Episode #17 – Witness challenges in trucking litigation

This episode of The Litigation Psychology Podcast features CSI Litigation Consultant Dr. Steve Wood discussing his experiences with preparing trucking and transportation industry witnesses and the dangers of reptile attacks in trucking witness preparation. Dr. Wood also offers his insights on how juror perceptions of truck drivers and the trucking industry may shift in light of positive COVID-19 PR, what the impact is of plaintiff bar advertising in the trucking industry and the distinct advantages of engaging with a litigation psychologist before depositions occur vs. after.

Full Episode Transcript

[0:04] Bill:
Litigation Psychology Podcast brought to you by Courtroom Sciences. Got Dr. Steve Wood out of—where you at—College Station Steve?

[0:10] Steve:
That’s right, College Station, Texas.

[0:13] Bill:
What is, what is the word in College Station these days, the un-shut down, or can you actually walk around without a mask?

[0:22] Steve:
Well right now the masks are optional, so I tend to wear one, but I know other people don’t. And we could go all day and spend a whole podcast about whether or not you should or shouldn’t wear a mask. I know I’ve seen articles on whether you should and shouldn’t, so I know it’s a contentious issue in general.

[0:40] Bill:
Yeah, and once the court system starts to open back up, I’m anxious to see, are we gonna have twelve people in the box wearing masks, or are the attorneys—I don’t know what’s gonna happen.

[0:52] Steve:
Yeah, it’s strange. It’s strange to watch. I see the Houston press conferences with the police department all the time, and it’s strange to see everyone in the audience and all of these people speaking to have these masks on.

[1:00] Bill:
Absolutely. Well today on this podcast, we’re gonna talk a lot about trucking litigation. Now I want to adjust my camera to make sure that our audience sees that I am wearing these superior—just to say, you know, I won’t tell you about the head-to-head record with the Tar Heels and the Spartans in basketball, but something tells me in football you guys may probably put a beatdown on us.

[1:32] Bill:
So Steve, you’ve been involved with Courtroom Sciences for a couple years now, and you and I have worked on several trucking matters. These seem to be—any type of trucking case we work on is usually a devastating, catastrophic type of case with either catastrophic injury or death involved. Can you talk about some of the challenges on a couple fronts, preparing witnesses for either deposition or trial, particularly in the trucking industry, can you talk about your experiences with that and how that is not such an easy task right?

[2:07] Steve:
No, it’s not at all. And I think if I were to look at training witnesses across the board, I always find that training witnesses in the trucking industry is one of the more difficult ones that you have a challenge with. You know, training truck drivers and training them to try to get them to understand at least the concepts that we teach, and then when they roll into talking about reptile theory and what reptile theory does, and word games and all of these different things, it becomes really challenging for these truck drivers to understand the concepts.

I find myself a lot of times going a lot slower and making sure that everything makes sense, and that the witnesses are clear on the concepts, which sometimes for other witnesses is easy, and then for trucking it takes you a few times before it really sinks in.

[3:03] Bill:
And then some of the challenges with jury research, focus groups, mock trials—it’s difficult to put these projects on in front of jurors when you’ve got that day-in-the-life video, a lot of sympathy involved, and prior to COVID-19 a lot of—I don’t know if I want to use the word hatred—but a lot of dislike towards the trucking industry. What has your experience been with mock jurors related to how they feel about trucking companies, number one, and then number two, as we go forward does that change at all? Do they get a little bit of a free pass because of the positive PR from COVID-19, they’re being called heroes, or is that going to be something very brief?

[3:46] Steve:
So to refer to your first point, I think yes, it’s been extremely interesting to see the reactions to jurors prior to COVID. Our mock jurors tend to have negative opinions of truck drivers. A lot of times, if you talk to them, almost all of them have some sort of experience where they’ve said, I was either cut off, or I got stuck behind a truck driver, or I tried to get in front of one, they wouldn’t let me in.

I mean, there’s just a slew of stories where people talk about it, and then there’s some people that have even said, I’m nervous even being next to a truck on the highway, so I either slow down or I go faster to get past them. So there was a lot of people across the board that were nervous and anxious around truck drivers.

I think Post-COVID, I’m interested to see what’s gonna happen. Like you said, the idea that they’re being hailed as heroes, I think it’s gonna be interesting to see how long that goes. A lot of times, you and I know society has a short memory span, so they might have this little blip where people are really supportive, but then I could see it where it would also go back to where people were at before, and I think that’s gonna be interesting.

We’re actually doing some research right now to look at what people’s opinions are across several different areas of industry, what they were before and how they feel now post-COVID, and trucking is absolutely one of those that we’re gonna look at to see how people’s opinions have changed.

[5:15] Bill:
Speaking of the trucking industry, as you well know, the whole notion of nuclear verdicts—it may perhaps that’s hit the trucking industry harder than any other industry. I think there’s this nasty combination of factors: number one is high publicity of these verdicts, they’re plastered all over the internet, over every newspaper, plaintiffs firms are putting them on their websites, combined with this level of aggressive marketing that I have never seen before from the plaintiffs’ bar.

I don’t know how it is in Texas, but here in Florida and many other states, you drive down the expressway, every fifth billboard is gonna be a plaintiff attorney, and probably one or two of those are specifically geared towards trucking litigation meaning hey if you’ve had an issue with a truck or you’ve been hit by a truck, call A, B, or C law firm. How do you feel that the advertising by the plaintiffs’ bar has infected, mayve impacted some of these verdicts?

[6:31] Steve:
I think the plaintiffs’ bar has definitely done a great job of advertising. It’s funny you say that, actually just two days ago I saw a commercial for a plaintiff attorney that was strictly about trucking. The commercial was him essentially him standing in the middle with all these trucks in a parking lot zooming by him on these four corners, and he’s standing in the middle as the savior, the big defender of individuals against the trucking company. I think he called himself the sledgehammer or something.

They’re very, very aggressive, and I think that aggressiveness, coupled with the reptile tactics, coupled with the fact that people are probably going to be in a higher emotional state post-COVID, we’re gonna see verdicts going much higher than they were before already. But to your point, absolutely, I’ve seen that the trucking company has the area that’s been hit the most by these reptile verdicts and by these nuclear verdicts more so than any other one.

[7:37] Bill:
Yeah, and reptile is not going to go away anytime soon because it’s so highly effective when the defense does not counter it. Thankfully, we’ve put a lot of work into the tools to not just stop reptile, but really defeat it. You can beat it every time if you do the right things.

Talk about some of your experience, and I know you’ve been put in some terrible positions by me, usually because I’m getting a call from a client, I’m not available, it’s on short notice and I send you off on an airplane to cover something for me. When you get involved in a case very late in the game versus early in the game as a litigation psychologist, how does that affect your ability to do your job?

[8:21] Steve:
It becomes extremely difficult. A lot of times we get brought in after a deposition has gone bad, and then it’s please help clean this up. When we see the deposition video, they’re making errors left and right that make it extremely difficult to try to clean things up.

The best thing you can do is work with the witness to try to project themselves a little bit better at trial, speak a little bit better at trial, and understand the concepts a little bit more, knowing full well though you have that bad deposition testimony looming over your shoulder the whole time. It can be pulled out at trial at any time. So, I find it to be extremely stressful to try to be brought in late.

A lot of the cases I’ve been brought in late on, to try to even clean up witnesses, end up getting settled at the end or right before the beginning of it, excuse me, because they don’t want to risk putting the witness on the stand because they know the deposition testimony was so bad and they just don’t want that to come out at trial.

[9:24] Bill:
And then you have what we call the nuclear settlement, which I think is happening all the time and not getting enough recognition. But yeah when you have those bad depositions and then you’re stuck with, you know, there’s one way to get rid of a plaintiff attorney: get the checkbook out and he or she will go away if you write the big enough check.

One phenomenon I’ve come across prepping trucking employees, particularly drivers, is that a lot of drivers don’t trust attorneys in general and sometimes don’t trust the legal team. You don’t always get the honesty you need from a driver when you’re putting them through the deposition or trial preparation process. What’s your experience been with a driver coming in, and probably the worst is the former employee, that’s probably a whole new podcast right there, but when you have driver come in witnesses don’t just automatically trust the legal team do they? And that leads to sometimes resentment or maybe just they’re gonna hold back on the truth and then you go in the deposition and they drop some bomb that you never knew about. How are some way attorneys  can maybe warm up to truck drivers before firing mock questions and documents at them in the prep sessions?

[10:56] Steve:
I think one of the biggest things that I found to be useful is to even kind of let them have somewhat of a catharsis or let them to just kind of talk about how are you feeling about this are you upset what are your concerns what are areas that you’re concerned what are some questions that you’re concerned about.

I think the biggest thing that gets lost is that you forget that these witnesses are human and they’re going through these stressful times and that going into deposition is already going to be more stressful based upon the fact that they already know they’re in the lawsuit now they go into this stressful deposition.

I think there needs to be an understanding of the human factor and just an understanding of getting the witness comfortable with the attorney to share that information without really without any judgment or feeling the fact that they’re going to be judged or feeling the fact that they’re gonna be questioned even if it’s a bad fact or it’s something negative to the case.

The attorney is gonna have to know about it and they just need to feel comfortable with the attorney enough to do it and like I said the biggest way to do it is just be a little bit empathetic to the witness and understanding or having the consideration of what they’re going through at that time.

[12:03] Bill:
Yeah and a lot of these accidents are catastrophic I’ve seen some PTSD types of symptoms and heavy anxiety because of the memory of a bad accident and that’s completely normal but if those things aren’t addressed up front with the driver I think the prep sessions can largely be ineffective because massively that’s just not emotionally capable of learning the skills that we’re trying to teach them right?

[12:31] Steve:
Yeah and I think that’s where I’ve found the biggest success is when you can tell the witness is comfortable with the attorney the witness is comfortable with you. I just think the sessions go so much smoother so much cleaner and the witness just feels more comfortable going in the deposition and the witness feels more comfortable with the information that you’re giving them. It’s just all around I mean for everyone.

[12:51] Bill:
Makes total sense. Well Steve thank you so much for being on the podcast we’re gonna do more and more of these and I know when you start collecting data, juror data on Covid 19, we’re gonna want to jump on here.

[13:00] Steve:
Yeah all right take care.

[13:04] Bill:
Alright thanks.