Trucking defense attorney Doug Marcello joins Bill Kanasky, Jr., Ph.D. to discuss the latest in trucking litigation. Doug provides a “state of the union” update on where the industry has been, where it is now, and where it needs to go. They address recent tort reform efforts in states like Georgia, Louisiana, and South Carolina, and the importance of leveraging those reforms effectively. An important point that Doug and Bill highlight is the continued lack of collaboration among defense attorneys compared to the highly coordinated plaintiff’s bar, which continues to share strategies nationwide.
Doug and Bill emphasize the need for defense teams to be more proactive, from filing first to secure favorable jurisdictions, to preparing witnesses early, and by using focus groups early to test case themes, witness credibility, and damages strategies before mediation. They highlight the benefits of repeated testing and retesting to refine approaches, rather than relying on gut instincts or past case experience.
The discussion also covers the importance of simple, compelling storytelling in openings and closings, counter-anchoring damages with reasonable and well-justified numbers, and making strategic concessions to build credibility with jurors. Doug and Bill stress that winning doesn’t always mean a defense verdict — reasonable settlements and mitigation of liability and damages can be victories when approached the right way.
Finally, they analyze the Texas Supreme Court’s Warner decision, which reaffirmed the necessity of proximate cause in negligence cases and rejected the idea that simply being present at the scene is enough for liability. Both agree that the ruling provides clarity and is a positive outcome for the trucking industry.
Full Episode Transcript
[00:14] Bill
Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I am Dr. Bill Kanasky joined with my uh many time guest. Yes, Doug Marcello. And uh as you can see, we are in, we’re not in the podcast studio. We are we are offsite. Uh one of our clients was very generous uh with their studio and we’ve been here doing some filming uh all day about some uh uh issues in the transportation uh litigation area which you are an expert in. So, we figured we’d use this time to record a podcast. Thanks for coming on the show here.
[00:49] Doug
Thanks for having me. Great, great and honored for the opportunity.
[00:55] Bill
Now, now you’ve done something I don’t think anybody else uh in the industry could possibly do. I think your speaking schedule is more busy than mine. Please tell the audience. I mean, I look, I see you on LinkedIn and it’s like every week this guy’s on an airplane giving a speech. Talk to us about uh the the speaking tour and how that’s going.
[01:12] Doug
Uh greatly appreciate the opportunity to do it. And you know, Bill, I’m not just an attorney. I’m an only child, so I appreciate all the attention I can get. So, uh, last year, uh, I think it, uh, I totaled up 37. My wife thinks it’s more than that considering the time I’m gone. Uh, but a lot of it is between, uh, you know, state associations, uh, insurance companies, uh, with regard to captives, uh, and also a number of presentations to, uh, corporations for their management employees. Uh, honored to do it and and it’s a a great way to me to give back to an industry that’s been very generous to me.
[01:49] Bill
Yeah. And how long have you been in the industry now?
[01:53] Doug
Uh I’ve done only trucking work for uh close to 30 years now, if not a little more.
[01:59] Bill
Wow. Yeah. Um well, yeah, it’s I see you out on the speaking tour and um information is king, right? We have to get information out and get everybody on the same page as you know. Uh in the transportation area, that’s a very active area uh for litigation. Uh maybe even uh the number one ranking uh at this point. Uh, I think any any company that has a transportation component is going to have a a target on your back. Now, during your travels, are are you getting to any Coldplay concerts or is this something that you’re now avoiding?
[02:26] Doug
Yeah. No Coldplay concerts, ,o Jumbotrons, no Kiss Cams. Uh, no.
[02:38] Bill
That’s good. I think you may see some litigation out of that. You never know.
[02:43] Doug
Yeah.
[02:45] Bill
Okay, we’ll jump off of that topic. Um, so, um, so you know, we’re pretty much in the middle of 2025. Uh, you and I for we’ve spoken together, we write articles, we do podcasts. Um, I think it’s time for a good like state of the union address. Uh, Mr. Marcello on kind of where we were, where we are, and kind of where we need to go. Now, we know that the plaintiffs’ bar, you know, hats off to him. Um, a relentless uh, group. Uh, we’ve seen some changes in the defense. I would think some positive uh changes both in the transportation industry as a whole from the defense bar as far as making some more attempts to collaborate and share information. Um but you’ve been you’ve been traveling you’ve been talking to everybody like what’s the word from out in the field again where we’ve been where we are and kind of where do we need to go.
[03:34] Doug
Legislatively there’s been some positive vibes with regard to tort reform. Georgia, Louisiana in particular, also to an extent South Carolina. We’ve got other jurisdictions out there. The the next question is taking advantage and using that and leveraging that as defense attorneys on there. Too early to say right now. We’ve seen the reform a couple years ago in Florida. Also saw the reform a couple years ago in Texas. So, we’ll see where that goes. Uh with regard to the tactics, I still see limited to any co uh collaboration between defense attorneys. I it is yeah it’s a challenge. It’s a notion of uh fear of losing clients or you know interaction on those, I don’t know. Uh and you know it seems to me that as you said hats off to the plaintiff attorney they’re sharing the information and we see it uh around the country after it’s shared as opposed to on our side it’s very insular. We’re just not getting the word out on that, and I think that’s one of the the crucial things that we have. Uh also we are as defense attorneys uh uh by our very nature almost risk averse. You know, we work by the hour. Uh it’s not a matter of percentage and as a result of that I see a kind of uh reluctance if not retrenchment in doing anything out of the norm uh to go above and beyond on that and I think that’s a challenge for a lot of them. You know the the uh you know one of the things we’ve talked about before is if there’s an issue in jurisdiction and uh we have an argument that my client’s not at fault, we’ve suffered damages, we’ll file suit first to lock the jurisdiction in, keep it out of a judicial hell hole.
[05:24] Bill
Yeah.
[05:26] Doug
Uh highly criticized by other defense attorneys. Uh it wasn’t their idea.
[05:31] Bill
Yeah.
[05:32] Doug
Uh it’s different. Uh let me think about it. Um and it’s been highly successful uh both in you know reducing the amount of settlements uh by multiples on that uh even recently cases being dismissed uh because they they just don’t see the value in the lower jurisdictions or they’re not going to try to leverage it in the lower jurisdictions that they may try to in a hellhole that they know it’s worth multiples of that. So those are the type of things I think we need to look at and try to expand as an industry on it particularly on the defense side where we’re not going. Uh and I think you run into it as well in terms of you know using uh your resources for witness preparation. You know a lot of I get push back from attorneys going well well that’s our job that’s what we do. Yeah. And and you know the whole thing is as you always say rewiring the mind. Yeah. Um you know I I’m not I don’t see how you you’re not the guy to do that or or woman to do it, you know, and and kind of a resistance to that. So.
[06:39] Bill
Yeah, that’s I think it’s always going to be there. I I’ve I I think over time the word has gotten out that um it it it it works and even I’ve worked with veteran you know 30 sometimes 40-year attorneys that resisted it at first but now you know see the value which is a which is a big thing now. Win them over, got to win them over. That’s the yeah, yeah. Well and and again uh you know what’s the result, Bill, that that their clients time and time again are getting knocked down on these things. It’s undeniable.
[07:12] Doug
Yeah, at this point. And the flip side is also uh the insurance industry willing to expend the on the expense side before depositions. Yeah. Before the concrete dries because that notion of uh hey Bill, we got a trial in a couple weeks. Could you come in and help get our people ready?
[07:30] Bill
Can’t. It makes me nuts. Yeah. Yeah. It’s like what were you thinking? And then oh by the way, you know, the driver’s dep was terrible or the safety director was awful at that position. And I’m thinking, wh why why why I’ve been saying this for how many years?
And now the good thing um the the frequency of being put in that situation is dropping, right? Which is really really good. And so, we’re seeing um on the defense side, I think we’re seeing a lot more proactivity, which helps. Good. Um, funny enough, I’ i’ve had uh some uh defense attorneys kind of, haha, say, uh, well, now that you’re prepping the witness early, if they if they bomb, I can blame you. Wink wink. And I’m like, fine. Like, I’ll I’m happy to take that responsibility. But, um, but the key is I mean, here’s the thing, Doug. If it’s it’s all about the depositions, right? It’s all about this discovery process. And if you do well during the depositions, it’s it’s going to be a game changer for trying to get the case resolved. You want to get these cases resolved. And again, if you go into the mediation or negotiation process and you know, you’re down by five touchdowns, I mean, what does that do for like what is your leverage as defense counsel?
[08:57] Doug
It’s it’s not. You you’ve you’ve just got to unless there’s other facts out there or something with regard to the plaintiff, the damages, the injuries, uh it’s just damage control at that point. It’s just a matter of negotiating the numbers on that. And the whole notion of like well you know Bill’s here. It’s not you know there’s somebody to blame if the deposition’s coming. I it you know I’ve always taken the theory, Bill, since before I even did trucking cases. It’s my case. Yeah. And you know what? I’m responsible. And by God, no one’s going to screw it up. I’ve had a number of times I’ve had defendants I have not put on the stands. Years ago, I I’ve done one Med Mal case in my life before I did trucking and the doctor was so bad. We got to the courthouse that day. I said, I’m not I’m not putting you on the stand. And that’s pretty bad. It was it was very bad. And we won the trial. Uh, and the plaintiff attorney said she thought that was the best strategy that we had was not put them on the you know. But but it’s it’s I’ve always had that mentality. No one’s screwing up my case, you know. So, uh, I I think that’s what needs to be looked at. It’s a team effort. What’s going to win the case? And sometimes it’s uh uh uh some of us subjugating our ego for the betterment of the cause on this. And I think that’s what that’s what needs to be done.
[10:09] Bill
Yeah. Let’s define a win. I think that’s something that needs to be looked at um again and again and again because um sometimes your goal is mitigation, right? Right. It’s uh it’s not going to be a defense verdict. I mean, everybody would love that, but sometimes that’s not going to be possible. And how you’re assessing these cases, I think, is important. You know, the other thing that we’ve been doing, which has been very proactive, is focus grouping these cases early because listen, the worst thing you could possibly do, um, which I think I think clients and attorneys are are guilty of this. You’re going to rely on, uh, the past, your past experiences. It’s a new case, right? This case is maybe similar to an old case, could be a new venue. Uh, relying on the past is not a good predictive variable. Uh gut instincts, hunches, right? Right. Um not not a good way to assess cases. Um uh assuming that the witnesses are, hey, they’re good people. They’re going to be fine at deposition when they get crushed. A lot of um preventable mistakes. So doing the focus grouping early, which by the way, hats off. It’s what the plaintiff’s bar does. Absolutely. They know what cases are winners and losers. Why? They assess them empirically. They know. And by the way, they have very good podcasts.
And if people are going to get mad at me or you for saying that again, they’ve put in the effort. And what I hear repeat, I listen to their podcast. I listen to all of them. And what they say is, which I do agree with, they say, we the attorneys are the worst evaluators of these cases. We’re the worst because we’re emotionally attached to them. We get confirmation bias. We we struggle to see our own flaws and weaknesses when they and that’s why they get their focus groups early and they do a couple of focus groups to say, hey, here’s the facts of this case. Here’s the various angles of it. And get regular everyday people right from the venue to give you the feedback. And you and I have done these. You always learn something that makes you go, oh my, oh my, wow.
[12:14] Doug
And I and I think a couple things. Yeah. For what we do in general as attorneys and particularly in the transportation industry, we get what a friend of mine used to refer to uh like the Febreze commercial, nose blind. Yeah. You know, we’ll see a driver’s record at MVR, things like this, and we’ll go like, well, that’s not bad. Yeah. And then you do it on the focus group, it’s like, oh my god. You know, the other thing I think is important, Bill, is the focus groups, like you said, but then the ability to retool and do it again. That’s the key. And learn from it and and and to see if what you learned is is correct on it. Yeah. I one time I had a horrible accident, you know, rear end accident. Wasn’t our truck uh but rear end accident and the occupant was burned alive. Just horrible facts. Uh and the the the claim was that we caused the backup by another accident uh uh on a rollover situation. Uh, we got the, it was at rush hour in a major city. We got the backup traffic flow expert of the western world. Did an analysis that it would have been a backup anyhow. This is a job. Yeah. Oh, yeah. This is, you know. Yeah. You know, backup flow coordinate. Yeah. Yeah. Uh, look it up on Indeed. Yeah. They’ve got them on there. So, yeah. So, uh, so he came up with this whole analysis this and that. So, we did with a focus group. They’re like, what a what a bunch of crap. Yeah. Well, that that what are you kidding me? We don’t. And so, all you know the company put all this money into it. We ditched the guy, redid the focus group, did much better.
[13:59] Bill
Yeah. Yeah. And so that test retest protocol that’s that’s what I exclusively want to do. Really. The problem is there’s this old model in jury research is you mock try it. Yeah. It’s like whoa whoa whoa whoa whoa. I say like in baseball, right? You hit the ball, you run to first base, then you run to second. The mock trial that’s like third base, right? You don’t run from home plate right to third because you missed those first two bases. And so, there’s a couple things I think with jury research that could be so much better to make it you get more bang for the buck is number one um exploring early, right? Like attorney it’s hard to get attorneys head around this because they want to you guys want to argue. You want to get in front of the mock argue. I go let’s get in front of the mock jury and let’s educate. Sure. Let’s just show them the dash cam, right? Show them the police. What do you think? Not argue about it, just what are the visceral reactions, right? Another thing is just comprehension, right? Well, you have this um you know, accident reconstructionist. Wow, this looks great. Well, what if jurors don’t understand it? Have you tested it? Yeah. Right. Have you have tested things like this? Um your witnesses, you can take videos of your witnesses and play them to an early focus group to say, wow, they don’t like our corporate rep. We like them. They don’t. Imagine solving all these problems early and then so then when you’re ready for your actual mock trial, that’s when you’re going to argue. You’re going to test strategy. Everybody just jumps to this step, right? And they miss things like juror comprehension, you know what the witnesses are going to be like. And then imagine doing this. You spend a day or sometimes even two. You spend over $100,000 on jury research. And and the outcome of the jury research is jurors don’t understand what the hell you’re talking about. Yeah. And they don’t like this, this, and that. They’re misunderstanding things and connecting dots, and you end up with more questions than answers.
[15:48] Doug
Yeah. Without the ability to go back and retool and try it again. What have we learned from this? Because that’s you know you know in our profession uh it is hard for us to admit that we don’t know or or that you know we don’t have the information on that and I think that’s the key thing that we need to do on it is to go through that.
First thing I do when I get a case in is to start to outline my closing argument. Yeah. Because these these are the cards I’m dealt when I get the file in. Uh these are the facts I have. What facts would I like to develop uh well to fill in. Okay, I know it there. And then it goes along with what you’re saying. Well, let’s test a lot of these facts. Let’s test a lot of the experts out and see how they’re going to fly so we can fill those gaps in in the closing argument because it all funnels for the closing argument. That’s where it all comes together where the logic is.
[16:44] Bill
So, you have to get there and there’s a lot of work to get there. One thing that um that we do a lot of with our testing and then re retesting is the key. And so, to do shorter projects and then multiply those versus just jumping right to the full day or the two day far more. You’re going to learn so much more and then you can adjust, right? Just like you’re making halftime adjustments during the football game and then you switch it up and see, you know, maybe this is going to work better. Um far far far better. But the whole notion of you, should we admit liability? Yeah. Right. That’s a big question. And some of these nuclear verdicts you read about and you’re going how did they not wait. You you fought liability on this? Are you crazy? Right. And so that’s I think jury research is a good way. So, we do a lot of projects where um you know on on a Tuesday we will test okay let’s fight let’s fight it on liability and then we will repeat the study on Thursday and then we admit liability. Yeah. And then you can compare the differences in damages. Yeah. And and and then you know but I think oftentimes this is skipped and you don’t know till you you know. And what the plaintiff attorneys say on their podcast, which I I completely agree with, they go, you don’t know what you don’t know. Yeah. And so, you know, they test things like, well, how, like for in trucking, um, there’s some very good uh uh plaintiff podcasts out there and some articles talking about you never really know how to go after the driver. We’ve got to test that. So, we’ll focus group it like we’re coming hard after the driver. Sometimes that works and then we know, hey, we can get away with this. Other times it blows up in their face and the jurors get angered. Working person, you’re picking on, why you picking on this guy? You were in an accident. They didn’t try to do it.
Yeah. And so they figure out, you know, how they should do that. The other thing that they do, which again the defense can totally do, right? Well, let’s let’s back up. They’re testing how they should go after the driver, right? We should test how do how do we go after the plaintiff? Really, right? Do we go full court press on this plaintiff, right? We dug through their social media. We have surveillance video. Test that because half of the time people come back. Even if you have great stuff, right? You got a guy claiming a back injury and then you have film of him playing pickup basketball at the local gym and you’re like, wow, we’re really going to stick it to them.
Sometimes the jurors go, well, that’s that’s not, that’s kind of sleazy of you. That’s kind of sneaky and unfair. And by the way, maybe the next day he had a ice pack on his back for eight hours and couldn’t move. Right. And so that’s like, so that’s a really a good thing to test. The other thing that plaintiffs’ bar tests a lot, which again you have to test this stuff to figure out where you need to be, is the number, right? They have to figure out what can I ask a jury for that’s going to be um in the sweet spot, right? But where’s that sweet spot? Nobody, you don’t know what you don’t know. Cuz the there’s two things they don’t want to do. They don’t want to offend a juror by coming out $150 million. Jurors like you see this visceral reaction because then it’s a huge turnoff. It looks greedy. So, you test that and then you retest to figure out where is it okay? But then what they have to also do is find the low range of that number, right? Like what what if I’m not asking for enough? So, they’re doing a lot of focus group research to determine their numbers. That’s what we do with our clients. We do the same thing is okay, you’re going to have a counter anchor. Where should that number be? Where’s, I call it the lowballing line where people are like seriously? Yeah. You’ve lost your credibility. So, the the other side’s asking for 40 million and your counter that’s $300,000. Okay? And where are you getting this from?
Right. So, there’s ways to test and retest to figure out where’s the number going to be that um, and you should always counter-anchor uh if there’s a number given. Your state you don’t have to deal with that, but other states you have to. Is where is that number to where jury’s going to be like, well, you know, god, that’s a that’s a reasonable number and let’s talk about this justifying um how the defense feels about damages. Because again, I think just putting out numbers, people like, well, why is it this number? And what are, you know, some of the ways to convey to the jury on this is a reasonable number, not cuz I think so, because look at what we can do with this number.
[21:21] Doug
And I think you start with, I like to start with the uh what I call the foundations of truth, the anchors, the objective things. So, let’s go to the medicine. And I am a stickler, as the people in my office, the paralegals will tell you, let’s get the MRIs, let’s get all those, have a radiologist look for is this related to this or is this just the trauma of life, degeneration? Go through and then try to address it. Then anchor that down into the uh the less objective, potentially subjective of the numerical lost wages, medical bills, etc., on that. What’s going to be, and I think that’s all got to equate into what that number is and build it for that sake.
[22:00] Bill
Yeah, there’s got to be a rationale behind it. I’m also a believer of making concessions.
[22:05] Doug
Yeah, absolutely.
[22:06] Bill
It’s it’s something the defense doesn’t like to do. We’ve tested this multiple times where it’s like, okay, future medicals are going to be somewhere between, you know, seven and $800,000 based on our person, on our our experts, right? You know what, look, we’re gonna round that up to a million just to be safe. Wow, that’s that that’s pretty nice of them. Just just so there’s no question about this. And it it’s only $250,000 you’re rounding up to. It’s stuff like that where it looks like you’re not nickel and diming because if you if you get perceived as a nickel and dimer.
[22:36] Doug
No, it’s off. It’s enough. It’s, you know, a lot of these things uh you know, I I see a lot of times uh companies will engage attorneys who uh did exceptionally well in uh evidence, you know, years ago in law school so they think they can try a case. And it is not a science, it’s an art. Uh a couple years ago, young lady, closed head trauma, uh difficulty with speech, difficulty with a number of things, and they put her on Friday afternoon, last witness, going to leave the jury with that impression. And I’m sitting there, and I had worked for hours on the cross-examination and this, and I’m sitting there listening and for an hour and a half she testifies incredibly cogently. Her vocabulary is fine. She’s doesn’t flinch, doesn’t take a break, and I just, you know, Mr. Marcello, I think, I’ve got no questions.
[23:39] Bill
Yeah.
[23:40] Doug
To to which your client is going like, what? What? You know, and so same thing closing argument. I said, look, there’s nothing I could have asked that young, and she was nice, it wasn’t, you know, you can’t beat up somebody like, there’s nothing I can ask that witness that uh was going to show you her capabilities more than what she showed you right there. On it. And and you know verdict came in 100,000 less than we had offered on it uh which the client was then assuaged on it. So, but uh you you got to make those, you can’t just go uh uh contest everything, fight everything, nickel and dime. Uh it just comes back. You know, my theory is that good, bad or indifferent, we tell the truth. Whoever tells the truth, the jury will like and even if they don’t find for you, they won’t hurt you. And and that’s, you know, that’s where it goes.
[24:29] Bill
And and the truth is messy. The truth is complicated, another big, you know, area that we’re doing a lot of testing on and we can prove this. The defense just unnecessarily likes to make things complicated.
[24:46] Doug
Yeah.
[24:47] Bill
So, I’ve been I’ve been doing something uh this is something new. I don’t like doing this, but uh we have clients, they’re typically newer clients, and they will send me an opening statement or a closing argument from a recent trial where they where they lost. And they go, we’re going to pay you to break this down postmortem. I mean, I’m still seeing the one-hour opening statements that are so in the weeds and comp— no rational juror could possibly keep up with this story because know why? There is no story. It’s disjointed. And again, it’s you have to remember how the juror brain makes decisions, how they process information. Jurors want a story and you gotta be able to tell a story, not get too, it’s like a TV show. It gets too complicated, the timelines all, I watch TV show that the timeline. By the way, I love the movie Pulp Fiction. It’s one of my favorite movies. But it’s like the first time you watch it, you get frustrated the first because you’re like wait a second. The timeline’s jumping like, and then you watch it the fifth time and you’re like okay, now I get it together. Well, you don’t have that luxury at at trial. And so having a defense counsel come up with uh crisp clean stories and avoid the temptation to get into the weeds, particularly in the in the middle of that like opening statement where it just, you put people to sleep. There’s this attention span issue, right? And if the plaintiffs’ lawyer have been working a lot, just good like 15, 20 minute max stories and they sit down.
[26:23] Doug
Well, and the other part of it, Bill, is I think the jury reaction is if it’s that darn complicated, you must have a problem. There must be a problem here. Must be problem. Yeah. It it is the simplicity, the direct uh and particularly the the uh uh undeniable. Hey, look, you know, you, but you’re they’re not going to be able to prove this, this, and this at the end of the day. And and because you know they can’t. You know, or they, you know, they’re going to try to come up with a bunch of stuff. You know, you use your own common sense on it because it’s not going to make sense their whole story and and just like you said, sit down. Just prime it, but sit down. It’s hard. It’s hard to sit down. It’s hard to stop. And and it is and and I understand and I’ve been there. Uh there is a professional insecurity that I’m not doing enough. I’m not doing enough. Or is it if I, there’s something else I could say or if I one of these things may hit the point with the jury. So, I’m gonna say them all. Yeah. As opposed to focusing on that one cogent argument that’s going to be the tipping point on it.
[27:29] Bill
So, you got concentration and dilution. Yeah. And when you start diluting your own, and and you don’t even know it and you think you’re doing more, like I’m saying more, therefore I’m doing better with this jury, it’s actually the opposite. So, the structure here is you got to start out strong, right? And that’s that, you know, I told you. Yeah. Every movie trailer, every one of them in the history of movie trailers is two to two and a half minutes, right? There’s a reason for that, right? And that’s how the beginning of this opening should start, right? You give your movie trailer what’s going on. And then you’re essentially at the end of your opening, you’re going to re-repeat that in some way, shape, or form and end strong. Those are the two anchor points. It’s the middle lately. I’m seeing the they want to go through the timeline and jurors are getting bored and jurors are looking at their watches.
You have to have faith that your your witness is gonna, your witnesses are going to carry the weight when they’re on the stand and you want to summarize that in your opening, right? But you can see how, okay, well I have expert, you know, Mr. Smith is my expert. He’s going to tell you X, Y, and Z. Move on to the next witness versus you spend 17 minutes on why he gets there and how he get—Have tease them with that. Yeah. Tease them with that. Tell them the qualifications and this is what’s coming and keep them on the edge of the seat and be able to sit down in 20 to 30 minutes and emotionally be able to to deal with that.
[28:59] Doug
And if I, the converse, you know, like I said, I start with the closing argument when the case comes in and that gives me, you know, night by the time the trial’s done, night before the closing, I I’ve got everything pretty laid out. I I see uh opposing council many times being caught up ice with these things. You know, the the the night before clo—they’re starting to write at that and they end up with a helter skelter, non-focused uh trying to cover everything at the same time and as a matter, and the the flip side of that is how are you going to give an opening that’s going to be a precursor to your closing if you haven’t done your closing yet? Yeah. You know, because because you haven’t done the closing, you don’t have the vision of the case. It’s I look at cases, a lot of it being a film and I’m the director, you know, I’ve got to do the logistics. I got to put the pieces together, call the scenes, call the shots, and I want to have that overall vision. And that’s my closing argument to be able to come down like that on it. So, yeah.
[29:59] Bill
And it takes a lot of it takes a lot of planning.
[30:01] Doug
It does.
[30:02] Bill
And if you’re doing this a week before trial, which I think happens a lot, it’s it’s probably not in your in your best interest.
Um I want to I want to end uh with the Warner uh decision. But before that, um something just popped into my mind. I want to get your uh thoughts on the first 10 years I was in this industry. The whole um I guess it’s a tactic um concept of the high low was very very very popular, right? Happened in most cases. It’s it’s like it’s gone. It disappeared. It’s not, what what happened to that because that’s a protective mechanism for both parties. And I’ve again I’ve seen it I’ve seen it work very very very well. It just doesn’t get to, like what what happened to the, it’s like lost in the wind. I don’t understand.
[30:52] Doug
My inclination is is um it’s the reason people buy a lottery ticket because you always have a shot at the upside. Yeah. And I think the plaintiffs’ bar always feel and the plaintiff attorneys always feel that there’s that there’s a great upside. You never know when these cases are going to hit. But the other thing is uh I think that giving a cap to the top end they view as taking away leverage of the potential runaway verdict. Yeah. And selling out on that. So, I I think that’s what has happened. But yeah, very rare and and you know rarely do plaintiff attorneys even entertain it to the extent I it’s not brought up much uh for that reason. And if they do entertain it, it’s a function of uh you know, we hear the unpalatable numbers, you know, I mean, we might as well, you know, just come to a settlement in that regard.
[31:48] Bill
Interesting stuff. Um, so the Warner decision, um, that case took forever. Um, a positive thing overall, at the same time, kind of a very messy situation. Drew a lot of attention. Uh what does it mean for the industry and um what are your thoughts on it?
[32:12] Doug
You know, it took years for a court, in this case the Texas Supreme Court, to apply torts 101 that you need proximate cause for liability in an accident. And you know, a substantial factor, not one that’s imagined, not just a matter of, you know, a chance of time and place. Uh and you know they they wrote a very succinct but very well-reasoned opinion. You know the notion that uh gee if that truck hadn’t been there uh on that day in that weather this accident wouldn’t have happened and the Texas Supreme Court goes well if it’d been traveling 100 miles an hour it wouldn’t have happened or if it had been a small car in that lane the F350 that lost control would have done serious harm if that killed the people in that car. But so, it it came down to, you know, for lack of a better term, we’ll go keep going with the sports analogy, blocking and tackling. Yeah. And it’s like, you know, just being at a location is not a substantial factor by definition for proximate cause needed for a negligence case. So yeah, uh you know, and I think people to look at it in terms of oh, it’s, you know, the case, it is a great win. It it is uh great in terms of the perspective on it, but I think it also primarily just reaffirms that somebody being at a location is not enough for them to be liable for the outcome of it. Texas Supreme Court goes, if there’s a head-on collision, under that theory, both of them are at fault. Yeah. Well, it could be that the one is in their lane, almost like this one, and the other one crossed over to do it. And I have trucking companies who say to me, well, the the the the plaintiff didn’t have a license, you know, so so they or the— they’re not here in this country legally. So, you, well, you’re in an accident and and that’s not a factor in causation, you know. So that’s where it kind of comes into it. So, it at the end, I don’t want to say it’s kind of anticlimactic, uh but it was the right result ultimately achieved.
[34:23] Bill
Yeah. Well, Doug, thanks again so much for coming on the podcast. I’m glad we have this very cool studio to use. Typically, you’re on you’re on Zoom and I’m in my studio and we’re we’re offsite here, but uh takeaway message. The defense can be very aggressive and proactive early in litigation, right? It’s that’s in your best interest.
[34:41] Doug
The key is, you know, we got to work to win the case, not work the case. And get after it. And I think there’s a lot we can do proactive, aggressive in these things uh that we need to do for the sake of our clients on.
[34:55] Bill
And resolution is a win.
[34:58] Doug
That’s right. That’s right.
[34:59] Bill
Doesn’t have to be a defense verdict. There’s other ways to to win to win cases and and you got to play the game the right way.
[35:04] Doug
Absolutely.
[35:06] Bill
Awesome. Well, again, thank you for coming on. Thank you to our audience members. Thank you so much for participating in this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. We will see you next time.
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