia judge to recuse himself because of “direct, personal, substantial pecuniary interest” in the status of a litigant, including the receipt of judicial election contributions. Use this case, Caperton v. A.T. Massey Coal Co., to fight for truckers’ due process rights to fair trials — and fair settlements.
Finally, jurors always believe there is insurance behind trucking companies. Your lawyer must underline the concept of right and wrong and remind the jury that the court specifically said not to consider insurance while deliberating.
Make sure your insurance company keeps your best interests at the forefront. Commit yourself to active participation and oversight of the insurer’s activities. Premium, collateral, retention levels — all depend on your loss history, and nothing spells trouble more than an insurer attempting to keep the settlement “within the retention” or to try to appease their reinsurance programs in managing settlements.
Use your insurer’s expertise. Your knowledgeable lawyer and many insurers have sophisticated means of mitigating claims and controlling settlement values, most of which need to happen early after a crash. Don’t just report and wait.
You and your insurer control the outcome of claims all the way to trial — and often beyond to appeal and subsequent years. Most plaintiffs’ lawyers are loath to spend years and excessive capital to finance a case without merit through trial. They can be a rational bunch when their own money is at stake, and that’s generally up to and just before jury selection.
Every day, trucking firms, their lawyers and their insurers fight claims that are without merit or exaggerated while upholding their reputations and integrity. We win trials all the time — you just don’t read about defense verdicts.
James Mahoney, a lawyer based in Phoenix, works with Astrigh Truck Risk Inc. to provide risk and litigation management services for trucking companies.
