For The Defense, December 2011 - DRI Today

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-
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