For The Defense, December 2011 - DRI Today

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Trucking Law the likely attitudes of your jurors. High unemployment, economic hardship, and excessive reliance on government subsidies all spell trouble for civil defendants in general and trucking industry defendants especially. While of course, there are exceptions, individuals who have recently suffered significant health issues, economic setbacks, or feel little control over their It is no coincidence that some of the worst venues for trucking liability claims have nothing in common except for having highvolume crossroads and a lot of truck traffic. lives generally would be more inclined to favor an injured plaintiff as opposed to a truck driver employed with a trucking corporation. Our message of hard- working people who perform an essential service to society plays much better to jurors who value personal productivity versus those who don’t. If the claim’s exposure justifies the cost of hiring a litigation consultant, in-depth telephonic polling will identify how much bias exists against the trucking industry in your venue and can also ascertain which specific juror attitudes are related to verdict preference in your case. Such findings will help you identify which jurors to strike peremptorily should you take the case to trial. Research into past jury verdicts in a venue will tell you not only whether damages awards tend to be conservative or liberal, but it may also differentiate between truck accidents and other motor vehicle accidents. If the sample size is large enough, a pattern of bias or of impartiality may appear. Look at a map. If major interstate highways crisscross a venue or if it is a manufacturing hub, the high volume of truck 60 ■ For The Defense ■ December 2011 traffic more likely than not will affect the attitudes of your jurors. It is no coincidence that some of the worst venues for trucking liability claims have nothing in common except for having highvolume crossroads and a lot of truck traffic. Consider the Circumstances of Your Accident When an accident happens between a driver of a Toyota Camry and a driver of a Ford Taurus, it does not create a perception of unfairness or illicit irrational fears. Jurors probably would not identify with either driver to an extent that would prejudice the other. In contrast, a collision between a Chevrolet Malibu and a Freightliner Cascadia just doesn’t seem fair to the unfortunate occupants of the Chevy. Jurors are more likely to identify and sympathize with the people in the car than with the driver of the truck. Some motor vehicle accidents occur regardless of the size of the vehicles involved. However, in some accidents, the relative size of the vehicles may appear to be a causative factor. For example, with a lane-change accident in which the rear trailer tandems struck a small car, the fact that the truck driver him- or herself was about 60 feet away from the area of contact may have affected the accident. Similarly, a 3,000-pound car can maneuver much better than a 78,000-pound tanker and a judge and jury will probably hold the truck driver to a higher standard than the car driver. If admissible evidence suggests that your truck driver was not in compliance with hours of service regulations, he or she had not attended mandatory safety and training sessions, the trucking company had inadequate safety records or safety programs, or the truck’s brakes were out of adjustment, the door to unfair bias against your trucking company stands wide open. Consider the Characteristics of Your Company and Driver Companies such as UPS or FedEx have a distinct advantage in litigation over companies that don’t have a direct and positive impact on the public. As a general rule, everyone looks forward to receiving a package, whether it is a gift or something ordered online. The companies that deliver those packages have developed images that invoke positive feelings in jury pools. Those positive feelings are likely to carry over into a courtroom. In contrast, a waste hauler or an oil company is not likely to invoke such positive feelings in potential jurors, regardless of its actual value to society or safety record. All else being equal, a company with a good reputation for safety, responsible management, and credible corporate representatives will probably fare better than a company without those characteristics. Truck drivers are, at least for the present, human beings. Each has his or her own unique set of characteristics. Some characteristics are more appealing than others. It is critically important to meet with your driver face-to-face early. Is he or she likeable? Defensive? What are his or her strengths and weaknesses as a party to a lawsuit? Can you significantly improve the driver’s testimony and demeanor with preparation? Consider the Characteristics of Your Claimant It is not uncommon for jurors in close cases to make a decision based on liking one party more than the other or viewing one party as much more deserving than the other. If a plaintiff makes a good appearance and seems credible, or if he or she is an “eggshell plaintiff,” jurors are more likely to identify or sympathize with him or her, and you must take that into account when evaluating a case. If a plaintiff lacks credibility, or if jurors could perceive him or her as undeserving of a significant damages award, you should adjust your evaluation of his or her claim accordingly. Be Proactive with a Post-accident Company Plan of Action Most trucking companies and insurers have well- established procedures for responding to major accidents. The primary goals of those procedures are to obtain evaluation information and to preserve the evidence necessary to defend a claim. An immediate accident response also presents an opportunity to minimize the negative bias associated with the trucking industry in general and the company in particular. An effective post- accident response plan should include sensitive, personal contact with those affected by the accident. The response should
demonstrate the trucking company’s moral principles and compassion for all injured parties, and, if appropriate, to bystanders, law enforcement, media, and the public. In conjunction with the investigative aspect of an accident response plan, a trucking company should train one or more corporate representatives to respond to the needs of potential claimants. When an accident meets certain pre- defined criteria, a representative should arrive at the accident site as soon as possible to offer assistance, with no strings attached, to those affected by an accident. A trucking company should help with immediate needs such as transportation, food, clothing, hotel, funeral costs, and grief counseling, among other needs. Regardless of a company’s liability, a compassionate accident response shows injured parties and their families that the company cares about their well- being. This can have a very positive effect on settlement negotiations, and it may even head off a claim entirely. Often, you can help a company avoid the anger that triggers litigation. Even if an accident later turns into a lawsuit and reaches the trial stage, jurors will see a company with a human face and compassion. Dealing with Bias During Trial Our system of justice relies on fairness and impartiality to protect the rights of our citizens. For the past two centuries, we have frequently given lip service to reducing the effects of prejudice and ensuring that the people who appear in our courts are judged solely by their actions. We have made strides to eliminate race, gender, religion, politics, and wealth as factors in courtroom decisions. However, neither trucking companies nor truck drivers qualify as a “suspect class,” and nothing in the Bill of Rights prevents judges or jurors from openly or even worse, secretly, judging them with hostility. Armed with awareness that bias does exist and that your trucking company likely will encounter it, you can take a number of steps to mitigate or attenuate unwarranted prejudice in a civil trial. Use Pretrial Motions Depending on local rules of practice and evidence, pretrial motions can sometimes effectively nullify bias by asking a court to prohibit any reference to irrelevant information such as which company a truck driver worked for at the time of an accident and which company will indemnify the driver for damages assessed against him or her. Usually, a trucking company’s vicarious liability is not in dispute and is not relevant to liability or damages issues. In a fair world, a lawsuit would involve Person vs. Person, with the vicarious liability to be fixed as a matter of law. Use motions in limine to ask the court to prohibit references to facts that have nothing to do with the issues of liability or damages in that particular case. Whether a truck driver had a DUI twelve years ago and whether a trucking company had a higher than average out of service rate three years ago are no more relevant to liability than the fact that crashes more frequently involve red cars than blue cars. One of the basic rules of evidence in every jurisdiction is that irrelevant evidence is not admissible. Know Your Audience by Doing Jury Research If you have the financial resources to conduct research with juror eligible surrogates, you can use the findings to fine-tune your trial themes and to craft your best trial “story.” Jurors come to a courthouse with attitudes regarding trucking companies and truck drivers, and jury research, when done properly, will identify those attitudes. It will also identify which arguments work and which don’t and which values, such as justice, hard work, and fairness, are most important to jurors. With the benefit of research, counsel for the defense can create a compelling trial story that takes into consideration jurors’ preexisting attitudes and incorporates the values most important to them. In addition, if your goal is to settle a case, ask your trial consultant to put together a mediation report of the jury research findings. During mediation or direct negotiation, you can use that report to make better arguments about the strengths, weaknesses, and the relative value of a case with a claimant and his or her lawyer. Select Your Trial Representative Wisely Post-trial juror interviews have established a strong correlation between ratings of a corporate representative and verdict preference. Jurors who have positive impressions of a corporate witness are usually pro- defense in their verdict preference. Those with negative reactions to a corporate representative often find in favor of the plaintiff(s). While we cannot establish that in all cases a corporate representative caused a juror to vote one way or another, certainly a corporate representative can make or break your case. Jurors expect a trucking company representative to be very knowledgeable about the company’s hiring practices, safety records, ongoing safety programs, and its drivers’ history on and off the road. Jurors also expect corporate witnesses to be likeable and to deliver direct answers without being evasive or defensive. In determining your trial representative, ensure you have someone who is willing to do the homework to learn about the company’s history and its practices inside- and- out. Also ensure you have someone who, at least with preparation, can retain a consistent and appropriate demeanor even during the most difficult cross- examination. Use Voir Dire to Identify and Mitigate Bias In most courts, the trial lawyer’s only opportunity to speak directly with jurors comes during jury selection. In any trial, the most important goals of voir dire are to learn about the prospective jurors and to determine which jurors are least able to judge the case objectively. In a trucking case, questions should focus on identifying jurors who hold strong negative attitudes toward truck drivers, trucking companies, and corporations in general. Questions should also identify individuals who strongly oppose caps on damages in lawsuits or who are excessively sympathetic toward injured people. Although you want to encourage jurors to respond freely with their opinions to all voir dire questions, because attitude questions have an implied “right” or “wrong” answer, you must even more importantly create an environment in which jurors feel at ease to tell you how they really feel when you question them about their attitudes. The best way to do this is by asking your questions in a way that presumes bias exists and by remembering that simple word choices often do make a huge difference in encour- For The Defense ■ December 2011 ■ 61
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DRI ToDay— The NexT 50 yeaRs 2011
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