Episode #29 – Jury Selection in Trucking Litigation

Trucking Attorney Mark Perkins of Perkins and Associates joins the podcast to discuss jury selection for trucking defense in light of catastrophic events in Louisiana such Hurricanes Katrina and Hurricane Rita, the BP Oil Spill and now COVID-19!

Full Episode Transcript

0:04 – Bill: Litigation Psychology Podcasts brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky here with trucking attorney Mark Perkins. Mark, how are things over in Louisiana?

0:13 – Mark: Things are pretty well. The weather’s a little bad looking out there right now. Looks like you have some weather issues as well, but really the problem is getting through COVID-19. That’s our big struggle right now.

0:22 – Bill: Yeah, I think that’s a big struggle for everyone. I know a lot of the state laws have been changing on reopening. What’s the current status over there in Louisiana?

0:29 – Mark: The governor opened things up partially on Friday, May 15th. The Supreme Court came out with a new order regarding court matters—that’s going to be a little complicated for us. We’re not supposed to have a settings jury trial, criminal or civil, until the end of June.

We’re having some issues regarding hearings as well. Some of the courts are limiting access to the courthouses; many of them are requiring that you have your temperature taken. Can you imagine what that’s going to be like? It’s difficult to get in the courthouse as it is, then they’re gonna have the process of everybody having their temperature taken and being turned away if they have a high temperature.

Then you have the issue of no social distancing within the courtroom. Some of the judges individually are requiring that matters be set at different times of the day so they can limit the number of people in the courtroom.

1:38 – Bill: Well, that makes sense. It also sounds like a circus of sorts. That’s going to happen. So I told you to wear your school colors—I don’t follow the Zoom dress code—but I went with the Carolina blue and you went with the purple.

1:52 – Mark: These are LSU colors hold on I got this as well if that makes me dressed down a little bit.

1:57 – Bill: That’s perfect. I feel a lot better. I would not like to run into LSU in a football game, but I think basketball maybe—the Tar Heels may be able to take you.

2:07 – Mark: I don’t know about that. You’ve got to remember that Shaquille O’Neal went to LSU. Now that’s quite a long time ago.

2:12 – Bill: Now, that’s 140 years ago!

2:18 – Mark: Right, but still. Baseball, basketball, football—we’re pretty good at LSU.

2:23 – Bill: You definitely have some serious bragging rights. Let’s talk about the trucking industry. I know you’re very active in it. How do you grade, on an A through F scale, the trucking industry’s response to COVID-19 as far as the public messaging that quite frankly they should be taking advantage of right now?

2:47 – Mark: I’m really excited about some of the things that are being done. I believe LMTA (Louisiana Motor Transportation Association) really has done a lot in that regard with industrial or institutional type advertising and some publicity that’s going on in that regard. They’ve even convinced some of what I call “billboard attorneys” to limit the advertisements against the trucking industry, although some of them are backing off of that as we’re moving out of shelter-in-place.

The fact of the matter is we all know that the trucking industry brings in the medicines, the food, the toilet paper—you name it. People need it, and they’re getting a lot of mileage out of that in a good way. I don’t think they’re trying to use this tragic situation. I just think they’re doing what they’ve always done, and people are seeing how vital they are to the economy.

3:56 – Bill That’s a really good point and I hope that the trucking industry as a whole can come together and—and to continue to push those positive messages going forward. We’ve done several podcasts on the series for trucking that we’re publishing in May and trying to make May Trucking Month. And the one question that I get worn out with is how is COVID-19 going to impact jury decision making and jury behavior? That’s a valid question. No one really knows yet. Several of my colleagues think that it actually could get more—and it could get worse before it gets better because of all the negativity in society with the stay at home orders, people getting laid off, people getting furloughed, severe economic problems, then just a general anxiety of a pandemic is not going to help jury decision-making. But a question I have for you—I’ve not asked any of my guests—how do you think COVID-19 and the trucking industry’s response, can that affect the bench at all? And—and I’d love your thoughts on how judges see the industry or how they saw it, and do you think some of these great things that the trucking industry has done may kind of sway the judges maybe more on your side?

[5:00] Mark I don’t know. I’ll tell you one of the things that’s being done right now in Louisiana. We’ve making some legislative changes and really this is really one of the best opportunities to make some changes. One of the things that is being done here in Louisiana is to—is to allow for jury trials, more a more opportunity for jury trials. Right now in Louisiana, in order to get a jury trial, the jurisdictional amount has to be greater than $50,000. So one of the things that has happened over the years is you have municipal courts with a jurisdictional limit of $35,000 or $50,000 and those are elected judges and frankly some of them, many of them, are former plaintiffs attorneys and have their group that they somewhat are beholden to. And so what would happen is a claim that is relatively small would become all of a sudden $35,000 to $45,000 dollar claim per plaintiff. And one of the issues that’s being addressed here is to allow for more jury trials at a lower jurisdictional amount. Now they’ve changed it to, or they’re suggesting that it be a $5,000 jurisdictional amount. And I need to say this real quickly, that is not to say that they’re mandated—a jury trial is in no way mandated—but it would be allowed for if someone wanted to have it. But right now if they—if someone says, “Well I’m limiting the value of this claim to less than $50,000,” there’s no way that you can get a jury trial. So that gets you back—and you’re mandated in those kind of cases of being in front of a—in front of a judge. And you know, I mean it is what it is, that many of the judges are former plaintiffs bar members and they tend to be a little bit more biased toward the personal injury side of things. So your question is, “Well now how will things change in terms of bench trials because of COVID-19 because of the issues that we’ve dealt with with the—with the trucking industry doing as well as they have?” You know, it’s going to help, over some period of time. But I think it’s better for us to have opportunity to present our cases to a jury. And I’m—I have a lot of colleagues, a lot of judges that I have the utmost respect for, and even those who are more on the plaintiff oriented side, I have a tremendous amount of respect for them but they do tend to be a little bit heavy-handed against the trucking industry. I mean it is what it is. There’s no way we can get around it.

[8:07] Bill So going forward and to stay on the topic of judges, do you think going forward because of the circus that you described with reopening courtrooms, do you think that the jury selection process either gets lengthened because of COVID-19—because obviously you’re gonna have to ask new questions you have never asked about before in voir dire, right—or because of the log jam of cases that’s kind of formed, does the bench shorten jury selection to try to get it—try to get the system back up to speed? What’s your prediction in that matter?

[8:43] Mark Of course in federal court they limit questions you can ask. So you know, you’re—that’s a different issue. But I will say that many, many times that when I’m, you know, cases filed in—depending on the parish, remember Louisiana’s parishes, not counties, it’s the same thing—but depending on the parish that it’s found in, and if I can—if there’s diversity and non- controversy, I’ll try to move federal court even though jury selection is not as robust in the federal court system. In the state court system, most of the judges are gonna give you a tremendous amount of latitude to ask a lot of questions. So yes, I think that what—that’s  going to do what’s gonna happen is that we are going to have more opportunities ask a lot of questions about COVID, how people feel being in the courtroom. You know, one of the things I was thinking about real quick, just—just the courtroom proceeding itself. The voir dire—you know, usually we have 40 or 50 people in the voir dire then they put 12 or 6 or whatever in the jury box. Well, that’s all going to change, right? Because it’s going to have to be some social distancing between those folks.

[10:00] Bill Very good point.

[10:01] Mark They’re going to limit how many people are going to come in in the voir dire over a period of time. So that’s probably going to be lengthened as well, Bill.

[10:09] Bill That’s—that’s gonna be very interesting in how that works out. So a very unique question that really you’re one of very few people that can—that can answer, and again it’s kind of unfair cause I’m asking you to make a prediction. But since you’ve been through something like this, and again the state of Louisiana, and there’s been some other handfuls of states that have gone through some pretty terrible natural disasters in the last five to ten years, what impact does COVID have—COVID-19 have on an area like yours in which you’ve kind of already been through terrifying terrible things? Right? In other words, does COVID-19—does do the jurors say like, “Come on, you know, look at what we’ve been through,” or does it—does it make them maybe even even more on the negative? What are your thoughts and kind of your experiences kind of post-hurricanes, how that’s impacted your jury pool? Because I think other states are kind of in the same boat, but you guys are definitely in the top five.

[11:09] Mark Well sure. Well, first of all when Hurricane Katrina came through in 2005, what people don’t remember or keep in mind it was also Hurricane Rita that happened that affected the southwestern portion more than the southeastern portion of the state. And what unfortunately happened is because in that particular arena of the state, they were typically more conservative, but because of some of the things that happened in the way some of the insurance companies handle those claims, folks were became less conservative, more anti-insurance. Okay? And—and that’s one of the issues that we deal with. Also, people have to keep in mind Louisiana is extremely culturally different. South Louisiana versus North Louisiana. We have a completely—it is almost like two different states. We don’t talk the same. You know, the great majority of the population is in the warmest area of Baton Rouge, Lafayette, kind of below the—what we called it—the I-10 corridor, which is from Houston on the southern portion. Myself, I’m in the northwestern side, we’re actually closer to Dallas than we are to New Orleans here. This is the I-20 corridor, the I-49 corridor. And so the cultural differences between North and South Louisiana makes a huge difference. So I think that what is happening is a lot of the cases with COVID-19 are in South Louisiana just because it’s a great amount of the population. A lot of the issues that happen with, you know, after Mardi Gras, the people that were so congested down in New Orleans and they, you know, came out of that area. I think they’re really, really tired of the whole situation and ready to move forward on it. And they typically get impacted by the hurricanes worse than we do in North Louisiana. But I think that down there they’ll be a little bit more—a little bit different, but they may be—maybe a little more nonchalant about it, whereas in North Louisiana, not so much. We would be a little bit more cautious about it and have some more concerns and some issues that we could address in jury selection.

[13:25] Bill I think many people are interested in in areas—well I’m in Florida, so you know, we’ve been getting pounded by hurricanes last couple years too—is if there is a trucking accident that—that is not a catastrophic injury or death but more of a soft tissue thing, do jurors become less sympathetic saying, “You know, really, you’re actually gonna bring a lawsuit after everything we’ve just been through?” versus do they get more punitive in nature because of that insurance issue? I will tell you this Mark, when we got hit by one of the hurricanes a couple years ago, I had roof damage and the insurance adjuster came out—well actually works for a large insurance company who’s one of my clients, so it’s kind of awkward, right? And I’ve got my roofers telling me, “You know, you need a new roof, this is gonna be thirty thousand dollars,” and I—and the insurance guys like, “Well, you know, I’ve got seven grand for you.” I be—I became pretty anti-insurance very quickly and I think, you know, when you go through something like that, definitely regardless of how strongly defense you are, you—you can change your mind pretty quickly. Another topic to kind of wrap up here Mark, as you know all too well, the topic of nuclear verdicts. It has really hammered the trucking industry and transportation companies significantly particularly recently. You see a lot of articles and news stories about those awards and you know, we’re doing everything we can at Courtroom Sciences to help our clients try to put an end to those or at least to mitigate those and bring them down. The plaintiffs bar has become very aggressive particularly with the reptile theory folks. Can you describe to me, because I think one of the key areas of nuclear verdicts—if not the top area—are the failure of trucking witnesses meaning drivers, safety directors, corporate representative, you know, getting reptiled? Usually in deposition and on video and—and that ends up in the courtroom. Can you tell me personally how you deal with that? So when you’re preparing witnesses to—to try to address these things early, because as you know once those reptile attorneys sink their fangs into your case, it’s—it’s really hard to recover.

[15:40] Mark You’re right. Yeah it absolutely is. And I—I experienced this several years ago not in the trucking industry, but I was defending a local camp, youth camp that someone got injured there and someone out of Houston started using the reptile theory, you know, the needlessly endangering questions and such. And I wasn’t real familiar with it at that time and it became more familiar with the multitude of information you know, I got the book, I got all this stuff right? I got all the information. I try to learn as much as I can from the enemy. And—and so, you know, what we try to do now is deal with it early on, particularly in claims dealing with negligent hiring supervision, because that’s really where they’re trying to go against the trucking company independently. And if we can get vicarious liability acknowledged, then we’re doing a better job of being able to get those other types of claims out of the way. But as far as how you go about it, how do—it’s a lot of education. You know, I start early on with meeting the drivers, meeting the safety personnel. I start talking about these issues making them aware of what reptile is. I had some—a case in North Louisiana, I was helping somebody from South Louisiana. He had not even heard of the reptile theory. This has been three, four years ago. I was shocked that he hadn’t heard about it. But then someone was bringing it up in a hearing and he told me about it later. And he said that you know the judge said, “Yeah there won’t be any discussion about alligators or snakes or anything like that.” It was like they were—yeah, and I think he was serious. They missed the point. But—but try to do these motions in limine, trying to deal with protective orders early on, trying to get that kind of information from being discovered initially. But then as you well know, I mean going through the process of talking to the driver, going through the types of questions are going to be asked—and I can’t tell you how many times Bill that I’ve been through this where I would spend literally you know days and—and weeks in preparation, sending information in advance, talking on the phone, going through in the day before going through the process of asking the questions, and then they get in the deposition, everything I told them not to do they did and everything I told them to do they didn’t do. And you know that stuff like that’s just going to happen from time to time. But educating the judge, educating the client on these issues, that’s how we’re gonna make a change.

[18:26] Bill I agree. And let me tell you, I don’t let reptile attorneys reptile my witnesses. I’ve cracked that code and we’ve been doing a great job. You know the funny part about it that if you want to get something positive out of this, it absolutely makes the reptile attorney insane. They start bouncing off the walls when they’re not getting the “yes yes yes yes I agree I agree I agree.” And they’re getting me, “Well, sometimes not necessarily,” you know, “Safety’s one of the most important things but it’s not the number one thing.” And they start getting these different answers, the wheels tend to come off pretty fast and I—I kind of get a kick out of that.

[19:00] Mark It’s funny because they kind of don’t know where to go when they don’t get the answers they were expecting.

[19:04] Bill I know then the panic sets in. Well Mark let’s wrap it up here. Thank you so much Mark Perkins for being on the podcast. We will definitely post this during the month of May for our Courtroom Sciences May Trucking Month. Be safe out there in Louisiana and please keep in touch. I like writing articles for your group and let us know if you need anything.