Episode #30 – Trucking Attorney Mike Bassett

Mike Bassett, Senior Partner, The Bassett Firm in Dallas, TX joins The Litigation Psychology Podcast to discuss a number of topics in trucking litigation including the challenges with preparing truck drivers for testimony,  how to manage the relationship with drivers and the on-going problem of nuclear verdicts. In addition, Mike shares his thoughts on what the industry can do to prevent these nuclear verdicts, including going on the offensive and not always play defense, and communicating more within the defense bar. Mike also gives his thoughts on anchoring, plaintiff’s bar advertising against the trucking industry and continuing dangers of Reptile attacks.

Full Episode Transcript

[0:04] Bill Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky here with my very good friend and trucking attorney Mike Bassett in Dallas. Mike, how you doing?

[0:16] Mike You know, I’m wearing my trucking hat that says MSM Trucking Company Inc., Ben Wheeler, Texas, for this podcast.

[0:24] Bill At least it doesn’t say “Safety is our top priority” across the hat, Mike.

[0:29] Mike Number one priority!

[0:32] Bill Mike, tell us a little bit about your role in the trucking industry, how you got into it, and about the types of cases that your firm handles over in Dallas.

[0:39] Mike You bet. So I’ve been practicing 33 years. I started at a great firm here in Dallas, Coles & Thompson, a long time ago and was initially put in the medical malpractice section and realized that was not my gig. And I wandered into another partner’s office—yeah, and I wandered into another partner’s office and he had a file sitting on the floor and I said, “What’s that?” He said, “It’s a trucking case. Do you want it?” I said, “Sure, how hard can that be?” And 33 years later, that is about 60% of my practice is representing truck drivers, trucking companies, and transportation-related industries.

[1:11] Bill Excellent, excellent. As you know, I’m very active in the trucking and transportation industry as well. I’d love your thoughts on some of the—I know you have war stories, Mike, I know you have thousands of war stories—but one of the main—one of the main challenges we have is when we get called in to help prepare truck drivers specifically for testimony. A lot of them don’t tell the truth, a lot of them don’t like attorneys, a lot of them have been terminated or left the company and aren’t exactly happy to be there. Tell me about your philosophy and how to prepare the truck driver for testimony—maybe some of the hurdles that you faced?

[1:50] Mike Right. So I think really the—that preparation starts day one, Bill. It doesn’t start a week before the depo or a month before the depo. It starts day one. And that is the day that I get hired. I’m going to make contact with that driver and I’m going to say “he” because in my 33 years of doing this I’ve represented two female drivers. So I’m going to make contact with that driver and I’m going to get to know him and I’m going to get to know his story. Because I’m not going to get the best out of that driver, Bill, if he doesn’t trust me. If he doesn’t trust me, if he doesn’t think I’m interested in him, he may have a great story to tell and I’m never going to hear it. So that’s the first thing to do. And then you’ve got to listen to them and understand what is going on, what was going on at the time, because oftentimes at first blush a case may appear to be one way but then when I visit with my driver I realize, “You know what? That’s a narrative we can sell.” So I guess my takeaway at this minute is it starts day one, not 45 days before trial. By that point the coloring’s all gone, the puzzle’s put away, it’s—that thing is set in stone.

[2:53] Bill Now speaking of that, and I have no idea what the answer to this question is, I’m just curious: do your clients have a system to get you with the driver relatively quickly? Because I would imagine if there’s a lot of delay, fear builds up, maybe even some resentment. What do you think about the whole timing of that, particularly that first meeting?

[3:18] Mike Yeah. Perfect world, Bill, we’re going to get a call and then we’re gonna go to a hot scene. So we’re gonna be able to make contact with that driver right away. That is the best—that’s the best way to do it. But that’s a function of when the carrier gets notified or the client gets notified of the accident, when we get brought in. But just literally 30 minutes ago got done doing a webinar and one of the sections was investigating tractor-trailer accidents and I told him this: “The early bird gets the worm.” You have got to set the narrative. You have got to take the fight to the plaintiff’s lawyer. So I—I would like to get out there early. Now if you can’t, and it is a case that maybe sat around for a year and a half, Bill, and nothing was done, still you need to get in front of that driver as soon as you can. And that means—I know this is odd in this pandemic time—going to see them. Because, you know, they have got to—they have got to know you respect what they do. Because if they don’t think you respect them, Bill, they’re never going to be on your team.

[4:17] Bill That makes sense, Mike. I’m not going to go into the causes of nuclear verdicts because we’ve had a lot of talks about that on several podcast, but rather I’d like to—I’d like your opinion. Do you think the industry—the transportation trucking industry, who has been really torpedoed and—and—and hurt by these very large nuclear verdicts—have they done enough as an industry to get on the same page to try to do something to prevent these?

[4:52] Mike You know, I look at the transportation industry sort of through a—a role and I just see what I see. But I can tell you this: the carriers and the clients we deal with, I think there is room for improvement so that we can all change our paradigm. I don’t think we need to play defense all the time. I think we need to get out front and we need to be the one setting the narrative. So I think there’s a lot of work that can be done. But I think a lot of it is—is that there’s not a lot of cross-communication between lawyers and carriers and transportation people and experts like you, and I think that needs to be facilitated somehow.

[5:31] Bill We have talked about that extensively. And a topic related to the nuclear verdicts, which is one of the key topics of this podcast, is the whole concept, the psychological principle of anchoring. Very, very powerful. The plaintiffs’ bar has fully picked up on this. And Mike, has there—in 33 years, there had to have been a time when if a plaintiff attorney—a plaintiff attorney asked for fifty, seventy-five, a hundred million dollars, your entire office would have probably broken out in laughter? Like, “Come on, no reasonable jury in their mind is gonna…” like this guy’s out of his mind. You’re seeing it all the time now. And the psychological principle is that, “Okay, well if I can get the jury locked in, anchored to a specific number, and I can get them to not budge off that number, or if they do move they move down, by maybe a little bit, I’m gonna get a serious amount of money as plaintiff’s counsel.” How have you seen the evolution of anchoring? Because I’m pretty sure—because it’s happening in settlement negotiations now where you’re seeing maybe a 10 million dollar case and they want 50 and they’re doing the same thing. Can you talk about your experience with the evolution of some of these just absolutely obnoxious demands both at settlement and in front of juries?

[6:51] Mike Yeah. So I think historically plaintiffs’ lawyers were hesitant to get in front of a jury in opening statement and say—”Ladies and gentlemen,” or really in jury selection—”Folks, I represent a family of four whose the patriarch was killed in—and I just want you to know at the end of this case I’m going to be looking to you to return a verdict and return justice in excess of 60 million dollars. Who here is going to hold me to a higher standard in doing that?” And now they’ve heard sixty million dollars unapologetically. Unapologetically. Which means—which means that if it’s a six-person jury or a 12-person jury, all six or twelve of them are not going to be surprised when that lawyer gets up and says, “I want 60 million bucks.” So I have been—I have been on the receiving end of that whipping cord and it is not fun. I was in trial for a month in Dallas this year and the plaintiff’s attorney stood up—very good plaintiff’s attorney stood up and said, “Folks, I want you to know when you have heard all the evidence in this case, we are going to seek justice for our clients in excess of fifty-five million dollars.”

[7:56] Bill Wow.

[7:57] Mike And then went into “Who’s got a problem with that? Tell me how you think about it.” So by the time the jury got the case, that was not a surprise. Earlier, I don’t think plaintiffs’ lawyers did it—and I don’t know why—but we do see it in settlement negotiations now where, you know, we—the industry, and by that I mean the insurance industry, at the end of the day, Bill, I think they’re better at evaluating cases than plaintiffs’ lawyers are because they’ve got more data. They have got more data. And so if I’m representing a trucking company and I said, “Listen, I think your walkaway number on this is ten million, I think that’s what you’re going to look at,” you’ll see plaintiff’s lawyer starting at one hundred million bucks. 100 million bucks. Knowing in their right mind they are never going to get that, but driving it, driving it, driving it upward so that you get an excess carrier that says, “Oh my god, let’s pay twenty-two million because we’re afraid of the case.”

[8:51] Bill Insane figures. I’ve also seen the opposite, Mike, and there’s really not a term for this—perhaps that’s the reverse anchor—is where during negotiations for settlement, plaintiff’s counsel sends you that email. I know you’ve gotten this email, Mike, and you know the email I’m talking about: “I want 25 million dollars or it’s going up by 10 million in two weeks, and after two weeks I’m gonna withdraw my offer and I’ll take it to the jury,” trying to really, really up the ante. What’s been your experience with some of the nasty grams you receive electronically?

[9:27] Mike Or you mean the ones that say, “Listen, we will go to mediation only if you have the first three layers of the tower with 40 million dollars at the table”? And so what I’ve said to plaintiff’s lawyer is “Okay, tell you what: you have your people ready to take ten bucks and bring them to the table. I’ll bring 40 million bucks.” And they’ll say, “Well, that’s ridiculous, my people are never gonna pay—take ten bucks.” I’m like, “Exactly. We’re never paying you 40.” So, you know, they want to put parameters on it. In—at least in Texas you can’t tell people what to bring to the table. But we see it all the time.

[10:06] Bill They like to bend rules, particularly the reptile folks. They’re really good at that. And something you and I have talked about offline extensively is, again, that amazing amount of communication between defense—or I’m sorry, plaintiff attorneys—and some of the lack of communication between defense attorneys. And—and Mike, I am not calling you old, I’m just saying you’re older than me, but has this been going on forever?

[10:37] Mike Forever. There’s—there’s—there’s a certain group of lawyers that I—that I deal with all the time and we share information. But industry-wide? No. Everybody thinks that they have the secret sauce and they’re not willing to share it. At least that’s been my impression.

[10:51] Bill That’s really interesting. Well, you and I, again, we have talked so much. I really think as the industry that really needs to change to get ahead, because I think there are a lot of ideas and thought sharing that are possible that doesn’t deal with this secret sauce that would be very helpful to the actual industry—but like you said, I think the defense attorneys as a whole want to hide, you know, what they’re doing and keeping them to themselves. But I still think there is a way to do that, you know, whether that be through the industry meetings or—or—or just, you know, just being—being more open with, you know, you—with your colleagues and people that you work with. Do you see that as the next step for the trucking industry, would be communication and how important that is?

[11:47] Mike Yeah, I think we—I think when I say “we” as defense lawyers, have to be much more open with sharing information and ideas and tactics. Because at the end of the day, we’re there to—we are there to represent our clients. And my thought has always been, “If I put the client’s interest first and do good work, everything else will take care of itself.”

[12:06] Bill That’s a—that’s a very good point. So 33 years is a long time. How have you seen plaintiff attorney advertising, particularly against the trucking industry? How that’s evolved over the last few decades? Because I remember the days and the plaintiff attorney billboards are always up there, but now you see them on key stretches of interstate where it’s, “We are—we are trucking attorneys. We are plaintiff trucking attorneys. If you’ve had an incident with a truck, please call us.” Has that just multiplied across the country and particularly in your area?

[12:46] Mike Oh, yeah. I mean, please. You know, Texas has three major highways that run through it: I-10, well, 10, 20, 30 and 40 up in the Panhandle. So we have a lot of truck traffic and yes, we have seen more and more of it. Some of the best ads, if you want to see them, just Google “Texas truck wreck lawyer.” Some of them are pretty amazingly funny. And they are out there and they are going—and they are going after—after trucking companies. And like I’ve told my folks, think about it: if you are a plaintiff’s lawyer and you’ve got three cases on your docket, and one involves horrific injuries and somebody has got a $30,000 policy, and one that’s got medium injuries and has a hundred, or one that’s got potential injuries but five million in coverage—guess where you’re gonna fish? You’re gonna fish with the coverage. We’re seeing it a lot.

[13:33] Bill Yeah, you’re absolutely right. Something—and I’ve interviewed several people for the podcast from the—the trucking industry and the one topic we have discussed a lot is the very recent, but I—I would really think is now tapering: the very recent, very positive public PR, you know, that that we’ve been seeing—the positivity towards the trucking industry. Now the problem I’ve seen in the last six weeks is that’s come down and the healthcare folks have tripled there’s—and then companies on their commercials have piggybacked—I don’t know if you’ve noticed this—but companies that don’t—I saw one today, it was a commercial on TV in between a news break and it was a financial services company. Like, they handle money, they handle it, they handle your 401k. And of the one minute of the commercial, 45 seconds of it was “We’re praising the heroes on the front lines and those doctors and those nurses and healthcare professionals and blah blah blah blah blah. Oh, by the way, come hire us to hire your 401k.” That was the entire commercial had nothing to do with them or their services. What can or should or will, I guess, the industry do to try to capitalize off of this moment in time, which we have really never seen before, to try to maintain and increase the level of positivity? Because you’re going up against a marketing advertising machine and the plaintiffs’ bar. What are your thoughts?

[15:13] Mike Well, I think what everybody in the transportation industry needs to remember is this: transportation—trucking—brings about, moves about 70% of the freight in the United States. Okay? They did it—they did it before COVID, they’re doing it now, they’re going to do it afterwards. So we continue to do the same thing that we do. And I think that we need to continue say that there are professionals out there that are doing a job that are bringing stuff to all of us. And I’m with you and we’ve talked about it before offline, in America unfortunately we have this “What have you done for me lately?” mentality. And yeah, while—while truck drivers delivering groceries and delivering diapers and stuff was a really feel-good moment for a while, my fear is now that there are people that are, you know, flipping truck drivers off and getting mad at them because they’re parked on the street delivering groceries and someone’s now trying to get back to work. How I think you fix it is I think you start at the state level and work with your local trucking association to get the word out there, because it’s a great message. It is a great message and it’s an easy one to sell. You and I’ve talked about this: plaintiffs’ lawyers have a naturally built-in narrative. You know, “Mother of the family dies in tragic accident,” “Child taken from parents too soon,” “Father crippled”—those are narratives in itself. We have to come in and say, “Here’s a 30-year truck driver who has done nothing but dedicated his life to delivering freight for people, who unfortunately had someone pull out in front of him.” I like that narrative. Why don’t we sell that narrative?

[16:47] Bill Yeah, I think my—my teenager could get in front of a jury and—uh—and put on—and put on that case.

[16:54] Mike But well, I had a younger plaintiff’s lawyer say to me about a week ago—we were kind of tussling during the deposition over reptile questions—and he kind of made the comment, “You know, we take this case to trial, we’re just gonna whip your ass.” And I said, “God, with the facts you have, I hope you can. I—I could win this case.”

[17:15] Bill Yeah. Wow. Yeah, and that’s—let’s end on that note with kind of a little bit a couple of other questions about reptile. Do your clients understand how dangerous this is? Because I tell you what, over the last ten years—not until recently, especially in the first five years of this movement, which by the way is pretty much the only thing that the plaintiffs’ bar is going to right now—I can’t tell you how many claims people, or in-house people, when the—the concept of reptile came up, they laughed it off. They called it a sham. “Oh this is—this is just another golden rule.” You think clients are finally getting it now? Because man, they’ve—they’ve been doing some serious damage in that deliberation room.

[17:59] Mike Yeah, I think once a carrier, a client, has been touched by the fire, they’re true believers. But I can tell you, interestingly enough, they’re are oftentimes where all be talking at the seminar and say, “Okay, let’s talk about the reptile theory. Who here has not heard about it?” And I’m gonna say there’s twenty-five percent of the people out there that have not heard about it. But the seventy-five percent who have, I think they’re sort of evenly split. There is the people who are like, “We need to get on it early and we need to really work with our drivers,” and then some who say, “Well, we’ll just let our lawyers deal with it.” That’s been my experience.

[18:32] Bill Yeah. And then finally, again with my experience with dealing with this reptile thing for now the what, 10th year, is a lot of this, “Well, I’ll just file a motion in limine to get rid of this.” If you’re—the likelihood, I think the hit rate on those is maybe two out of ten. But would you ever rely on a judge to protect you? I mean, isn’t that kind of a losing strategy?

[18:59] Mike Well, it’s certainly not—let me tell you, certainly not the hill I would want to die on. If that’s my last defense at trial is to count on the judge to help me out, well maybe that’s my only strategy. I don’t think that would be the best one. I think you have to take the battle to them. And I will tell you, I—I was in a deposition till seven o’clock on last Thursday night. My corporate rep was being questioned heavily on the reptile and had been coached well and taught well, and attended— one of y’all’s seminars at their national offices up in the Northeast and really understood the process and was standing tall. And this lawyer lost his mind and kept saying, “Mr. Smith, it is a yes or a no question!” and—the guy said—”You know, I wish I could answer you but it’s—it’s not, because it depends on a lot of things.” And so when we got done and I was talking with my corporate rep on the phone, I said, “The fact that that guy went off the rails tells me you were doing exactly what you need to do.” But you had—you need someone, Bill, that can stand up and take the punches in the nose.

[20:07] Bill Well, the good thing is the training program we have for this essentially precisely trains that witness to take those punches in the nose. In fact, I punch him in the nose, you will punch him in the nose. They’ll get used to the punches, but then they learn how to sustain those punches. If they do get hit, dodge those punches when some of those, you know, real unfair questions come out. And again, reptile has been very, very beatable if and only if you get that early start and you’re very aggressive. You start preparing for reptile three months before trial, I mean, and all the depos are in the can, I mean, what are you gonna do?

[20:46] Mike At that point the die is cast, you’re stuck.

[20:52] Bill Absolutely, absolutely. Well Mike Bassett, thank you so much for your time. Take care and be safe there in Dallas. And I’m sure we’re gonna be doing this again because things are moving very quickly in the industry and we’re gonna need updates from you.

[21:04] Mike Very good, Bill. Thanks for all your time. Stay safe in Florida.

[21:07] Bill Thank you. Take care, Mike.