Episode #25 – Hot topics in trucking litigation

This video episode of The Litigation Psychology Podcast features an interview with Doug Marcello, Trial Attorney, Marcello & Kivisto. Doug and Dr. Bill Kanasky discuss numerous topics around trucking and transportation litigation including the challenges of preparing witnesses for testimony, particularly truck drivers and the ever-increasing nuclear verdicts and nuclear settlements,. They also discuss the implications on litigation of the increased use of technology in the industry, the ever-present reptile in trucking litigation and their views on plaintiff bar advertising targeting the trucking and transportation industry.

Full Episode Transcript

[0:04] Bill Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky here today, happy to have Doug Marcello. Doug, how are things going up in Pennsylvania? You’re one of the more controversial areas, that sounds like.

[0:18] Doug Yeah, it, you know, things are overall going well. There is, you know, a different type of approach by different people. A lot of pushback to what the governor’s doing, and a lot of public officials, law enforcement and public officials, who are taking an opposing view and not following with a cover story. So got the cross-section.

[0:45] Bill Yeah. So, Doug, you’re in the trucking industry, you’re a trial attorney. Can you, can you give us a little background about your professional career and, and how you got into trucking litigation?

[0:57] Doug Absolutely, Bill. We’re based in Carlisle, Pennsylvania, trucking center. Our firm, which is, we opened 15 years ago, focuses on trucking litigation. I’ve had cases in 35 states now, so I get around the country. Very active in trucking organizations such as the ATA. I’m on the board of the Pennsylvania motor truck, as well as the National trucking attorney organizations tied to transportation attorneys, those type of things.

[1:23] Bill That’s excellent. And it’s funny because as I was waiting to start this podcast, I have my TV on the background in mute and Prudential did a commercial and it says, you know, we support our heroes during this pandemic, and they show a doctor and they show a nurse. They did not show a truck driver. And some, but there have been some good feel-good moments lately in the press and some maybe some of the most positive PR that we’ve seen for the trucking industry. With these organizations that you belong to, have there been discussions on how to maybe capitalize on this going forward and so it’s not just a blip on the radar and you can get some long-term positive benefit out of this?

[2:04] Doug Limited. And I, and I think we need to do more because American Trucking Association does an excellent job in terms of the branding bringing it home, but until you see something like the conditions we have now, it really doesn’t hit home with the emphasis that, you know, trucking is the lifeblood of America and it is a vital component to why things get to the supermarket.

[2:29] Bill Yeah, and I work a lot in the trucking industry as well as a litigation and jury consultant and we’ve seen over the years, yeah, unfortunately there’s kind of this baseline negativity from jurors relating to the trucking industry. And it would be great to change that and hopefully, you know, somehow, and I think it needs to be industry-wide. I mean, I think probably you’re gonna see maybe company by company trying to get the feel-good message out there, but hopefully industry can come together to do that.

[3:02] Bill Can you comment about because one of the challenges I have in trucking litigation, maybe the number one challenge, is prepping these witnesses for both deposition and trial, particularly truck drivers, drivers. Can you talk about your experiences and, and, and some of the barriers that you face when trying to prepare these people and get them on board for testimony?

[3:20] Doug Yeah, you know, and probably like you experienced, Bill, the first thing I do is ask them if they have any questions because I have learned over 35 years I can’t fill a full glass. And I like to get it out of them because their mind’s focused on it. Then we go through and take them from, you know, I said look, if nothing else we tell that you know, the first thing and rule is tell the truth. You know, I can deal with a bad truth, I can’t deal with a good lie. And we go forward from there and then it’s a matter of reviewing with them among other things and not taking for granted that they know the trucking regulations because a lot of the folks for a number of years through different permeations, we just got a new hours of service rule yesterday, it changed to a slight degree but four elements mainly. But to go through and then to review the process with them so they know that. The biggest challenge, one of the biggest challenges I have to them is to ask them say, look, I, I haven’t seen where you’ve given a written recorded statement at any time, am I mistaken? They’re saying, “No, not at all.” I can’t tell you how many times then the driver gets in the deposition and says he gave a recorded written statement.

[4:29] Bill Wow.

[4:29] Doug Not accurate, but, but and I say to him afterwards, “where’d that come from?” Well they know I’m sure they, or they usually do that. Well yeah, so that’s the type of things to overcome on that and and I’ll do it you know now multiple times and still every once awhile someone will say that they’ve done so when it never happened, just on the assumption.

[4:47] Bill Yeah. Another challenge that I know we’ve all faced, the topic of nuclear verdicts and another a sub topic which again no one talks about this, nuclear settlements. I think a lot of those are happening. The trucking industry has really really just been clobbered is the word I’d use by nuclear verdicts, well-publicized particularly by the, the reptile folks coming after the trucking industry. Again, in your organizational meetings and internally at your law firm, has there been a lot of discussion on oh boy, you know this is kind of getting out of control, we may need to do some things differently to avoid these types of just horrendous verdicts?

[5:30] Doug Yeah and I think it’s a combination of things on that, Bill. In terms of organizations, yes. I’m on the Advisory Council for ATRI, American Trucking Research Institute. One of the studies that should be coming out shortly is their study on nuclear verdicts and some of the background on it. It has been a topic get a lot of the meetings and organization presentations as well. But one of the things, you know, one most successful basketball coaches was John Wooden and every year he would start no matter how many stars his recruits had, with sort of the fundamentals. And even had a lecture on how to put your socks on to avoid blisters every year. And I think Bill, you know, it’s the nuclear verdicts start with a failure to follow the fundamentals. And I, and I think in some of your writings and and your co-authors, you know, you start with the McDonald’s verdict and when you look at the fundamentals it becomes understandable and it’s not just a spilt cup of coffee that someone was surprised to be hurt. There’s a lot of other things that went into that and I think you do well in your writings to point that out.

[6:41] Bill Thank you, we are trying our best. Another topic that’s come up recently in our podcasts is something that’s really evolved in your industry over the last twenty years is the use of technology, which I see as a double-edged sword. I, I think it’s obviously you know GPS, the use of meteorology, the, in the, the cameras, the, the dash cameras, things like that, that’s been a huge help to the industry. However, in litigation obviously sometimes this can, can work against you. How do you see is technology really a double-edged sword when it, when you’re talking about litigation and showing these things to jurors?

[7:19] Doug A, a couple different aspects of it. The first is the dash cams and you know when I first caught wind of those 10-15 years ago I thought, gee, you know the last thing I need is another piece of evidence for a proctologist to come back, you know. But you know here’s the deal Bill, you know I’ve come around to think look, we get blamed for everything anyhow, we might as well have evidence to show the ones we weren’t at fault. I haven’t seen a study but anecdotally most companies it’s four out of five exonerate the company go on that. Now the other side of the data is there used to be a client I had who said that he was in a finance business, he just happened to have trucks that were the component of it. Well now I think most of our companies are in the data business and it’s just a matter of the trucks are the vehicle that they use as part of their business. They have so much data that they are akin to drinking from a firehose. And I think the key is identify what is the key data that is going to be your key indicator, monitor it, I then follow up and make sure that you apply it.

[8:31] Bill Excellent, excellent information. Let’s circle back to the reptile theory. I haven’t seen this slowed down at all, particularly in your industry. I’m gonna tell you a story. I went, one of my clients is a very large transportation and trucking company here in Florida and about three months ago back when we were allowed to travel and meet face to face, I had a meeting to prep witnesses, I was prepping four different witnesses over four days. And I, I walked into the lobby and guess what’s plastered across the wall? “Safety is our number one top priority.” Like, you know, huge, took up the whole wall and then I walked into the office and I’m like what in the world are you guys thinking? And they’re like what are you talkin’ about? And I showed them like what are you doing? And then I find out it’s all over their website and it’s all over their materials. What types of discussions have you had with your client? Cuz some of these websites make me cringe, Doug, too. And this stuff will come up at depsoition and savvy plaintiff attorneys they will print screen, print screen, print screen off of that website and then they get into your materials. What types of discussion is there having with clients to say stop?

[9:43] Doug One of the big things is and you know we hear a lot about the reptile. The other thing is the rules of the road concept that is out there as well and a lot of it starts with company manuals, other materials, and we understand that you have the very well intended goal of safety and the necessity of doing this. But at the same time you’ve got to go back and think in terms of what is going to happen at the time of litigation and how that’s gonna play out. And you have set a rules of the road in terms of this is what is impermissible behavior, this is what is negligence by your own definition, you know. So I think that’s a lot of it there. Then you go on and it’s the same thing in the discussion and I know internally Bill a lot of companies, largeer companies that have risk divisions again trying to weigh out that notion. And you talk about on the walls and on the websites, you know there are 10 foot high billboards on the side of their trucks, you know, many times saying the same thing. So you know it is, it is a challenge and it is something there that you can hear about time and again as you well know from your deposition work that you do.

[10:52] Bill Absolutely. Doug, last question then we can wrap up. The impact of plaintiff attorney advertising on, on your industry. Because I was driving, again you know back, back when we were, we were working and traveling, there’s a very dangerous stretch I know you’re familiar of between Indianapolis and Chicago i-65. One of the busiest that’s around. And my wife told me when we lived in Chicago she’s like, you’re not making that drive anymore. You could, there’s, there’s a 40-minute flight from O’Hare to Indianapolis. It’s too dangerous. And I witnessed, actually witnessed several trucking accidents, trucks turned over, very, very dangerous. The billboards on that stretch, 80% of them are plaintiff attorneys and the other twenty are hospitals or you know Jesus loves you. How do you, how do you combat that? Because whether it’s on TV or on these billboards and many of these the, many of these Doug are not just like, hey I’m a plaintiff attorney call me, it’s if you’ve had an incident with a truck, call me. What is the industry been doing to combat that? Because I think I see those ads multiplying.

[12:07] Doug Yeah, and you’re exactly right Bill, because what we run into trucking is the mantra of hit a truck get a check. And they look at our trucks as being 18-wheel ATM machines. So you know you see that. Now one of the interesting things is what I encounter in more rural areas in particular is where those attorneys with those billboards come into court, the jurors have the perception of who they are and how they practice. You know, well gee that guy, you know, what has kind of gotten me is the similarity between some of these ads that these attorneys are doing and what casinos are doing. And I think we live in a society in which money has become devalued or there’s not a source of money, it’s just, it just, it just comes, it just happens, we can just get it. And I think that’s some of the, some of the interplay that we have on that. But you know one of the things that goes back to the nuclear verdict goes back to these guys, it’s the fundamentals. You know, and I think as you’ve said in some of your other podcasts: respond, know what you have to do, anticipate it’s going to come and be sure you react right away and get on it and do what you need to do on that. And I think that’s one of the principles you’ve been preaching on that.

[13:25] Bill It’s so important because I, what I, a paragraph of my nuclear verdict paper talked about Mike Tyson. Tyson you know won ninety percent of his fights in the first round cuz he came out swinging. And if you’re in a 12-round fight and you start throwing punches in round nine, you’re not going to win the fight. So I think really important that we be aggressive as a defense bar, be aggressive early and, and not be reactive, be proactive.

[13:57] Doug Yeah and you know I thought you got to say the, the great philosophy of Mike Tyson: everybody’s got a plan until they get hit

[14:04] Bill Until they get punched in the face, everybody. Doug, thank you so much for being on the Litigation Psychology Podcast. Please keep in touch and let us know if you need anything. We can do witnesses virtually so let me know.

[14:12] Doug Perfect thank you so much Bill.