The Litigation Psychology Podcast - Episode 7

Trucking and transportation litigation

CSI - Courtroom Sciences Inc

The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI) presents a new episode on litigation in the trucking and transportation industry. In this episode, Dr. Bill Kanasky, CSI Litigation Consultant, is joined by 30-year veteran litigation attorney Mike Bassett. Mike and Bill discuss how the trucking and transportation industry is being recognized for their contributions during the COVID-19 pandemic and how that might influence juror perceptions. They also discuss the importance of storytelling in litigation, how the trucking industry needs to be better prepared for nuclear verdicts by being proactive, how to combat a plaintiff reptile attack, and more. 



PODCAST SUMMARY:

Dr. Bill Kanasky

Welcome to The Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky. We've been doing a series of podcasts that have been very fun, very informative for our clients and we've had a couple of special editions and this will be one of them addressing the coronavirus impacts on litigation of various industries. And today we're going to talk to a very special guest, Mike Bassett, a long-time trial attorney in the transportation and trucking areas. And we're very excited about this because Mike has an amount of experience that I've not seen. Mike's been doing this for 33 years. He's tried almost 180 cases to verdict. You just don’t see that today. Texas, Louisiana, Florida, and really has been handling trucking work since day one. He's a member of DRI Trucking, the Texas Association of Defense Counsel, my favorite the Association of Defense Trial Attorneys, a great group there. Transportation Lawyers Association and the International Association of Defense Counsel, which I've spoken at many times before. I'm really excited to have him because COVID-19 has had a huge impact on the trucking industry and now that litigation moves forward, I think, and I hope we're going to see a little different view of the trucking industry. Mike Bassett, thanks so much for being on the podcast today.

Mike Bassett

Well, thank you very much for the kind words. As Lyndon Johnson said when he was introduced like that one time, my father would have been proud and my mother would have believed you.

Dr. Bill Kanasky

Great stuff. Well, I'm sitting here in Orlando, Florida and you may hear some birds chirping in the background. It's just so beautiful outside so I figured we'd do this podcast outside. And yeah, my first question, you've been doing this for a long time and I like to ask this of all my guests; when was the moment you decided you want to be a trial attorney in the trucking industry of all industries? I know a lot of people; I was going to be a physician, then I was going to be a physical therapist and then it was an athletic trainer. And it's like, you know a lot, particularly when you're young, you change your mind. What is it for you that got you into this industry?

Mike Bassett

So the first time I realized I wanted to be a lawyer was a sophomore in high school and we had an ethics or government class and we were studying the judicial branch and we had to do a mock trial. And I really did enjoy that. And then I realized I loved trucking when I was about six months into practice and I wandered into my mentor's office, Chuck Green at Cowles and Thompson and there was a file sitting there involving a cement truck. And I said, Hey Chuck, what's that? He goes, Oh, it's a truck wreck. And I picked it up and thought, this is really interesting. And from that day forward, I've loved doing trucking work and I've been proud to represent truck drivers and trucking companies in litigation.

Dr. Bill Kanasky

Well, there's no shortage of trucking litigation, I can tell you that. And, us at Courtroom Sciences, we've been intimately involved with the trucking industry, doing focus groups, mock trials. My favorite is preparing both drivers and safety directors for deposition and trial. Those are always challenging witnesses. Mike, over the decades you've seen a lot of change in the trucking industry, particularly with technology, driver training, safety training. So now we have COVID-19, and I guess the good news regarding COVID-19, is that the trucking industry for really, I think the first time has gotten some pretty great kinda natural PR through the government. I think they had a Trucker Appreciation Day. What have you seen kind of nationally and in the media from a PR standpoint that you think is going to be helpful for the industry going forward regarding litigation and your perception?

Mike Bassett

Well, one of the first things I think we all need to remember is your truck drivers and trucking companies are getting recognition for what they've always done. So, the trucking industry is not doing anything especially new. These drivers are out there delivering these goods every day like they always have. I am hoping, and I think that those of us who defend trucking companies need to be thinking about how do we continue this narrative because I think you and I can agree, Bill, that if you were going to try a lawsuit, you have got to have a story to tell. And I think we have a great story that is being given to us right now and that is how truck drivers and trucking companies are helping make America continue to run and to feed people and to get things to the frontline for healthcare workers and people like that. So that is the narrative that I'm excited to see and that is the narrative I think all of us need to be pushing and need to see where we can tie it into our cases.

Dr. Bill Kanasky

I totally agree. You know, for the last 50 years at least the plaintiff's bar has actually had the better story saying, Hey, no one likes these truck drivers. When you're driving on the interstate, what do you want to avoid? Truck drivers. These are big dangerous, you know, these things are missiles on wheels that are 80,000 pounds and they've always had the better story and I'm hoping that we can change that going forward. But I guess my fear is that our society, unfortunately, this is just the fact of the matter or the matter of fact is it's we're a very, what have you done for me lately society. So, what are some of the things that the industry can do; the trucking industry along with their attorneys to keep this positive narrative going after this pandemic is over?

Mike Bassett

Wow. Well I think one of the things we can do is continue to get the narrative out there through social media and other platforms, to print publications. I think that trucking companies need to get the message out there that what they are doing fits into this narrative of keeping America moving forward and keeping people fed and keeping people safe by what they are doing. For instance, let's say that you're a transportation company. If you've got a big warehouse operation and you've got an accident that happens in a warehouse, well, if that warehouse provides goods and services that are going to the front line or that are going to a grocery store or somehow going to a place that makes America safer or helps us with the fight against COVID-19, that is the story that the trucking company needs to be ready to tell. And more importantly, the lawyers defending that trucking company need to be ready to tease out of their witnesses. So I think it falls equally to both the trucking company to know where they fit in the narrative and then to defense lawyers to be acutely aware of that and be ready to get that out in front of a jury. Because you're right, every time I pick a jury and every time it's a trucking case, and there may be 60 people on the venire and I say, who by a show of hands really hate when they see a big truck coming up behind them, 58 or 59 out of 60 raise their hands.

Dr. Bill Kanasky

No, you're absolutely correct. You know, something that I've seen for years, which you know, the plaintiff's bar spent a lot of money. Well, for example, now that we're all sitting at home and probably watching a little bit more TV, the amount of funding they put into TV advertising is absolutely incredible. And every commercial break, I'm seeing some local plaintiff attorney essentially inviting lawsuits, but even more importantly, through you know, I've driven up and down I-95 and when I'm working in the Chicago area where I used to live in that whole I-65, 90, 80 corridor, that could be one of the busiest trucking routes in the country. And I swear, Mike, every other billboard is an anti-trucking plaintiff attorney billboard. And so, I really think going forward, particularly after this pandemic is over, there's gotta be some sort of public relations push. I don't know if the defense bar and the industry can match what the plaintiff's bar is doing in this regard, but I think some effort needs to be put towards more positive messaging, correct?

Mike Bassett

I agree. Because, you know, here in Texas we have we've got I-10, I-20 and 30, and we get a lot of truck traffic through Texas and we see the same billboards, but we have a very strong trucking association, the TXTA, with John Esparza and all those people. And they are doing a very good job of getting that message out there. Hey listen, this is what we are doing and this is more importantly, Bill, why we're doing it. And if I've got a truck wreck right now today and it goes into litigation, you can rest assured that I want that jury envisioning my driver, you know, driving into a city to deliver goods and services that were needed by people that day in that moment. And while this COVID-19 thing may die down, I think that we're going to feel the reverberations of this at least through 2021. And I don't know if you feel differently about that.

Dr. Bill Kanasky

Oh, we're definitely gonna feel on a positive note and I haven't seen it. Maybe I've seen it, I just don't remember. One of my clients is Old Dominion, a highly respected trucking company. Great, great people that work for that company. Even before the virus, Mike, I'm not sure if you’ve seen, they've put out commercials talking about the importance of the industry and the pride that they take and they show the truck driving down the highway and a nice scenic background and they show the driver delivering goods. Do you think more trucking companies need to put the investment into those types of feel good commercials? Even though us, the general public aren't hiring, you know, J. B. Hunt or Old Dominion directly, I think that's the way to nationally maybe get that message out. But I've only seen a couple of trucking companies do that.

Mike Bassett

Right. So I'm certainly not an expert in public relations, but I gotta tell you, you know, here in Texas for a while they had a slogan, ‘you name it, a truck brought it’. I think that is such a great slogan and that is something that I think trucking companies need to think about because, you're right, it really doesn't matter so much what the message is. But I think as long as the general public sees that truck drivers are doing good work and doing good things, that cannot do anything but help us in front of a jury. Because you're right, the plaintiff's bar has a very simple narrative. It's a very powerful narrative. That's a very visceral narrative and we have got to overcome it. It's a little more work. But I think we can do it and I think we have to going forward because I don't know when is the next time we are going to have 12 people or six people sitting side by side in a courtroom hearing a jury trial. So these are things we need to be thinking about today. Not in six months.

Dr. Bill Kanasky

Mike, I want to talk because again, you have decades of experience. And one thing I have noticed, and on this podcast, we want brutal honesty. If it rubs people the wrong way, we're not really concerned because we want to solve the problem and to solve problems you have to point out weaknesses. I have noticed that the generation of attorneys behind you, they're just, many of them, not all of them, many of them are just not effective storytellers. And I know that you've tried almost 180 cases to verdict, which is almost unheard of. You know, the generation behind you, they may have 20 or 25 underneath their belt. How can we get that changed? Because there's less trials now Mike. And so there's less courtroom experience. What do you think about the importance of the generation of attorneys behind you? You know, those 30- and 40-somethings to get those storytelling skills? Cause we do a lot of mock trials for trucking companies and some of the presentations put on, they're very factually based and they don't really grab the storytelling part that the juries want. How do you think that the industry needs to address that?

Mike Bassett

Well, it does need to be addressed. And I think you're right. I think that a lot of lawyers, my generation back, I turn 60 pretty soon, don't have a lot of trial experience and it is a function that there have not been a lot of cases going to trial and I think we need to talk about this storytelling. I think that lawyers need to invest in the art of storytelling and maybe that is doing stuff through DRI or other organizations, being a student of storytelling, I think that mock trials and focus groups that you guys conduct are a great opportunity to hone the skill when you have the training wheels on, to use that metaphor, when you're not standing in front of 12 people with a lot of money on the line. But if we cannot tell a story, and believe me, every trucking case has a story to tell. It may be as simple as our truck driver is a really nice lady who took this job to support her family when her husband was out sick and she had two kids to feed. That may be our story, but we have to identify what it is. And I think we as the older generation of lawyers owe it to the younger generation to help them with the storytelling ability. Not that I'm any great storyteller, I've just had a lot of experience in what didn't work and have the scars to show…Don't try that argument.

Dr. Bill Kanasky

That's a good point. You know I speak at a lot of DRI events. I spoke at DRI Trucking a couple of years. I’ve spoken at TIDA.  Just a brief segment that's going to be on a webinar for the American Trucking Association. And they send out these programs for seminars, whether they be quarterly or annually. And this is a topic that's blatantly ignored. And I know other things are important, don't get me wrong, but I think there's somehow some way we have to get the message to each of these entities that attorney training is just as important. What I see in these seminars, Mike, is it's a lot of education about maybe changes in the industry, changes in technology, how that may affect litigation going forward. I don't see anything like, here's how to tell a story. Here's how to influence a jury. What are some of the things that we can do about that at the organizational level?

Mike Bassett

Well, I can tell you that as you know, DRI did a trucking primer in I think it was Nashville last year that was amazing. That was put on and there was a lot of focus on storytelling and I agree with you. I go to these seminars and sometimes fortunate to speak at them and we cover a lot of technical stuff, which is very important. Don't get me wrong, I want to know about GPS tracking and I want to know about hours of service updates and I want to know about these things. But I think there needs to be a substantial amount of time directed to how do you sell a case to a jury? What is your narrative going to be? I was fortunate enough to be trained under Jim Cowles and he always said, what's your story? What is your theme? And if you don't know, this is a case about blank.

Mike Bassett

If you don't know that, then for God's sakes, don't stand up in front of a jury because you've lost already. And I think that there could be more emphasis on the art of storytelling. And I just want to say one thing. A lot of people think storytelling and they think of something in a pejorative sense. I'm not talking that at all. I'm talking about going in meeting with your truck driver, not 30 minutes before his or her deposition, but spending days getting to know them, getting to know your trucking company. How did it start? How many trucks did they start with? How much money did they have in the bank when they started the trucking company? How did your driver get into trucking? Because oftentimes those are really good human interest stories that we need to tell. But if we don't spend the time getting to know our clients, whether they be the truck driver or the trucking company, I don't care how great a lawyer you are, if you don't know the narrative, you can't sell the narrative. So I think we do need more training on that.

Dr. Bill Kanasky

And I think that needs to start very early in the case. And let's talk about that. I've been doing this for 16 years and I have a lot, I mean, I work on over 200 cases a year. I don't have, 33 years of experience like you, but one thing I do know is this whole topic of nuclear verdicts, which has really jarred the trucking industry over the past several years; no one's really talking about, well now we're starting to do it and we're doing a lot of webinars and speeches and we just published a paper in DRI on how nuclear verdicts happen and how they can be prevented. I don't see enough resources being put into discovery. I think the very best work I do is putting the truck drivers, the managers, the safety directors through our deposition preparation system cause that can really derail a nuclear verdict or a nuclear settlement.

Dr. Bill Kanasky

Another topic no one's really talking about, I think there's a lot of nuclear settlements out there that can derail that early in the case and really get the defense a lot of leverage. What is your opinion on being very aggressive early in the case versus being reactive? Cause I gotta tell you I get hired on cases and they call and they're like, yeah, we got a trial in 45 days. I'm like, okay, well what's the demand? Oh the demand is $75 million. And I'm going, well, how were the deps?, Oh our people got reptiled, they got abused. And I'm like, well why? Well we just kinda, you know, we prepped them with our attorney. Can you talk a little bit about how maybe the level of aggressiveness, by the whole defense bar, but particularly the transportation industry really needs to change because if you're getting murdered in deposition, it's going to really hurt you in trial. Correct?

Mike Bassett

Yeah, it is. And so I think you're bringing up a good point. And that is this: I think it falls on the lawyers who are fortunate enough to represent the trucking industry that when we get a new case in, we get on the phone early with the decision makers and we talk about, okay, where are we? What venue are we in? Who is the plaintiff's lawyer? Where are our warts? If we know that our driver’s out of hours at the time of the wreck, let's talk about that early. Then we need to have a very clear discussion and a clear understanding with our client and the carriers, to the extent they're involved, and say, this is the time that we think we need to invest in this case and yes, it is going to be an eye popping number as far as a litigation budget.

Mike Bassett

We don't apologize for that, but here's why we need to do it. We need to spend five days getting our driver ready for a deposition. We need to spend four or five days over documents and sitting down with a safety person going through the file page by page. And the people paying the bills, understandably many think, man, that's a lot of money to which I say, you bet it is. Compare that with the amount of money the jury is going to be asked to award by the plaintiff's lawyer and it looks like a good investment, but I will tell you Bill, the onus needs to be on the lawyer hired by the trucking company because our job is to be a problem solver, not a problem creator, but we need to be sometimes the bearers of reality and say, guys, ladies, we can defend this case and here is what it's going to take. If you think it normally costs $150,000 to work a case up now until trial, we are saying it may take between four and 500,000 based upon the amount of work we think that we need to do.

Dr. Bill Kanasky

And that's really important. And again, the number one message which is really discouraging, particularly in the age of nuclear verdicts, is I walk off stage after giving one of these speeches or lately I've been doing the webinars and the first comments I get are, you know, well the trucking industry is really cheap. They're never going to pay for this. And I'm thinking, you're not going to spend an extra hundred grand to save multimillions of dollars? It just doesn't seem, and maybe it's just the culture of the trucking industry or maybe it's their profit margin, but I really think the nuclear verdicts will continue unless we nip this in the bud and nip it in the bud early. So I think maybe the effort needs to be put on educating the clients on the economics of what they're facing because I think if they keep doing it the same old way, I don't see any of the nuclear verdicts changing, do you?

Mike Bassett

No. I mean if we continue to do this the same way, we are going to continue to get the same result. And I come back to, it is our job as the lawyers hired by these trucking companies and that is our client. To have these frank discussions with them and say, folks, here's what we see this thing going. Because if we know fairly early on Bill, we know where we're weak and where we're strong. We know the venue, we know the lawyers that are likely to be involved. It is up to us to say what are we going to do to aggressively defend this case because that is the way, in my opinion, that you were going to get the best settlements. If the other side believes they are going to have to take a case to trial, you are going to get the best settlement. May not be a good settlement. You may not be happy with it, but it will be much better than the settlement you get when you have not been prepared and when you were running scared because momentum and tempo and control are what drives the value of cases. We as defense lawyers need to be better at taking the momentum and taking the control. And that starts day one with having very frank conversations with the decision makers and the people who are going to approve the legal spend.

Dr. Bill Kanasky

I totally agree. And let me give you an example of this, Mike. A trucking company in the Southeast that shall go unnamed, hired me last year and they said, Hey, can you come in and do your witness training seminar to our safety directors. I said, absolutely. I said, send me a copy of the complaint and I'll do a conflict check. And they're like, no, no, no, no, no, no, no, no. We want to do this before the lawsuit's even filed. I want my people prepared and I'm going to get into reptile theory in a second. He's like, we see these nuclear verdicts happening. I don't want to wait for a lawsuit to be filed to get my staff's head around what the plaintiff’s bar is up to. What do you think about that idea? To start as an industry and company by company, attorneys and people like me proactively getting in front of people we know are going to be deposed in the future at some point and start the groundwork for the proper education and training so when that lawsuit gets filed we're on second base, we’re not starting from home plate.

Mike Bassett

You know, I tend to agree and the trucking companies out there, the ones that know and have the history that they're going to be in litigation, I think it would be money well spent because now if you're a one or two truck mom and pop operation, no, I don't think it would probably be worthwhile. But if you're running 3000 units or 800 units or 2000 units across the United States; if I were a trucking company owner, I would look at it as an investment to helping my people be ready. Because the first time we talk about the reptile theory, the first time that we talk about deposition preparation should not be the first time we sit down with a corporate rep. That should be something they've heard before. And ideally they have; I was on the phone with a corporate rep by Zoom on Monday, getting him ready. Thank goodness he had been deposed before under the reptile theory. Thank goodness he had been prepped by folks before. So at least we had that starting conversation because the tough thing is when you get a corporate rep on the phone who may be a very smart person, a bright woman or a bright man, and you have to start explaining the reptile, you feel like you've just set yourself back two or three days.

Dr. Bill Kanasky

You're absolutely right. And it's been my experience the smarter and well-educated people, I think they're even more susceptible to reptile. I'll explain that in a second. But yeah, reptiles, really has its cross hairs on the trucking industry. You know, one of the challenges I have, which I'd love your opinion on Mike, is, when it's the J. B. Hunt’s or the Old Dominion's, they are very proactive in dealing with this stuff and they really got their heads on straight. But when you got the smaller trucking companies that have the very low SIR and rather than dealing with some internal head of claims or general counsel, you're dealing with an insurance company primary claims specialist that really has no emotional or personal ties to the company. They seem the ones that are, a lot of them, are putting the kibosh on expenses and spending money early in the case. How do you deal with those claims specialists at the big insurance companies that really don't have any emotional tie to the actual trucking company? They're just out to save money.

Mike Bassett

Right. And yeah, so that's where I come back to it's my job as the lawyer hired to represent the trucking company to get on the phone with that claims professional and explain, here's the deal, here's the venue you are likely going to be in. Here's a list of attorneys that will likely end up picking up this case. Here are some verdicts that have come out in that surrounding county or surrounding counties. I believe it is in my client's best interest and in your best interest that we think about this long and hard and we have to communicate. Bill, I will tell you every snafu I have had as a lawyer and trust me, they have been legion, can be traced back to lack of communication. You've got to be very clear. Here is what I am worried about and oftentimes in defense of my defense lawyer brethren and sisteren, sometimes we don't want to be the bearer of bad news when we go to a carrier and say, folks, this is a bad case and you need to be ready because, my God, we never want to be seen as weak.

Mike Bassett

We always want to be seen as the warrior. And while I appreciate that, our clients are hiring us for our experience and you can easily go to an excess carrier like I did yesterday on a phone call and have this conversation, we're happy to try this lawsuit. We would be more than honored to try this lawsuit. But my job is to make sure that everybody is aware of the risk. Everybody is aware of what I'm proposing. And I just want everybody signing off on it, because this is my concern. And then you've got to be that honest and that direct. And if people don't want to do it, Bill, there's nothing I can do about that, but I've got to be an advocate for my client. And if people don't want to hear it, that's unfortunate. But my job is to say, here's what I'm worried about because I get paid to worry about my client's cases so they don't have to, Bill. That's my job.

Dr. Bill Kanasky

Yeah. That's a disturbing trend that I've seen that's come directly out of the reptile camp, which by the way are, you know, we've been fighting them for 10 years on, not a weekly, but a daily basis. And actually with great success. And what really bothers me is that the reptile attack, we have debunked this. We have cracked the code, we have the formula to win. But it does, it comes at a cost. It does come at an economic cost. But I think the return on investment is so enormous that we have to get that message through. But a disturbing trend I'm seeing is these reptile plaintiff attorneys coming out, and they've been trained to do this, their initial demands are completely absurd. And the reason why they're doing that is because they know how the defense system works. So if there's a, realistically, let's just call it a $10 million case, well they're going to demand 50. Cause they know, what are the statistical odds that the trucking company and/or their insurance company's actually going to put the funds into defending this case appropriately. Why not ask for triple the amount? Have you seen this in the industry?

Mike Bassett

Oh, I've got a case right now where there's $120,000 in medical bills and the demand is 18 million. With a straight face, with a straight face.

Dr. Bill Kanasky

It's unbelievable. And that's catching on because I think they're fully taking advantage of the system. And so the only way to solve this problem is to fix the system.

Mike Bassett

Well, and also that means we on the defense side have to be, and I use the term aggressive, but I want to be clear about this. I think that we need to make a decision, we need to get with the decision makers and then we need to take the fight to the plaintiff's lawyers because they do not like it. I was presenting a corporate rep for a deposition a couple of weeks ago and they got the question, ‘wouldn't you agree with me that safety is priority one at ABC trucking’? And the rep said, ‘well, that all depends’. And the plaintiff's lawyer was like Linda Blair in the Exorcist, their head spun around, they could not stand that answer. The fact of the matter is, that's a fair answer and we need to let these plaintiff's lawyers know, listen, you're in for a fight. We are not going to roll over.

Dr. Bill Kanasky

You're right. And we've been doing this across the country again with great success, assuming that the insurance company gets us involved early. There's no better feeling than seeing that plaintiff's attorney's head starts to spin cause they're expecting the yes, yes, yes, yes, yes on their reptile script. And when they get a, ‘it depends’, ‘not necessarily’, ‘sometimes’, they literally have no idea what to do. And I like that feeling cause it really shows the effectiveness of the program. I’ve got to tell you a story. And something that continually makes me nuts and it's still happening because now with the Coronavirus, every company, every corporation today including trucking companies are sending out emails, they have commercials on and all these messages are, you know, we put your health and safety first. Public safety is our top priority. And then there's a story from a couple months ago before the virus. I walk into the headquarters of a very large national transportation company here in Florida that shall go unnamed. I'm in the lobby. Mike, guess what they have plastered across the wall? Safety is our top priority.

Dr. Bill Kanasky

It's plastered on their trucks. And I walk into the meeting and I'm like, what the hell is this? And they're like, what? I go, you're lobby. I walked out, I go, what the hell is this? And then it's all over their training materials. It's in their employee handbook. These are things, and this is, I think a lot of this Mike, it's the marketing department not talking with the risk management or legal department. What do you think about a push for the industry to not ignore safety, acknowledge safety as one of one of the many concerns, but if you're doing this, safety is number one, it makes the plaintiff attorney's job during cross examination pretty darn easy, doesn't it?

Mike Bassett

It does. And unfortunately we are having to sit at a table where it's already been set years before we got the case, Bill. I've got a case right now where the driver handbook from 2016, first sentence, safety is our utmost priority for you and the motoring public. I'm like, are you flipping kidding me?

Dr. Bill Kanasky

If that was true, if that was true, you'd never take the truck out of the bay.

Mike Bassett

Exactly. Cause we all know the safest place for a tractor trailer to be as parked up against the fence. Right. I mean, you know, no one's going to get hurt. So yes, we've got to deal with that.

Dr. Bill Kanasky

Because the plaintiff's bar has been all over it and it's working. And so I think some communication with the industry and the trucking companies, whether it be company by company or through DRI, to have this discussion. I think the problem Mike is that we have these discussions at DRI or TIDA or ATA, but who's not at those meetings; it's the corporate people and the marketing people that are the ones responsible - the legal department's not delivering these messages. I can assure you of that. How do we somehow reach the corporate executives and the marketing department to say, do you realize the disaster you're setting yourself up for? Cause I don't think they get it.

Mike Bassett

I think one of the best things to do is make disciples out of the people who have had to sit through the reptile deposition. Those are the people that are believers. And when it's done, then maybe we have the conversation. Listen, I mean this deposition is done and we're going to have to deal with that. But maybe say to them, I would encourage you to get back with the people at your company who craft your brand and do your narrative that these are the things that we are going to have to deal with going forward. I think we've got to have the people internally do that or to the extent that we have the ear of those people simply say, I try not to make it a habit to tell people what to do, especially when I don't know what it is they do, but maybe our point is to say, when you put this in folders and we put this in pamphlets and when you put this on your website, this is what it's doing for you in litigation. We wanted you to know and we would be happy to have a conversation with you about potentially making that different.

Dr. Bill Kanasky

And correct me if I'm wrong Mike, but I think because of the changed narrative here and finally the positive public perception of the trucking industry, I really think now is, I mean you strike when the iron is hot. I really think now, particularly over the next six months, would really be the time to make a huge push in the industry to get everybody on the same page to say, listen, think about it, in the last 50 years, when has the trucking industry had an opportunity like this to change their entire image?

Mike Bassett

Well, and this too, what are the juries going to look like post-COVID-19? And this is something we need to be thinking about. Bill, you talked about this the other day. If what I read in the paper is true, by people much smarter than me, you may have unemployment between 15 and 30%. For your next jury you're going to have people on that jury that probably 30 to 40% of them will have either had COVID-19 or know somebody that's had the Coronavirus or suffered through it. My question is, what is that gonna do for the case where somebody claims that a truck driver, you know, delivering hot dogs under enemy fire to the grocery store to make sure everybody is fed, bumped somebody and they have a sore back.

Dr. Bill Kanasky

Yeah. Where the sympathy gonna be there?

Mike Bassett

Exactly. And that's something I think we as the lawyers representing the trucking industry need to be thinking about. You have always got to be thinking Bill, which I know you do when you get involved in a case, what is my theme and what is this going to sound like in front of a jury? When we tried this case and frankly I don't know what those juries are gonna look like. Are they just going to be six person juries from now on? Will they be video juries? I don't know. But we as the trucking industry need to be thinking about it because I think we are going to be positioned in a place to be able to tell a good narrative to a potentially very receptive jury pool, Bill.

Dr. Bill Kanasky

And regardless of the jury pool maker, we have 30 years of jury decision making data and research and analysis that we help our clients with. I still think you need to test your case on a case by case basis within the venue. But I think the importance going forward of doing more jury research, post COVID-19, to see how, yeah, that’s going to cost money, but to understand what these new belief systems and attitudes are. Until you understand that, I think any type of tactical or strategic decision you're making as an attorney is pretty much a hunch at this point. Cause we don't know how jurors feel quite yet. And to get ahead of this, collect data, to figure out how are these jurors perceiving information now compared to before the virus, I think that's going to be vital going forward.

Mike Bassett

I agree with you a hundred percent and I think the testing to use that word that we see so much now will be very important because you're right. What I'm saying is purely a hunch. What I would like to do if I've got a case coming up to trial, I'm going to get a focus group together and I want to know what is the potential jury pool in the venue where I'm going to try this lawsuit. What are their beliefs and thoughts on these issues because those are going to drive what we do. And I think we do need to know it rather than just rely on a, well, I'm talking to my neighbor and this is what I think juries are going to do. I agree with you. We need more data.

Dr. Bill Kanasky

At Courtroom Sciences here, we're working very hard to collect that data. Mike, last topic and then I gotta run. I think this is also needs to drastically change how defense attorneys conduct voir dire. I cannot tell you how many defense attorneys when I go, well, what are your voir dire questions for this case? And they go into a file cabinet and they go, here, here's the ones I've used for the last 15 years. That ain't going to work anymore. We're going to have to author and construct very different questions now than we did previously because we don't know what these people's personal experiences have been through this virus, through unemployment, through being furloughed, through having to work from home. No one has any clue how they feel. And if you just go with your 2007 voir dire script, I don't think that's going to be very effective.

Mike Bassett

Oh, I agree with you a hundred percent. And I've thought about this. I think if I'm the defense lawyer when I get up the first sentences out of my mouth have gotta be a recognition that these are new times, new norms and let's talk about it. Cause if you were the lawyer that does not do that, I think you run the risk of jurors looking at you like, are you from Mars? Do you not realize what we're going through? So yeah, I think early on you've got to be the lawyer that stands up and says, ladies and gentlemen, I never thought I would be standing in front of 60 people again. Who here kind of thought the same thing and get the conversation going. You got to have the conversation, Bill.

Dr. Bill Kanasky

Absolutely. Well Mike, Mike Bassett, thank you so much for joining the program. This was very enlightening. I suggest we do this again sooner than later cause I know things are going to be changing rapidly, but please keep in touch and we'd love to have you on again,

Mike Bassett

Honored to have been a part of it. Thank you very much.

Dr. Bill Kanasky

No problem. Ladies and gentlemen, thank you very much for attending this version of The Litigation Psychology Podcast brought to you by Courtroom Sciences. This is Dr. Bill Kanasky signing off until next time. Thank you.