COVID-19: The not-so invisible risk to the trucking industry
The notion of “nuclear verdicts” has recently become a primary focal point of attorneys and litigation psychologists. Books, such as Bob Tyson’s “Nuclear Verdicts: Defending Justice for All,”[i] have recently become available for defense attorneys to assist them with combating the Reptile theory tactics that have contributed to nuclear verdicts. In addition, we, at Courtroom Sciences, Inc., have spent a significant amount of time discussing this topic. However, if you were to ask 100 people to define “nuclear verdicts,” you would be hard pressed to get a unanimous definition. Some individuals may define it as an award of $5 million or more.[ii] Others may define it as an award of $10 million or more.[iii] And even still, others may define it as an award that significantly deviates from relative pre-trial expectations (e.g., if "X" is the pre-trial expectation and the outcome is 5 to 10 times higher than “X”).[iv] In the end, nuclear verdicts are like beauty – in the eye of the beholder. One thing that is clear, though, is that they will not be going away anytime soon for the trucking industry, even after COVID-19.
It would be a fair assertion that the trucking industry has been negatively affected by nuclear verdicts, more so than many other industries. A review of recent courtroom verdicts shows that trucking companies have been on the receiving end of some of the highest verdicts over the last several years.[v] Such large verdicts, along with rises in insurance premiums, have even led some trucking companies to file for bankruptcy.[vi] However, with the current COVID-19 pandemic, there has been a prevailing belief that the tide may be changing and the number of large verdicts against trucking companies may begin to decline. More specifically, assertions have been made that the perceptions of truck drivers have become more positive as a result of COVID-19 because they are now being heralded as “heroes” who are placing their lives at risk to bring the public desired goods, such as food and medical supplies. Some individuals have even suggested that 2020 may go down as the year that truck drivers attain similar status to first responders after 9/11.[vii]
At Courtroom Sciences, Inc., we recruited 298 respondents to examine these assertions. Respondents were obtained from jurisdictions that have been known to produce volatile damage awards – commonly referred to as “judicial hellholes” (e.g., Los Angeles, Chicago, and Philadelphia). These individuals completed a survey across a variety of issues related to COVID-19. One of these issues examined individuals’ opinion changes across several industries, including trucking. Respondents were asked, “As a result of the coronavirus/COVID-19, how have your feelings changed, if at all, regarding the following businesses or industries?” Of the respondents, 51% indicated that they had no change in their opinion toward trucking companies, 23% indicated that their opinion was somewhat more favorable, and 21% indicated that their opinion was much more favorable. The 44% of individuals who indicated that their opinions are more favorable lends some credence to the idea that the public’s perception of the trucking industry is improving. However, the remaining 56% of individuals who expressed no change, or even less favorable attitudes, is troubling when considering that the public’s opinion of the trucking industry tended to be negative prior to COVID-19.[viii]
The argument could be made that our data is somewhat misleading because we asked about the “trucking industry” and not “truck drivers.” However, I would argue that many cases involving catastrophic injuries involving semi-trucks often involve plaintiff attorneys focusing on the “Dirty Five” of trucking companies: (1) fatigue, (2) distracted driving, (3) driving under the influence of drugs and/or alcohol, (4) lack of equipment maintenance, and (5) inexperienced/improperly trained drivers.[ix] Some of these arguments focus on the actions of the driver, but these arguments are usually made within the context of systemic failures by the trucking company in controlling the number of hours its driver’s work, failing to properly screen its potential employees, and failing to properly train its drivers. In addition, lawsuits often name the trucking company as the defendant, not the individual driver. When the driver is named, they are often dropped on the eve of trial, leaving the trucking company as the sole defendant.
We also asked respondents to give us their opinion on Walmart. Surprisingly, the results for Walmart closely mirrored those of the trucking industry – 43% of respondents indicated no change in their opinion, 22% indicated their opinion was somewhat more favorable, and 21% indicated that their opinion was much more favorable. What makes these results surprising is that no one appears to be talking about how Walmart or its employees are “heroes.” In addition, I have yet to drive down the highway and see a billboard thanking Walmart employees for their service. And yet, the public’s perceptions are similar between Walmart and the trucking industry. The purpose of pointing out these statistics is not to belittle Walmart or its employees. Rather, the purpose is to highlight that, despite billboards, roadside signs, and anecdotal evidence, the positive beliefs toward trucking companies may not be gaining as much traction as some people would like to believe.
What does this mean for defense counsel then? What it means is that they cannot assume that the public’s perception of the trucking industry has improved, and the threat of nuclear verdicts has subsided. Defense counsel must remain vigilant in their attempts to limit damaging witness testimony and to advance their “good company narrative.” In addition, they should continue to partner with litigation psychologists to help train witnesses and formulate arguments that will resonate at the jury level. Now is not a time for defense attorneys to become complacent and allow plaintiff attorneys to exploit the defense bar’s emerging “blind spot” with respect to the public’s attitudes toward the trucking industry. If this occurs, trucking companies will continue to file for bankruptcy and nuclear verdicts will continue to rear their ugly head.
[i]Tyson, B. (2020). Nuclear verdicts: Defending justice for all. Law Dog Publishing, LLC: La Jolla, CA.
[ii]FreightWaves. (2020, March 6). Make it stop: Confronting the nuclear verdict threat to trucking companies. Retrieved from https://www.benzinga.com/news/20/03/15497009/make-it-stop-confronting-the-nuclear-verdict-threat-to-trucking-companies
[iii]Holm, S. (2020, January 13). Are nuclear verdicts out of control? FreightWaves. Retrieved from https://www.freightwaves.com/news/are-nuclear-verdicts-out-of-control
[iv]Holm, S. (2020, January 13). Are nuclear verdicts out of control? FreightWaves. Retrieved from https://www.freightwaves.com/news/are-nuclear-verdicts-out-of-control
[v]The National Law Journal. (2019, June). The top 100 verdicts of 2018. Retrieved from https://www.travelers.com/iw-documents/business-insurance/excess-casualty-top-100-2018-verdicts-BEXBR.0008.pdf; Truckload Indexes. (2019, November 20). The numbers don’t lie: Size of legal awards vs. trucking companies is soaring. Retrieved from https://www.truckloadindexes.com/data-commentary/the-numbers-dont-lie-size-of-legal-awards-vs-trucking-companies-is-soaring
[vi]Hawes, C. (2020, March 3). ‘Nuclear verdict’ forces Arkansas carrier to cease operations after 19 years. Retrieved from https://s29755.pcdn.co/news/nuclear-verdict-forces-arkansas-carrier-to-cease-operations-after-19-years
[vii]Rutherford, K. (2020, May 11). Can the COVID-19 crisis serve as a ‘vaccination’ against nuclear verdicts in trucking? The Trucker. Retrieved from https://www.thetrucker.com/trucking-news/business/can-the-covid-19-crisis-serve-as-a-vaccination-against-nuclear-verdicts-in-trucking
[viii]See Garner, B. (2017, February 6). Opinion: Share the message of trucking’s Importance. Transport Topics. Retrieved from https://www.ttnews.com/articles/opinion-share-message-truckings-importance; see Trial Behavior Consulting. (2016, June 6). Juror attitudes in trucking litigation. Retrieved from https://trialbehavior.com/juror-attitudes-in-trucking-litigation/
[ix]Holm, S. (2020, January 13). Are nuclear verdicts out of control? FreightWaves. Retrieved from https://www.freightwaves.com/news/are-nuclear-verdicts-out-of-control
Counter-Anchoring Damages is More Important than Ever