Episode #83: Defending Trucking Cases

Defense attorneys Melissa Graves and Rick Joslin from Collins Einhorn Farrell join the podcast to talk with Dr. Steve Wood about trucking litigation. They discuss their approach to defending trucking cases by focusing on both the liability angle and damages. They talk about the importance of starting work on the case early with reviewing evidence and speaking to witnesses and emphasizing the criticality of an early start with their trucking clients and the insurance companies. Melissa and Rick share that the most difficult issue with defending trucking litigation cases is the scope of the damages, especially in fatalities or severe injury cases. The group also discuss how they handle negative perceptions of truck drivers and trucking companies by getting jurors to relate to the truck driver and humanizing them. Lastly, they talk about preparing witnesses for depositions, getting truck drivers prepared for Reptile questions, the benefits of videotaping the deposition practice & prep and how the perceptions of truck drivers and trucking industry can be bolstered by the role they played during the Coronavirus pandemic.

Full Episode Transcript

[0:05] Steve Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. I am Dr. Steve Wood, and today we’re talking about one of my favorite topics that I haven’t had a chance to talk about as much on the podcast, and that being trucking cases. And here to help me talk about that is Melissa Graves, and back again is Rick Joslin. Uh, both of these attorneys are from Collins Einhorn and Farrell. Melissa, how are you? Welcome to the podcast.

[0:32] Melissa I’m well, Steve, thanks. How are you? Thanks for having me.

[0:34] Steve I’m—I’m good. Rick, good to see you again. Welcome back. How are you?

[0:38] Rick I’m well, thank you. Thanks for—for having me back. I guess the first one didn’t go too badly, so.

[0:46] Steve Yeah, no, no, they didn’t get kicked off yet, so you’re in good shape. Melissa, before we kind of dive into this topic, could you just give the audience a little bit of background as far as your area of expertise and how—

[1:01] Melissa Well, I’ve been a defense attorney for almost 20 years, and I’ve spent the last 10 years of my practice at Collins Einhorn Farrell with a big chunk of my work devoted to defending trucking accidents.

[1:15] Steve Okay, great. Rick, what about you? Same thing. I know we’ve had you on before, but just for those who didn’t hear from you the first time, can you kind of go background on your area?

[1:26] Rick Sure. I’ve been an attorney for 29 years, last 20 of them with Collins Einhorn Farrell. We do mostly insurance defense work, representing insureds in all sorts of cases. My particular practice involves the defense of all sorts of high risk, high exposure cases, including a large percentage—percentage of trucking accidents because that’s where we see a lot of those types of high exposure, high value cases.

[1:58] Steve Yeah, I think that’s a good point, and that’s one of the reasons why we wanted to talk about that is we’ve talked a lot on the podcast about nuclear verdicts and reptile theory, and I think trucking cases are definitely one of those where both of those are involved. You know, met that—trucking and med mal, I think, are the ones we see it the most as far as both reptile theory and nuclear verdicts. I think it’s a really important topic that we need to touch on, and especially from the defense bar perspective on suppressing these nuclear verdicts. And kind of lead us off, Melissa, could you talk about what is your approach to defending trucking cases?

[2:33] Melissa Well, I think in general, it’s a two-phase approach. You’re going to look at whether or not you have any liability defense to the accident itself, and then you’re going to get into the damages. Um, so on the liability end, you know, you oftentimes are representing both the driver and the trucking company. Um, so typical areas you would look at and dive into at the outset to see if you have a liability defense to the accident itself are things like dash cam videos, ECM data for the involved unit, any surveillance cameras in the area of the accident. So those can all be very fruitful areas to get locked down immediately after the accident occurs to see if you have a chance of defending the case on its merits. For the trucking company, same sort of thing. You want to jump on it and be proactive and preserve information regarding the load that’s being hauled, you know, hours of service logs for drivers, driver qualification files, um, maintenance for the involved unit, you know, all of that good stuff. So that’s—that’s sort of the initial approach I would take is to work on getting those sorts of things to see if we can raise any defense to the accident itself.

[3:50] Rick Okay, and Melissa makes sort of a good point there. She used the word a couple times during that which is “early.” Um, what we like to have—we have a number of trucking companies that retain us directly, and in serious accidents, they get us involved from the day of the accident. We’ll get a call: “There was an accident this morning at such and such a location and we want to retain you guys.” And so it’s important for us then to try and be in that case early. It’s important to the trucking company as well because what that does is it creates an attorney-client privilege regarding everything that transpires from that point forward that we’re doing on their behalf. And that includes, uh, interviewing the driver, um, you know, talking to witnesses, things of that nature. Those things all become privileged if we can be brought into the case from very, very early on. We can work to preserve that kind of data that the Melissa is talking about. Maybe the other thing that’s kind of relevant to that early approach is that we’re often asked to retain the—or defend the trucking company early on, and we have to make that clear to the driver when we interview them because we don’t know the facts and circumstances of the accident. And we always want to make it clear, at least in those initial conversations, that we’re representing the company, not necessarily the driver, and make it clear to the driver that that might be an issue. Because if the driver turns around and starts pointing towards the company, we don’t want to create that conflict of interest problem. And so those are kind of things we try to address very early on in the case if—if we’re brought in.

[5:33] Steve I think you brought up a good point about that as far as, you know, having the driver be clear that you’re representing the company. Because I think you have a lot of different things at play when you’re defending a case, right? You’re going to have hours of service violations that they’re going to be looking at. You’re going to have, you know, accusations on the trucking company about negligent hiring. You’re going to have, you know, being tired, being—having bluetooth headphones or having—being on their cell phone or any of those different things. So you have a lot of things at play as far as defending the case. You know, Melissa, what have you found to be really kind of the most difficult part to defending a trucking case? You know, all the different aspects of it.

[6:15] Melissa Well, I think one thing that I see pop up relatively frequently, and you mentioned it a little bit earlier, Steve, are things like hours of service violations, etc. Trucking companies are subject to a lot of different rules and regulations by the Federal Motor Carrier Safety Act, and so oftentimes we’ll get extensive discovery requests from the other side wanting the trucking company to produce all manner of information to show that the trucking company complied with all of those rules and regulations. And sometimes those bear no relation whatsoever to the accident itself. So I think that, you know, I don’t know if I would necessarily call it a—a tricky part of the litigation, but it’s something that we try very hard to keep out of the case and be aggressive with motion practice to try to resist those sorts of discovery efforts, and ultimately filing motions to dismiss claims regarding violations of federal motor carrier safety regulations. Um, you know, especially if it has nothing to do with the accident. You know, for example, perhaps the trucking company may not have kept the best—best records about preventative maintenance for the involved unit. But the fact that the trucking company can’t come up with a piece of paper showing that the oil was changed on the unit six months ago before the accident has absolutely nothing to do with the fact that, you know, this driver might have rear-ended somebody and caused an accident. So those are sorts of things that we see come up and, um, you know, I think it’s—it becomes important to then focus on what actually caused the accident and making sure that these other allegations don’t creep in. Because a lot of plaintiff’s attorneys have this whole theory that they just want to make trucking companies look bad. You know, they’re—um, you know, they’re unsafe, they’re not following the rules. So trying to resist going down that road is something we’re always mindful of.

[8:19] Rick I would disagree with her a little bit in there in that I think the most difficult problem with trucking cases is the damages. Almost always, when we’re brought into these cases, especially early, it’s because there’s a catastrophic injury. And so you’re starting in defending these cases from a position of, “Oh my god, somebody’s either dead or profoundly injured.” And so that sympathy factor goes immediately towards the point of—and especially if you’re representing a large national carrier, uh, you have the little guy driving along in his, you know, little, you know, Toyota Corolla and he’s hit by a large semi truck. You know, look at these catastrophic injuries. And so I think the problem becomes is that you’re swimming uphill if you’re in front of a jury, at least as to defending these cases, and all the liability issues that the Melissa mentions which are troublesome to get there are made even more difficult by the scope of the damages.

[9:26] Steve I think that’s a good point and it made me think about something too. You know, you were talking about, Rick, about the sympathy factor. I think one of the other uphill battles that you have from a trucking standpoint is that we found when we do research across the country is one of the consistent things that we see is that jurors tend to have a negative view of truck drivers. Either just because a lot of them have had some experience—not necessarily an accident, but they might have had a close call—or they get nervous when they get next to a truck on the highway and they want to speed past them. So there’s real negative perceptions of truck drivers. And that’s what I want to talk about, Rick—follow up with what you’re saying is: How do you guys work to try to head off or correct these negative perceptions of truck drivers in the trucking industry in general?

[10:11] Rick Well I think, you know, it’s—it’s true not just in trucking cases but in all cases. But you’re right, that is a—an issue. And what we try to do is we try to humanize them. We try to, you know, let the jury—if that’s who’s deciding the case—see who the truck driver is. That he’s a—a father, a husband, a member of the community, that he pays taxes and he works very, very hard. And if he’s a long-haul trucker, spends an awful lot of time away from his family to earn a living and to keep the commerce of America moving. In—in Michigan, um, because of the nature of, you know, the auto industry and it’s heavy prevalence here, I don’t see that as much of a problem in Michigan, but maybe Melissa would have a different kind of viewpoint.

[11:01] Melissa I agree, Rick. I don’t see it necessarily as—as much of a problem here in Michigan, but I can certainly see the sense that there can be a negative perception of truck drivers. And I think what Rick said earlier is exactly right: you try to humanize the driver. You also try to get out this concept that, you know, just because this is a professional truck driver, they’re still a human being and accidents happen no matter how experienced you are. So kind of to press back against that notion that, you know, just because you’re a truck driver, the mere fact that you’re in an accident means that you did something wrong. Because everyone gets behind the wheel of a vehicle, you know, oftentimes even if—even if it might not be a truck. And I’m sure people who have been an accident sometimes think that those aren’t their fault. So kind of translating those concepts into the truck driver scenario and getting themselves to—a jury to put themselves in the heads of the truck driver and realize, “Okay, you know, they’re really just driving—yeah, it’s a truck, but they’re really just a driver like—like everyone else and accidents happen no matter how experienced you are.”

[12:12] Steve Yeah, I think you know one of the things you talk about about humanizing them and trying to get people to understand that they’re just a regular person and not some evil entity or some evil individual who’s out there trying to cause a lot of harm. I found though that one of the things that—that’s difficult to get across, you know, with this negative perception, and I’ve also found that sometimes truck drivers don’t necessarily help their cases in deposition. They tend to be some of the ones that are a little bit more difficult to prepare for their depositions, and they’re also the ones that tend to fall into the traps of the reptile theory and these aggressive plaintiffs of, you know, “unnecessary risk” and “needlessly in danger” and all the different safety rule violations. So Melissa, how does your approach to truck drivers—and what is your approach as far as how you get them prepared for deposition knowing that they tend to be a little bit more difficult than say the safety director or someone else involved in the organization?

[13:06] Melissa I mean, I think probably just focusing the deposition preparation more on ensuring that the driver is mindful of the whole reptile theory in advance, and that they’re not taken by surprise when they start getting asked those sorts of questions at the deposition. And then also, you know, making sure that the driver is also mindful of keeping calm, you know, not arguing with the questioner. So, not dramatically different from preparation of any witness that i would prepare for a dep but with specific emphasis on topics that I know that are going to come up, you know, like the reptile theory that we see more commonly in trucking cases than we might in other types of injury cases.

[13:51] Rick Yeah, one of—one of the, uh, techniques, you know, we’ve had a lot of success with here in terms of preparing truck drivers is videotaping the prep. You know, it’s like Carnegie Hall: practice, practice, practice. Um, and so I’ll—I’ll tell you a little anecdote to illustrate it. So we had a truck driver who, um, was not born in the United States and he had a, you know, a bit of a language issue, and so we were going to use a translator to, uh, help him when he was being deposed. And so we had a translator in for the dep prep and the driver’s wife sat in on the dep prep as well, and because she was also serving as a little bit of our translator. And so we went through the questions and we—you know, I had my—one of my associates was playing plaintiff’s attorney and asking a number of pointed, you know, difficult questions like Melissa alluded to with the reptile theory and that type of thing. And so we went through the first session and let’s say he was okay, but maybe not. And so—but he had this interesting habit of whenever he was asked a difficult question, he would grab his cheek and like pinch himself while he was answering this difficult question. And so we had it on videotape, and so we replayed the videotape and we started walking him through it. And we got to this point where he started grabbing his cheek, and I said to him, “You know, you need to stop doing this because whenever you have a difficult question, you know, it’s like a—tell in poker. You grab—you grab your cheek.” And his wife, who has been sitting peacefully, quietly in the corner, started laughing. And I said, “What?” And she said, “Well,” she said, “he did the same thing when he proposed to me.” And so, you know, so that goes back to, you know, hey, you can—they can see what they’re doing. And so we ended up going through two or three different sessions where we videotaped it, and when he was deposed he was phenomenal. I couldn’t have answered the questions better, more appropriately, if I did it myself. And—and so but we were able to take that and you could see in him the human element of him. We were able to humanize him, you know, in front of the plaintiff’s attorney at that point for the deposition, and we were able to then use that to—to affect a good result in the case.

[16:14] Steve I think that’s a good point as well is when you’re talking about doing multiple sessions. We usually get involved in trucking cases and help with the witness training, and it usually does take a little bit longer. And that was why I said that truck drivers are a little bit more difficult, and that it tends to take a little bit longer in order to get them to—because a lot of them aren’t necessarily—let’s just say, you know, they—they spend a lot of time by themselves and sometimes some of their social skills aren’t quite as good as others. And they tend to sometimes get more upset, or they tend to use more of “trucker language” than you—you know, to—then—then other people will. So that’s why I said, I mean, I love truck drivers, I think they’re great, but as far as a deposition standpoint, you know, you—you don’t want to have them do that in the deposition. So that’s why I think it’s a good point that you said you did it two or three times because that’s one of the things I found is that the prepping for the actual deposition itself takes a little bit longer because some of these concepts are going to be a lot—are very new, very foreign to these truck drivers. And they’re going to spend it—and need a lot of time going through and getting comfortable to respond to your point, Rick, to be able to go in there and answer the questions as good as you—as you could have.

[17:26] Rick So that’s why I think the videotape really helps is that they can see themselves, what they’re doing, how they’re responding, what their body language is, why sarcasm doesn’t work, why it doesn’t look good. And so we just—you know, it’s not anything fancy. We set up, you know, uh, you know, video camera in the corner and hit play ourselves. There’s nothing fancy and just, you know, do it that way.

[17:54] Steve Excellent. And I want to close out on the topic of COVID-19. We’ve talked before, Michigan has some of the higher rates going right now, and you know, you—you guys are kind of the top of the nation as far as—one on the top of the nation as far as COVID. How have you guys seen though as far as COVID-19? We—we did some research once and found that, you know, the—the thoughts and opinions of truck drivers had increased a little bit after COVID-19, but it still wasn’t to a super high level being that like a lot of times we saw that it was the medical professionals, nurses, doctors that were getting all the love. But the truck driving—truck drivers in the trucking industry wasn’t getting a lot of—wasn’t getting a lot of love even though they were the ones who were bringing the vaccines, who were bringing the food, who were bringing the toilet paper when people were fighting over it. You know, they were doing all those things. And we had a podcast where Dr. Kanasky and I talked about how we thought that the trucking industry hadn’t really made good strides, but they still have time to do it going forward to try to get people to get these negative perceptions over and to realize how the trucking industry has helped. Do you guys see that, uh, going forward? Do you see that this is going to be an instance where people are going to feel better or are we going to be back to pre-COVID-19 where people still have these negative opinions about truck drivers? What do you think Melissa?

[19:16] Melissa Well, I haven’t seen it trickle into any of my current cases yet, but I can definitely see the sense of, you know, “Hey, the trucking industry, just like all the healthcare workers and other frontline workers, helped keep America going during this unprecedented global pandemic.” I can see that idea and notion creeping into the defense of cases, especially when it comes to things like we talked about earlier about humanizing these truck drivers and—and you know, hitting on things that make them more likeable, um, for a jury and as a witness. So certainly that’d be something that I’d want to focus on during deposition and prep—preparation with my truck driving witnesses. You know, if they were out there working and keeping—keeping things going during COVID-19, that’s—that’s definitely something I would want them to mention at a deposition.

[20:13] Rick Yeah. Yeah, I think that’s exactly what we would do is we’d use it as part of the humanizing process. “Remember it’s, you know, a truck driver who got your Amazon package to you for the 456th time during this pandemic.” Uh, we haven’t had an opportunity in Michigan at least to try—try it out yet since we haven’t had a trial here since March of 2020. So, but I think that is going to be the approach.

[20:38] Steve That’s good. Like I said, and I think that’s one of the things is the trucking industry needs to do a little bit more of is—is reminding people that, like I said, these are people, as you mentioned earlier, Rick, spending a lot of time away from family and putting in a lot of the effort and work while we were all sitting inside, you know, quarantined. They were out delivering goods and all the doubt—essentially risking themselves and their health out there to deliver the packages. Your Amazon package, like you said, for the 400^th time. But I appreciate it guys. Thanks—thanks for taking the time out to talk to me about this topic. Melissa, if anybody wants to get a hold of you, talk to you anymore, uh, has any questions for you, how do they get a hold of you? What—what—how can you be reached?

[21:21] Melissa Sure. Um, well our website is ceflawyers.com. It has all my contact information. My direct dial number is 248-351-5423.

[21:36] Steve Great, thanks. Rick?

[21:38] Rick Yep, same here. Same websites, same email contact information is on the website, and our direct dial is 248-351-5412.

[21:49] Steve Great, and I am Dr. Steve Wood. I can be reached at swood@courtroomsciences.com. This has been another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. Thanks for listening, thanks for joining.