Trucking defense attorneys Shane O’Dell and Larry Hall join hosts Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. to talk through several topics in trucking and transportation litigation. They begin by discussing the devastating illegal U-turn trucking accident in Florida resulting in multiple fatalities and the political fallout due to immigration issues with the driver. The group talk about how to address this horrible accident in jury selection and how to solicit honest perspectives from jurors about the trucking industry in order to identify biased jurors. Next the group discuss the need for the defense to be less reactive and to become more proactive and how to help clients see the value in starting early.
Shane and Larry talk about the benefits of conducting early jury research, even pre-suit, and how finding hidden and unexpected vulnerabilities early is incredibly valuable in figuring out how to handle the claim or case. They also share how jury research is highly useful in protecting the defense team from confirmation biases that may be clouding their perspective on the case. Lastly, the group discuss the complexities in litigation when there are multiple defendants, how the attorneys manage co-defendants, and the best ways to conduct jury research when you have co-defendants.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, Dr. Steve Wood. Steve, what’s shaking?
[00:22] Steve Not much, man. Happy to be here. Glad to see these these two fine gentlemen.
[00:28] Bill Two of our favorite guests. Frequent frequent flyers on the Litigation Psychology Podcast. Uh, uh, uh, I don’t even know these guys’ names, but because I look at my phone and my phone’s just lit up with their, uh, um, you my caller ID just like Shane, Shane, Shane, Larry, Larry, Larry. Right. Shane O’Dell, Larry Hall. Uh, Shane. Uh, is is it this like is this still 150 degrees in Fort Worth or are you finally getting it? Has it like got down to 140 yet?
[01:00] Shane Let’s see. We had a cold front come in uh last night and so it it looks like I have my background blurred, but it’s actually raining right now, which no one no one here knows what to do. Took me like two hours to get to the office.
[01:16] Bill Yeah, and in Florida here it’s it’s like gone down by two degrees, which hey, I’ll I’ll take it. Larry, up up in St. Louis, uh, despite the Cardinals, uh, how are things going up there?
[01:27] Larry Things are going great here, Bill. The the sun is shining bright on the great state of Missouri because we have a quarterback in Columbia, Missouri, and the SEC should be on notice that my Missouri Tigers are coming.
[01:41] Bill Wow, that is a that’s a bold that’s a bold statement.
[01:46] Steve He’s coming in hot this morning.
[01:47] Bill He’s coming in hot with the dark horse. Now, I mean, let’s announce it now. You know, as you know, this this podcast will probably post, you know, three weeks from now, but uh just so everybody, you know, we’re we’re we’re this weekend um will be the open. So, by the time this post, a lot will have happened, but uh jumping back into college football and then NFL right after that. Uh life seems to be going back to normal, kids back in school, have most of my life back. It’s really I mean, is there Steve, is there a better time of year? I I’m not so sure.
[02:18] Steve No, I don’t think so. College football and we’ll have NFL football and we’ll have football basically almost every day of the week.
[02:24] Bill I mean, I was when I was growing up, guys, it’s like opening day of baseball, right? Especially like in the 80s. I I mean, that was like something really special. I got to tell you, opening week of college and I’m not talking the week zero stuff. I’m talking week one of college football. I mean, Larry Shane, is there is there a better is there is there a better time? I I’m not so sure.
[02:44] Shane No, this is best time of year except for if you’re a Cowboys and and still a suffering Mavericks fan now that they’ve traded away every superstar that exists for both teams. So that it’s kind of rough for Mavericks fans.
[02:59] Bill It’s unbelievable. You know, the four of us could just start a separate podcast just to talk about sports. I think we’d get some hits on this. I mean, these four genius minds.
[03:09] Shane I’m with you. I’ve got some hot sports opinions, too. Probably not very popular but isn’t that what drives views and and uh likes?
[03:17] Bill Yeah, we need we we need the we need the contrarian uh views. Now, um let’s go. We’re going to dog pile on um Chris Turney who who text me an hour ago and said, “Hey, I I can’t I can’t come on the podcast with the panel today. I’m being interviewed for on a radio show, blah blah blah blah blah.” And my first response was like, “What? What a loser.” I mean, wait, you’re gonna you’re going to skip out on the litigation psychology for a local radio station? Come on. I mean, that what a bad call. I’m kind I’m kind of offended.
[03:48] Steve He could have done that interview here. Just invite them on to the podcast.
[03:53] Bill Yeah, it would have been—We could have did a free-for-all there. But speaking of free-for-alls, we’re going to cover a lot of topics today. A little bit of potpourri. Uh, I was on Road Dog Trucking, uh, XM Sirius channel 146, uh, recently and alls they wanted to talk about. Um, I was on there for about 30 minutes. Great interview. It was fun. Had some callers, had some truckers call in. That’s always interesting to the show. Their nicknames are hilarious, right? Uh, and uh, Joe Bob Joe Bob from Oklahoma and he called in, “Hey, Dr. Bill.” Well, it was is is pretty cool. But, uh, they only want the host, uh, Mark Willis only wanted to talk about this uh, one terrible and sad, but also kind of crazy. Um, U-turn trucking accident uh, here in Florida and Fort Pierce all over. Yeah, trucking accidents tend not to make national news. They’ll make regional news. Um, in fact, I remember the one, you know, Shane, down down your way, the case I worked on, that massive like what, seven trucks, 76 car pile up in the uh ice storm uh about what, four or five years ago down there that made national news for about five minutes and then it’s on to something else. But this one’s different, right? Because now you got now you got the politicians in because there’s this, you know, immigration issue. And uh I kind of referred to on this like like this could be like the 9/11 for trucking cuz I don’t think this case is going away. Shane, uh well once you saw that and the the the dash cam video, the video is pretty graphic in this case. You got three people dead. I don’t think this is your typical trucking accident. I think I think this one’s sticking around because of the politics behind it. And I don’t think this is a good thing for the industry because I think you’re going to see this over and over and over because you got you got a criminal trial that’s going to happen. This thing’s going to stay in news for a long time.
[05:51] Shane Yeah, I agree. It’s uh it it’s a horrific accident. It’s one of those typical uh moves that you see uh in these catastrophic accidents, the U-turn, which a lot of companies and the industry’s come out and said, “Here, we’re not doing U-turns.” A lot of them have. Um, and so you’ve got that added element and that’s probably enough with the fatalities to make it of regional or statewide importance, but then you’ve got the political climate kind of dovetailing just all of the things coming together, totality of the circumstances. This thing’s not going away for a long time.
[06:27] Steve I’ve seen a lot of vitriol on social media for it too, right? That we don’t typically see in trucking cases.
[06:33] Bill Oh, it’s it’s like on X, right? And I’m sure it’s on the other platforms. I mean, you you go right to the comments section. It’s like, “Oh, God. This is this is not just a black eye. It’s it’s a big black eye.” Larry, when when when you saw when you saw this accident, when you saw the dash cam, and then you saw the not just the public response, but the political response, what are your thoughts on how this impacts the industry as a whole?
[06:59] Larry I think um it’s something that we all need to be uh thinking about in our cases. I have a a couple on my desk right now where were blocking the road for one reason or another. Not a U-turn, but but were either backing or or turning or doing something where we’re blocking the road. And it’s just I think you need to be aware that if the plaintiff’s counsel is awake, uh they’re going to they’re going to try and and use trial themes and and bring into the case this this Florida accident because I agree it is it is so egregious and and you know the the reptiles old news now, but a lot of those principles still apply and you know the the way to protect against this dangerous industry that kills people when they block the road is by these huge verdicts to put them out of business and and you know make them take um safety seriously. And I I totally agree with Steve. I mean the the fire is not only on the media but but LinkedIn and and other places in the industry as well. I mean it’s just uh uh burning hot as ever.
[08:01] Bill Yeah. And it’s one of those things where you know you can see that especially from the plaintiff’s bar saying when is this industry going to learn like what is it what what is it what is it going to take? Um, so this is not a good thing and I think this is going to be a slow and and long burn because uh again you’re gonna have uh anything uh with the criminal aspect of this uh is absolutely going to get major news headlines. Um it was funny. It’s like if you go like if I just went out in Florida or any if I went in any community and said, “Hey, do you remember that really bad accident in in Dallas Fort Worth with the ice storm and the 76 car pileup and the the and all the what seven fatalities?” How many people are going to say, “Yeah, I remember that.” I don’t think too many. Right. But, you know, fast forward a year from now and you ask the same question about this accident. I I think you’re going to get a lot of people like go, “Oh, yeah. I saw that. It was terrible. I saw the politicians, you know, trying to, you know, make something uh of that.” I think it’s going to be in there. Now, Steve, I think going forward, I want I want to hear from everybody on this, but Steve, I want to start with you. For any any trucking or transportation trial coming up, if you’re a defense attorney, like, don’t you got to bring this up in jury selection? Because I mean if you just leave this alone cuz it’s a hot button issue and you don’t want to get but like if you don’t ask about it like it’s how you don’t know how many pe—I mean what what do you think?
[09:37] Steve Yeah it’s a risky. Yeah, you definitely have to ask about it because it goes back to what we talk about you know all the time when we do trucking litigation and I think you know Shane and and Larry can both agree is that there’s definitely a public perception about the dangerousnesses of 18 wheelers. There’s a public perception about trucking companies and it’s already kind of negative um as it is and I think this is just going to be one more log on the fire but I think you got to bring it up because you want to be able to get jurors perceptions because I think a juror who gets scared around big trucks thinks that they’re essentially reckless and dangerous that’s definitely a juror you don’t want anywhere near your jury.
[10:15] Bill Now let’s talk about this how can the defense turn the tables in their favor, right? Let’s take a step back here cuz I think with any negative you can turn it into a positive. So, remember what happened here. So, this guy and now there’s not just the dash cam video but then you got the police body cam video and then they like what they asked him 12 questions in English and he can only answer two of them. Then they give him a roadside test, and he got like 20 or 25% of the questions on the roadside test. Right. So, you got this language barrier illegal immigration thing, but also it turns out it was California and Washington, I think that certified him for CDL’s, right? Um Larry, if if you’re the defense, can you turn this into the favor to essentially take the political angle to say, listen, yeah, and the this company and these states, right? In other words, put it like put the spotlight on it of in certain areas these things are not handled well and it needs to be addressed but my client doesn’t do this. My client does it the right way and are you willing like in a jury selection type of way to say because remember you got a comparison effect now, right? So, if you just left it alone, jurors could think, well, god, you know, this whole industry is terrible. Where maybe the defense can say, well, no, like with any like listen, Steve and I work on medmal cases. There’s bad doctors, there’s bad nurses, there are [__] hospitals, right? And you can turn that in your favor by saying, “Hey, no, we’re different. We we do things uh we do things differently.” Larry, what are your thoughts?
[11:58] Larry I actually was was thinking, you know, what a what a powerful tool to use during jury selection right now, right? It’s an unfortunate stain on the industry, but you bring this up during jury selection and you’re paying attention to how people react. Uh I I I think people are going to put their cards on the table in terms of how they feel about the industry and you should be able to generate some wonderful discussion from your panel. That gets to those beliefs and attitudes that you’ve talked about before, Bill, on this podcast where where the anti-truck in discussing this because if you’re anti-truck, you’re going to want to talk about this in the industry and and and and you’re going to have to and so in my view, Bill, you let that conversation play out with jury selection. You figure out who your strikes are going to be. You do what you need to do to get the cause that you can get and and and then you do the comparison, but but you’re going to hear different facts in this case and and are you going to are you going to be willing to consider and you start to and you start to to lay that groundwork early and and so I would say that would be using this offensively.
[12:59] Bill Yeah. So, Shane, again, what we have here is the ability to ask jurors. So, you expose the accident, right? Remember remember my rule in jury selection. If you want to prevent a problem, expose the problem. Get it out there and then start asking questions of, “Do you think all truck drivers and all trucking companies are this egregious or is it just some bad apples like every other industry?” Right, Shane? There’s got there’s there’s definitely a way. And then particularly if you have a case where you’re pretty solid on your policies, procedures, your hire particularly, it’s a big hiring practice, right, and supervision thing. You can you can maybe turn this to your advantage to show that your client um is is much better than some of these one-offs that that actually don’t do it the right way because I think if you just run away from this problem or you don’t even touch it like hey I don’t want to touch this this is this is a nuclear bomb I don’t want to get anywhere near it could get out of hand right.
[13:58] Shane Yeah absolutely I I think that this is going to open the door to more cause strikes potentially because people that would have been quiet you know the the jurors on the panel that don’t say anything are the scariest ones. You don’t know what to do with them, right? So, you got to get people talking. This issue, getting national news, this accident is going to create a lot of feelings in people that may not have said anything before. So, you know, you hope that by opening up the dialogue and talking about the story, you’ve encouraged more people on the panel to discuss it. Then you’ll know who you can and can’t strike for cause or if you can’t get them for cause, you’ll at least know where your strikes are headed.
[14:36] Steve You know, I think one other thing I want to talk about on that and get your thoughts um Shane and Larry is the idea is a lot of times when we ask these tough questions, these difficult questions in voir dire. I mean, I think from a social psychological standpoint, I think there needs to be understanding, you know, kind of the idea of social desirability bias where jurors are going to say things that, you know, they think you want to hear. So, I think another thing from the defense perspective because you’re asking this question basically trying to elicit them to say I don’t like the industry or I have problems with the industry is you have to be aware of the fact that they may do that and they may not be fully transparent with you. So, I want to get your guys’ thoughts about how you handle that, knowing jurors may not be honest and open with you and how you kind of normalize the fact that if they don’t like the industry, even though you’re the attorney for the trucking company, to make them feel comfortable to tell you, “Yeah, I don’t like the industry and I know you represent a trucking company,” versus trying to just play like, “oh, no, I don’t have any problems with it.” When you know that they really do.
[15:35] Larry So, I would say in my opinion, Steve, it’s a it’s a moment to be authentic in front of the jury and and and to lean into kind of like I like I’ve talked about before with with you and Bill, you know, my love for the trucking industry, I’m unapologetic about that. And as someone who loves this industry, this makes me mad. This pisses me off. This was tragic. I’m a father and and it’s heartbreaking what happened down there in in Florida. I think it’s a moment to really connect with the jurors and say, “Look, I love the industry, but but this is something that made me mad.” And you know what? I’m so mad about it. I don’t know if I could sit on a panel today because it makes me angry. And if you’re feeling that way, you know, let’s talk about it because because it’s important to be authentic to decide if you’re going to be the right juror for the case. I don’t know if I would be the right juror for this case right now because I love the industry so much and this made me so mad. And I think it’s a way to to to open the doors. Um like like uh Shane talked about.
[16:34] Shane Yeah. I think that that’s exactly what you have to do. Embrace the bad. You know, it’s like we love our kids. They all they make mistakes, right? And so, you’re not maybe proud of everything your kids do, but you still love them through it. So, we love the industry through these bad accidents and these things, but you’re right. This is a great opportunity to kind of bear your soul a little bit and get the jurors to feel comfortable responding to you even though you do represent a trucking company and love the industry. Plus, you got to listen when the plaintiff’s asking questions, too. When your plaintiff’s lawyer’s up there asking questions, they probably don’t have that social desirability bias. And so, if you’re not listening and paying attention to their answers, then uh then you’re not going to know whether you’re going to get a different answer or not.
[17:19] Bill Yeah. All all great points. Um again, tragic accident and again I don’t think this is going away anytime soon because I think um you know politically uh it’s it’s it’s fuel for a lot of a lot of um fire and I I think that this is going to be you know from a jury perspective it’s going to be something that’s going to be in the news a lot. Um, and so if you’re a defense attorney, it’d probably be in your best interest to to bring this up during jury selection because if you don’t ask, you could have some jurors that that are really angry about it, right? Uh, and they’ve seen it and they’ve watched it over and over. Um, and if you’re not asking about it, you’re not going to you’re not going to know. So, um, sad that we have to talk about that accident, but it is what it is. It’s going to be around. So, keep your head on a swivel. Um, let’s transition. You know, one of the themes that we’d like to talk about here, uh, Steve and I like to talk about is just the whole, you know, theme of the defense being more proactive in litigation as opposed to to reactive. And that’s why we have, um, you know, Larry and Shane on today to talk about, you know, kind of a from the trenches uh, sort of perspective. And this is you know we want to hear from Shane and Larry on some of the things they are doing uh you know to be proactive in certain areas uh particularly early in the case but then also want to get a sense for um you know client you know reactiveness uh to that you know there’s some corporate clients out there both corporations and insurance companies that that have made quite the transition they have kind of woken up they’ve changed philosophy they have figured out there’s there’s a better way to do this. But but then you got a proportion of clients that essentially I still Steve and I joke it’s like there’s it’s it’s 2005 they’re still they’re still running the wishbone. Everybody else has run the spread offense. They’re still running the wishbone expecting to win the game. By the way, if if you ever have to go up against like army or navy or air force when they’re running the wishbone that’s no joke, right? But like no one else runs it. That was a 1980s 1970s, you know, type of offense. you know, things have changed and you and you have to evolve. Shane, um what are some of the things um and areas that that you personally but also maybe your firm because I know you guys have, you know, firm meetings and and partner retreats where you’re discussing this on, you know, how can how can we be better defense attorneys? What can we do earlier? How can we be more proactive, more aggressive um than in the past? Because that’s going to um help you with leverage. It’s going to help you with better decision-making and ultimately, it’s going to put your client in a better position.
[20:07] Shane Yeah, that’s right. I I think you just uh the first step is to remain client focused and not get too tied up in the adversarial nature of the litigation if that’s where you are. If you’re pre-litigation, then you’re already ahead of the game because, like you said, some of those clients and companies are starting to realize that the earlier they get us involved, the better. I I um I would say 5 years ago, 80% of my cases, the plaintiff lawyer had it within a week or two after the accident, and we got it two years after the accident. And now that number is probably 70% the opposite, which is we’re getting it sooner, which helps us and gives us a lot more time to game plan. Um, and to and to help preserve the evidence and figure out which direction things are going to go. So, getting involved early is is a really big part of that. Um, but also being aggressive without being a jerk or without just shaking things up just to shake it up is really an important u strategy that we employ.
[21:07] Bill Yeah, Larry, what what are your thoughts on this whole topic and particularly conversations with with w with with clients to get them to be thinking on the because again because Larry, I mean, you may be a very proactive attorney. If your client’s not on board with that, it’s that’s kind of a barrier, right?
[21:28] Larry It is. It is. And and I think what what Shane said is is totally correct. And building on that, one of the things I like to do that some of my clients struggle with uh sometimes is uh we’ll have the case first. There’ll be a claimant attorney that gets involved and and I’ll prepare a letter to them that essentially says this is how I intend to defend this case. Here’s the data from my expert. Um we we don’t see liability here. If I’m missing something, let me know. Um and and and we try to play offense as early as possible. That doesn’t make sense in every scenario. There’s a a lot of scenarios where that makes sense. And and in Missouri, we see a lot of lien-based care. And so, if we can convince uh an opposing council early that they have liability issues, it’s amazing how much the medical treatment changes uh as a result of of that initial letter because all of a sudden, they’re worried about liens and how that’s going to affect settlement. and all of a sudden the the medical treatment, you get a letter that says, “Hey, we’re going to get you demand because the medical treatment’s concluded where you know, kind of like the silent juror is your worst enemy.” The the claimant where you have a liability wreck and they’re just out there churning bills. I mean, the exposure on that case is just ticking the whole time. And so, and so in addition to litigation, I like what what Shane was talking about. Let’s talk about even earlier now. Let’s talk about a way that that you know, we can get out in front. You know, there’s a famous guy that once said, I may have mentioned this on your last podcast, everyone’s got a plan until they get punched in the face. Figuring out how to do that as a defense lawyer, and the quicker you can do that is going to lead to to better outcomes.
[23:12] Steve That’s actually you brought up exactly where I wanted to go with it too as I was thinking as you were talking Larry and I want to get your thoughts and Shane’s and Bills too is what conversations are you having with clients on the front end where you’re kind of like seeing potential problems because we know the plaintiff’s bar and they they’re pretty open about it is go to the go to their websites go to their policies and procedures manual all your answers are there on their websites all your ammunition is there on their websites. What conversations are you having with your clients around that and what does that look like and then what’s kind of the reception that you have seen?
[23:45] Larry Uh i mean essentially, it’s a part of our standard investigation at this point that we’re looking at policies, procedures, websites and and and we’re we’re looking at that stuff early. We’re incorporating those um into our uh initial analysis and and and figuring out early what we’re going to have to eat in terms of our defense and and and yet still figure out um how to play offense. I if your initial investigation does not involve looking at policies and procedures um then how you do an initial investigation needs to change quickly.
[24:21] Shane Yeah, I agree with that. Uh, one thing we have seen is, uh, there’s there’s at least been some momentum for helping review those policies and procedures. Um, to say the things that need to be said instead of all the things that sound really good in a safety manual or policy. We want to give the drivers the tools they need to be successful on the road, but we don’t need to give the plaintiff lawyers all the tools they need to bring up a big verdict. And so, you can have a policy and procedure that does exactly what you need it to do for your employees without saying safety is our number one priority. Nothing else matters. You guys are the most important thing on the road. Uh and so all you know helping to tailor those before accidents happen there’s at least some momentum for that from the industry. And so I think that’s a a really helpful tool that we’re using to be more proactive.
[25:12] Larry Yeah. And I’ll pile on there real quick. When when we get policies and procedures and an associates walked in my office and they said, “Hey, we got policies and procedures from ABC Trucking.” I said, “Is there a defensive driving section or not in there?” Because if there is, let’s talk about it. I mean, that’s what Shane’s saying. I mean, there’s a defensive driving section, you you’re going to have issues with that manual.
[25:33] Bill Absolutely. Uh on the theme of productivity, Steve, with our jury research, which has been very prolific and busy this year, what percentage of focus groups and mocks have you done this year have been pre-mediation?
[25:51] Steve Well, I mean, let’s I’ve actually I will say more than usual. Let’s put it that way. More than usual. I mean, we still get the last minute. We’re going to trial in in a month. We need help. Um, but I I am definitely seeing an uptick of, hey, can we get this research done so we have some ammunition going into mediation? We need some numbers. We need some information. We need things that we can use to tell the mediator. So, there’s definitely been an uptick from what we’ve seen probably within the last few years.
[26:20] Bill Yeah. And Shane Shane just re reached out. He’s going to do one uh here soon uh very early in the case. Shane, can you just talk about just the difference it makes when you start getting some answers at the jury level, right? And then how that impacts the because one of the biggest things that we see, Steve and I see almost every week is that oftentimes the defense attorney and the client don’t see eye to eye on things, right? Whether it be liability or damages. and and how jury research early can clear up some things cuz you know it’s like you get on the wrong trajectory, right? And we’ve all been there before. It it the confirmation bias with defense attorneys, with clients. I mean, Steve and I wrote a paper on this, right? Is you see this case and you’re like, “This case is a joke. This case ain’t worth $20 million.” and and it’s like you start talking yourself into this is and if you don’t have any juror perspective on this, you could really really be missing the boat and by the time you figure it out. Um, so Shane, can you talk a little about about the value of not not just the jury research, but the timing of it? Because if you get it early and then remember you could always repeat it as, you know, more discovery plays out, but getting that kind of initial read that I call it the X-ray, right? You get an X-ray before an MRI because an X-ray could really rule out a lot of stuff, right?
[27:48] Shane Yeah. I uh the pre-suit focus groups, you know, it’s kind of like the difference between having a game plan and scrimmaging. Uh you know, you can have the best game plan and then you go out and scrimmage and it doesn’t work at all and you’re like, “Wow, that we thought we were going to be able to shut down their passing game and we did not. We got to come up with something else.” Um, and so you know, you deal in theory and you deal in ideas. And you’re right, you may have a different opinion on liability or damages than your client. And so, one of the best ways to test that is to go ask some people that might be potential jurors or that have the same demographic as the jury pool and see what they think. And pretty commonly they come up with something that you might not have thought of or you thought of and you didn’t think it was a really big deal and it ends up being the biggest thing that they talk about the whole time. So, at that point early in the case or even pre-suit you’re able to pivot and start developing those ideas or addressing those things those problems problem areas so that you can be better prepared going forward. It also provides you just this overwhelming sense of confidence that we’ve already talked to real people about this. This isn’t just theoretical. This is this is real. And so, you can move forward pretty confidently with your strategy.
[29:02] Bill Yeah. You want to get on the right track. Steve, I mean, how Steve, how many projects have we worked on this year that uh a hidden, a hidden vulnerability was discovered where everybody at the end of the project said, “Oh my god, we are so lucky we tested like no one saw that coming.”
[29:21] Steve Right. A lot a lot. And I think is always the the good thing that I like to hear too is when that’s all said and done where a juror says, “I I would like to seen this expert. I would have liked to heard from this person and the the attorney or the client says, well, we don’t have that now. We’re going to go and get it.” Versus when you get too far down the road and they say, you know, I wish we would have heard from this expert and now discovery’s closed and it’s like, well, can you get that expert? And they’re like, nope, we don’t have time to be able to do that. So now you’re hamstrung by the fact that you can’t do anything with that information, at least as it relates to that topic.
[29:55] Bill Yeah. Larry, talk again a little bit about uh not just the value of of the research but the whole earlier is better principle because listen like with anything else in life um you know yet my my my friend who I will not mention by name like his mom’s house had a roof leak and he kind of sensed the roof leak and ah it’s probably not a big deal right and then like you know six months goes by and half of the roof is caving in and it’s like oh man and at that point the the cost to repair it’s through the roof, emotionally. It’s just it’s it’s it’s a nightmare. Um just talk about maybe the uh you know your perspective on the timing of finding vulnerabilities and problems and what that what the power that gives you uh as defense council versus if it’s way late in the game.
[30:44] Larry Yeah. And I’ll take a little bit different spin on it than than it’s been approached so far. So, as defense lawyers, we’re in the service industry, right? We’re either working for directly for a motor carrier or for an insurance company. And and no one uh not Shane or I, not our clients want to be the victim of a of a of a verdict where our our insurers somehow or our motor carriers expose themselves to some excess verdict that that potentially is going to cause them problems with their career, their company problems. And so and and so in in my view, you know, Shane and I handle a lot of cases. We see a lot of things. You guys see a lot of things. I mean, until you can you can lick your finger and put it in the air and try and guess which way the wind’s going. Um, and we do that a lot. But, but I think there’s a lot of value for our clients in understanding early because sometimes our clients may say, I think we have a liability winner. Shane and I may be on a little bit uh different page or it may may be a case where you have huge huge damages and you think you have really good liability defenses but you’re worried will the compassion for the plaintiff overwhelm our liability defenses and then can we be in an excess scenario where we have problems? So in addition to to helping you get ready to try the case, I think it it helps you do your job better for your adjuster and the adjuster do their job better for their company. So, I think I think the value of it is is is multiplied early because it serves so many different functions.
[32:16] Steve I was going to ask on that too and I want your thoughts, Larry, and yours, Shane. Um, on from your perspective, because a lot of times when Bill and I get involved, you know, we’re working with you, we’re working with the client, we kind of give off our reports, and we’re not really part of those kind of post conversations as far as those things when you’re talking about these confirmation biases where, yeah, they’re like, “We got a winner. We got a winner, we got a winner, and then the jury tells you you have a loser.” Um, what do those conversations look like? Do they take the research into perspective and then say okay now we need to address this a different way or does it do they continue on saying I don’t I disregard the jury research I still think we have a winner.
[32:51] Larry So in my experience that the clients if they want if if they’re willing to do the research they’re going to consider the results. They’re going to take that into account when adjusting their file. In Missouri. Uh it’s a really bad environment for insurers in terms of of policy limit demands, excess verdicts, things like that. Um and so whatever is in their file could potentially be part of a bad faith case one day. And so, when when you obtain the results from a jury verdict, they’re absolutely going to consider that as part of their file when when evaluating that case. And for for me as as as an attorney, look, I I I I take a lot of pride in the evaluations and things I write. But um I’m really happy when I get the tool to go either confirm what I think is true or to better understand the case in a way I haven’t by by involving other people. I mean, I focus group my neighbors out of control. I mean, they know if they’re drinking a beer in the culde-sac and Larry’s around, they’re they’re probably going to hear about a trucking accident and what they think about a set of facts. Um, and so I just think it’s it’s a it’s a hugely uh valuable tool and my the folks who are willing to pay for it, I haven’t had the situation where they then pay for it and they say, “Nope, not going to consider that.” We we think, you know, that that you know, uh, uh, Steve guy is crazy and didn’t do a good job. I’ve never had that ever. They always are like, “Man, this is really eye opening. This really confirms where I’ve had this file the whole time or I’m going to take another look at this with my with my management team and and and we may get back to you on some additional things we want you to do.
[34:26] Bill Yeah, there’s tools out there. Shane, let’s start. So, you’re trying to be proactive as a defense attorney. Let’s throw a wrinkle to this. That oftentimes is the case. You have a co-defendant. So, little bit could be a game changer. Um, sometimes you’re friendly, sometimes not so much, sometimes we’re uncertain. How do you be proactive in the ways that we’re talking about um, with your client on on the case? How do you deal with a a codefendant or sometimes even multiple codefendants, which makes it even more complex to to to try to get on the right track? Because as you all of you know too well once you have confessionals that are adverse to each other it makes life really really easy for plaintiff’s counsel, right?
[35:25] Shane Yeah. Plaintiff’s counsel sit back and let the defendants argue and then they just ask for a number at the end and they say well these two argued the whole trial done the whole case for them and so they just get to sit back and collect the check. Um, and this will dovetail right into what Larry was saying about, you know, communication, this being a service industry, that not only goes to your clients and I think talking about jury research or focus grouping things early on, saying, “Hey, this case has kind of some unique facts. Depending on what we find out here, we may want to consider doing something.” You start greasing the wheels right out of the gate. Uh, then it the discussion gets a lot easier. You know, if you’re 60 days before trial and you’re like, “Hey, I think we probably ought to take a look at this thing.” you’re you’re going to have a mountain to climb in not a lot of time. But that same thing applies to co-defendants. I mean, I pick up the phone and call them, talk to them, and try to figure out their strategy, try to get them to talk with me about how adverse they think they are, if they think it’s best for them to point the finger at us. Um, and so having a little bit of collaborative discussion with them and some insight into what they’re thinking or how they’re trying to shape the case. Also, the earlier you do that, the better because it gives them time to realize maybe that’s not what’s best for their client or maybe that is what’s best for their client and you’ve got to figure out how to handle it. Either way, uh, but you need to know sooner rather than later.
[36:44] Bill Yeah, Larry, how does this play out when because listen, the defense bar gets criticized for not sharing information, for not collaborating, right? Being too competitive with each other. So, when you’re picking up the phone, calling co-defense counsel, what are some tips on on on the best way to do this? Because I would imagine you run into all kinds of different types of mindsets from other defense attorneys, right?
[37:08] Larry Yeah, absolutely. And and and most of the time, if you’re completely aligned, it’s really easy. Um, but but a lot of times there’s going to be areas of of disagreement and and kind of back to our earlier conversation, I think if you can just identify, look, we may not agree on this on this liability principle, but we we can be totally aligned on damages and keeping the number down and and and maybe we focus on being aggressive early in the case with depositions on where we agree to to figure out maybe this is a case we can get moved because anytime you have defendants pointing fingers at each other, I mean, you’re keeping exposure down in those is difficult. And so, I think I think just being really candid and open and honest with a defense counsel saying look this is this is the principles of of the case where we have agreement. Um this is where we’re probably going to disagree but on these things we can agree. I got one right now, Bill, where I had a very um unfortunately tense conversation because our co-defense counsel does not handle a lot of complex litigation and and so that person is solely focused on her client um with respect to the litigation. And I said, “You got to see the bigger picture because you got to understand that if you if you sink me uh uh your your boat also just had three different sections of your non-sink sinkable ship uh cut as well. You’re going down too. So So let’s figure out how to do this.” And we both have to do our jobs and and and and maybe, you know, we have to do that at some point, but that point is not today. And I I think you just be honest with people and and I think that that helps.
[38:44] Steve Larry, I want to ask one question on on that because Larry brings up a good point. I’m going to go to you Shane because you and I have worked together a lot um on witnesses and and getting witnesses ready for deposition. Um what is the importance of that though when you talk about this kind of co-defense and and not pointing fingers and and not burying yourself? How much consideration is can you know a lot of times it’s like hey let’s just kind of we’ll do a basic prep with with the driver and if it sucks so be it versus we need to really start early making sure that our depositions are tight and that everything runs from that rather than just saying we’ll let the depositions go as it is and then if we have bad stuff we’ll eat it later.
[39:23] Larry Yeah. Yeah. No, I think I think you got to get out in front. And what I like to do, you know, I have a a a case with with uh some good liability facts right now and horrible damages. And um and we’re going to start noticing up uh depositions while they’re still trying to figure out uh a product liability aspect of their claim. And so we’re going to go on offense. And so, not only are we going to have our drivers prepped and and our company reps prepped and understand where our sore points are, but we’re going to start playing offense when they’re not because because you know what what the plaintiff’s attorneys want to do is they want to do stuff when they want to do it. And for a long time, the defense counsel sat back and a file that wasn’t on fire wasn’t a problem. And so, we’ll deal with what’s on fire and then when the plaintiffs are ready to go, we’ll notice party depositions and we’ll do this all in this order. If I have lien-based care now, I file corporate designee notices with subpoenas right out of the gate. It’s going to be the first depositions we take in the case. Plaintiff’s don’t like it. It makes them uncomfortable. They’re talking about lien-based care early, but it’s a way to go um on offense early. And so, I think when when you knock it out of the park in terms of early deps, you have a well-prepared driver, you have a well-prepared corporate rep, you’re ready for plaintiff’s def, you you can fundamentally alter the exposure picture from a case and potentially move it or have it in an exponentially better place to try than it would have been otherwise.
[40:42] Bill Nice, Steve. And fi finally, let’s talk about um jury research with co-defense. So, Steve, can you talk about the because I’ve seen this ball get dropped a lot. You know, oftentimes for whatever reason, um sometimes it’s legal, sometimes it’s strategic, sometimes it’s financial. Um you’re doing jury research for a client and the codefendant’s not participating, but you still have to kind of put on their case to get a a good read. Can you talk about from a research design aspect of how important that is and if you if you don’t if you don’t cover that stuff um that you may you may get some some uh false negatives or or false positives.
[41:24] Steve Yeah. I think too often we we do that right where you have a codefendant and the codefendant’s not there. I mean and and you don’t have anybody representing their side. So, you might have it and then the jurors hear from the main whoever your attorney is that’s representing that main client and then they don’t hear anything about the other one. Yeah, it makes it a lot easier to either agree with you and point the finger at the codefendant or vice versa. So, I think from a research perspective, even if you don’t have co-defense on the actual case there to do the mock trial, you still need to take that in consideration and probably have another attorney fill that role and present that case so that you are covering it because you know that’s what’s going to happen at trial. So, yeah, not saying, “Well, we’re not going to worry about the codefendant.” That needs to be a very important part of your your research plan.
[42:12] Shane If you’re missing a critical element. You won’t be able to balance apportionment of responsibility or liability. You’re not trying a case against an empty chair. They have a lawyer. If you are trying against an empty chair, then you take that into consideration when you’re coming up with your research plan.
[42:24] Bill Which funny enough, so um because you know we do a lot of research just now, you know, virtual it’s very efficient and we can do test retest of multiple scenarios. And so sometimes the scenario is our client is like, “Listen, there’s a good chance this codefendant may settle out before this trial and we’re going to be there by ourselves, but we we can’t be sure. Let’s test it one way, right? Versus this way where, right, we’re both in it.” And sometimes, you know, you have to do that extra research to to cover yourself because you don’t you don’t know how it’s going to be. I mean, Shane, if if you’re there with a codefendant versus all by yourself, that’s a pretty different situation, right?
[43:09] Shane Yeah, absolutely. I mean, you can you can fire shots at an empty chair and not worry about what arguments are going to come back across against you. And so, it it changes the the dynamic completely.
[43:20] Bill Absolutely. Well, guys, uh, thank you guys um so uh much for coming on. Uh, we can go ahead and wrap this up. Always great having you guys uh on the show and uh it’s important I think to to get the word out there and uh the podcast is getting extraordinarily popular. Uh we like that. Uh so I’m going to force you guys into a completely unfair question right now. NFL has not started yet. Okay, I’m going I I I’m throwing I’m throwing a hand grenade into this podcast. Yes, I am forcing you into Super Bowl picks right now. You got 20 seconds to think about it. I have my picks right here. I’m going to, listen, I’m going to I’m I’m so sick and tired and this attorney’s not here. I could just dog pile on the Chiefs. I’m so sick and I’m I’m tired of Taylor Swift and the Kelsey engagement. I’m just I’m tired of all of it. They’re done. I think the reign is over. Okay, Kansas City, just take them off your list. They’re not going to the Super Bowl. Here’s here’s here’s where I’m going with this. I’m going to go with the Detroit Lions. Okay, they had it a couple years ago. They blew it. Okay, really good coaching. I really like their coach. I think I think they’re due. I think it’s wide open in NFC this year. So, I’m taking the Detroit Lions versus another team that’s desperately due. Desperately due. And they’re they’re taking the throne away from the Chiefs in AFC. That’s going to be the the Baltimore Ravens. The Baltimore Ravens. Okay. Jackson at quarterback. Suffocating defense and they just they need to get that home field advantage in the playoffs and I think that that’s where I’m going which would be very exciting for the country. Two newer teams into this uh no more Niners. Sorry, Steve. No more no more Kansas City. Okay, that’s where I’m going. I’m going to throw it and this is a no fair order. I’m going right to Larry Hall.
[45:15] Larry I grew up in Kansas City, Bill, so I’m a big uh big big Chiefs fan…
[45:20] Bill Well, sorry to break the news to you, Larry.
[45:23] Larry Yeah. Yeah. Well, um, uh, but, uh, you know, I think the Chiefs are going to be distracted as they prepare for a wedding this year. So, I’m gonna go with the Buffalo Bills.
[45:32] Bill That’s a good one. That was my second pick.
[45:34] Larry A lot of respect for Josh Allen and and and what they have going on up in Buffalo, and I hate to do this with Shane on the line, but with with newfound Micah Parsons on uh on defense, I’m going to take the Green Bay Packers out of the NFC.
[45:49] Bill As a Bears fan, this is I that just came across the wire yesterday and just like…
[45:54] Steve I’ve been blowing Bill up, but just busting his chops all day last couple days about that whole thing.
[45:58] Bill Wow. Interesting. Okay, so we got Packers, Bills, Shane Odell. I know who you’re not I know you’re not saying the Cowboys. I know I know we’re on the same page with that.
[46:11] Shane Yeah. No, no Cowboys. Uh I’m gonna follow Larry and the Bills. I think they’re due. Josh Allen’s got that thing rolling. I think they’re going to be great this year. and go with an Eagles reappearance. They didn’t lose enough pieces on that on that team to uh Saquon’s second year in the system. Uh I think they’re going to be really tough to beat. Who else is in the division who I mean they’re not going to play anybody and we got Washington lost half of their team that locker room was singing Kumbaya at the end of the season. Then everybody wanted a new contract and left? Something’s up in Washington.
[46:45] Bill Yeah, something’s up there. I’m hoping the Lions can can can beat the Eagles. Think I think a lot of people would pull for the Lions in in the Super Bowl.
[46:56] Bill Steve Wood, you get the final word here, then we’re going to close it out.
[46:58] Steve I can’t do the Jets, right?
[46:59] Bill Well, you you can if you if you want to just get pummeled the rest of the year.
[47:02] Steve Uh no, I think uh you know, I was think I was kind of like with you that you went your second choice was the Bills. Um mine was probably the the Ravens, the Bills. I think the Bills I’m going to have to jump on the bandwagon. The Bills bandwagon.
[47:17] Bill Three for three on the Bills here.
[47:18] Steve And I’m also gonna jump on your Lions bandwagon because, you know, I was a big supporter of them last year. I was finally, as someone born and raised in Michigan who couldn’t really ever wear Lions stuff much. Um I’ve been able to break out some of my Lions gear now. So, I’m going to stick with the Lions. Big Dan Campbell fan living in College Station. He’s a Texas A&M guy. Um so, I’m going to stick with that. Bills and Lions.
[47:45] Bill Well, well, there you have it, folks. Uh if you’re in Vegas and there’s your there there’s your winners right there. A lot of lot of favorites for the Bills. Well, great guys. Thank you so much. Great podcast to our listeners and God please some someone leave a review. Steve I like like attorneys don’t like to leave reviews. I don’t, what’s up with that? I keep begging for reviews like hey leave us a review. No one’s leaving reviews. Five-star reviews.
[48:07] Shane I got one Bill. I got one thing to tease for a future episode for you. Okay. There’s this growing uh at least uh sentiment in the defense bar against AI, I think.
[48:18] Bill And oh yeah, we have to we have to hit that again.
[48:21] Shane There’s there’s so many useful things you can do with it. Just like Larry is uh focus grouping his neighbors with fact pattern. Why don’t you use chat GPT or Grok to focus group fact patterns and just get an idea? It’s silly to me. 80% of the plaintiff’s bar is using AI and I think it’s probably close to 80% of the defense bar has a moratorium on AI use. It it’s another area we’re going to fall behind. People need to get on board.
[48:45] Bill Another podcast because it’s because it gets misused a lot, and by plaintiff’s counsel too. It gets it gets misused a lot, right?
[48:54] Shane Yep.
[48:54] Bill And so uh remember it’s uh it’s changing every day. Yeah, we definitely have to have another follow-up. We have to more and more. We may have to have a podcast a month on AI because this new stuff keeps coming up. No, that’s that’s really really good. So, thanks for bringing that up, Shane, Larry, Shane, as always, thank you for being on. Steve, thanks for everything. To our listeners, thank you for participating in this edition of the Litigation Psychology Podcast. We will see you next time.
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