For The Defense, December 2011 - DRI Today

Trucking Law
aging juror responsiveness. Let’s take attitudes
toward corporations as an example.
Suppose you ask, “Does anyone here have a
negative view of corporations?” Jurors who
have negative views may be less likely to
raise their hands since the question implies
someone only rarely would have such an
opinion. What about the following question:
“By a show of hands, how many of
Jurors are more
likely to identify and
sympathize with the people
in the car than with the
driver of the truck.
you have a negative view of corporations?”
Here, the question suggests to prospective
jurors that people commonly have these
negative views, and you, the juror, don’t
have to feel shy telling us that you do, too.
Here are some additional questions you
should consider asking in a trucking case:
• I represent Mr. [driver] and [trucking
company], and I recognize that many
people have negative opinions of truck
drivers or trucking companies because
of the experiences they have had or
because of what they have seen in media
reports.
• How many of you have ever been
intimidated or scared by a truck on
the road?
• How many of you, by a show of hands,
have ever witnessed or been involved
in an accident with a truck?
• In an accident lawsuit involving an individual
and a truck driver, how many of
you would start out in favor of the individual,
even slightly, before hearing the
evidence in the case? It is okay if you feel
this way, but I just need to know. By a
show of hands, how many of you would
be inclined to start a bit in favor of the
individual driver?
• This case involves an individual who is
alleging that he or she suffered injury in
a vehicular accident with a truck driver.
Some people believe truck drivers are
62 ■ For The Defense ■ December 2011
professional drivers and because they
are professionals, they should be held
to higher driving standards than a regular
driver. Others believe truck drivers
are only human and should be held to
the same standards as regular automobile
drivers. What I would like to know
is how many of you feel the first way—
that truck drivers are professionals and
therefore should be held to higher driving
standards? And how many of you
feel strongly about that?
After you have the information necessary
to exercise your peremptory strikes
effectively, and to make a strong case for
challenges for cause, you can also inculcate
your jurors against bias and obtain their
public commitment not to reach conclusions
about your case until they hear all the
evidence. You should also encourage jurors
to call attention to bias in the deliberation
room when other jurors discuss their own
negative experiences with truckers or make
generalizations about trucking companies.
The following comments and questions are
examples of ways to indoctrinate jurors
against bias during voir dire. Please note
that some courts may preclude these questions,
which are rhetorical in nature and
are not designed to elicit candid responses
from the jurors.
• [Trucking company] is a company that
is responsible for delivering freight to
stores, manufacturing plants and anyone
else who needs something transported
from one place to another.
• Will any of you hold your experiences
with other trucks on other days
against my clients in this case today?
• Mr. [driver] is a professional truck
driver who was driving a truck to make
a pickup on [date].
• Mr. [driver] lives in [place]. Does anyone
here know him?
• Trucking companies like [trucking company]
are made up of people, and they
deserve the same justice that we would
give to an individual. In fact, the law
will instruct you that you must treat
individuals and corporations the same.
Will everyone here be able to do that—
to treat [trucking company] the same
as you would an individual, such as
[plaintiff]?
• In the jury deliberation room, your fellow
jurors may bring up their own expe-
riences with big trucks or truck drivers
they have encountered on the road. Will
you be able to say to your fellow jurors
“we are only supposed to be basing our
decision on the evidence in this case—
not our personal experiences?”
Educating the Public to Reduce Bias
The trucking industry and its advocates
have taken steps to spread the word on
how important trucks are to our country
and how professional truckers are the
safest group of drivers on our roads. The
American Trucking Association’s “Good
Things: Trucks Bring It” program is a great
start, but much more is needed. Drivers
who reach safety milestones should be
lauded publicly, not just internally. Anecdotal
evidence of trucking’s positive contributions
to society is abundant but poorly
reported. Everyone in the trucking industry,
as well as everyone closely associated
with the trucking industry, should actively
seek opportunities to talk and write about
trucking’s overall safety record and the
high standards to which commercial drivers
are held.
If those of us who depend on the trucking
industry to feed our families don’t
advocate for its continued vitality and survival,
then no one else will.
Conclusion
Trucking companies and truck drivers are
pariahs in the courtroom. The general public
perceives the industry as far less safe
than it really is. The media sensationalizes
reports of catastrophic accidents while
ignoring countless everyday acts of courtesy
and safety. Stories of truck drivers’
rude and reckless behavior are much more
likely to be repeated than stories of their
kindness and courtesy. This emboldens
people who interact with trucks to assert
liability claims against trucking companies
and truck drivers, who start with
two strikes against them in defending liability
claims. Those who manage, defend,
and resolve those claims must be properly
prepared and equipped to evaluate and
counteract bias against truckers. How the
trucking industry and its lawyers deal with
bias, both in the short term and in the long
term, is an essential element of successful
liability risk management.