For The Defense, December 2011 - DRI Today

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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 experiences 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.
Trucking Law Welcome to the United States By Jenifer L. Kienle and William B. Springer Time will only tell how many Mexican companies will have the resources to participate and whether those that do will demonstrate more than simply being “fit, willing, and able.” Mexico as a Partner Under the 2011 Trucking MOU On March 3, 2011, the White House declared the end of an impasse between Mexico and the United States about Mexican trucking activities in the United States. After a meeting between Mexican President Felipe Calderon and U.S. President Barack Obama in Washington, D.C., the White House announced that the United States would lift the decades- long ban prohibiting Mexican trucking companies from operating within the United States on the condition that Mexico dropped tariffs on $2.4 billion worth of U.S. pork, cheese, corn, and fruit imports. See Mark Drajem & Jens Erik Gould, Obama, Calderon Lift U.S. Ban on Mexican Trucks, Retaliatory Quotas, Bloomberg (Mar. 3, 2011), http://www.bloomberg.com/news/2011- 03-03/mexico-u-s-are-said-to-reach-agreementon-end-to-border-trucking-dispute.html. The dispute between the two countries had been active for over 15 years, waxing and waning in intensity due to various political and economic developments but always present. The dispute had been particularly rankling to Mexico, which felt that the dispute represented a blatant refusal on the part of the United States to honor parts of the North American Free Trade Agreement (NAFTA), as evidenced by the sever- ity of the retaliatory tariffs. The end of the impasse, however, may signify the conclusion of over 15 years of often bitter interactions with our southern neighbors and heated political wrangling at home related to cross- border trucking. After the announcement in March, a subsequent agreement became final on July 6, 2011, when the Department of Transportation and the Secretaria de Comunicaciones y Transportes of the United Mexican States released a Memorandum of Understanding (MOU) regarding cross- border trucking services, which will allow Mexican trucking companies to engage in cross- border shipping. While this may not have the appearance of a momentous development to those not well versed in the contentious history leading up to the 2011 MOU, the realization of relatively unfettered although closely regulated cross- border trucking between the United States and Mexico would indeed represent a significant change in United States- Mexico border policy. ■ Jenifer L. Kienle is a partner in the Orange County, California, office of Lewis Brisbois Bisgaard & Smith, a national firm with offices in 17 cities. Ms. Kienle defends personal injury and property damage cases related to transportation and construction and is an OSHA appeal specialist who is active in DRI, TIDA, and the Associated Builders and Contractors. William B. Springer is an associate in Ms. Kienle’s Transportation and General Liability group and is experienced in litigating complex cases. For The Defense ■ December 2011 ■ 63
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