Episode #48 – Trucking Litigation

Trucking attorney Doug Marcello joins the podcast to discuss trial tactics for trucking litigation cases. Doug shares the process he uses in planning his cases, the importance of persuasion, and how he builds a story for the jury right from opening statement. Doug and Dr. Bill Kanasky also talk about the impact of Reptile on trucking litigation with the ubiquitous – and dangerous – challenge of the “safety is our top priority” mantra in the transportation industry and how to address this when you have clients who are actively promoting “safety” in their company’s marketing materials including websites, employee manuals, vehicles, buildings, and more.

Full Episode Transcript

[00:04] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky. Today, very happy to have our guest from the great state of Pennsylvania, Mr. Doug Marcello. Doug, how are you?

[00:18] Doug Doing great, Bill. Thank you very much for having me.

[00:20] Bill Now, this is going to be a great talk, and I know you and i have—we’ve done a couple of these together with you the host and now I’m the host, so the roles are reversed. Doug, tell me a little bit, a little bit about the uh, yourself and the types of cases that you and your firm are currently working on.

[00:37] Doug Sounds good. Uh, we’re a trucking defense firm, that is uh, what our focus is. My partner and I both have our CDLs. We’re based in the trucking center of Carlisle, Pennsylvania. Uh, but I’ve had cases in 35 states, being admitted pro hac, specially admitted in those cases. So that’s generally what our practice is. Very active in the—on the state board of the Trucking Association, involved with the American Trucking Association Safety Management Council.

[01:05] Bill And how big of a Penn State fan are you? Let’s just get this out of the way early.

[01:10] Doug There you go. Well, as you notice behind me…

[01:14] Bill So, I—I—I—we have, we have shared our love for the Heels as well, so…

[01:18] Doug Absolutely. Carolina basketball. Duke is a four-letter word, just keep that in mind.

[01:22] Bill Let’s just say, watch out for the D-word on my podcast, please. All right, sorry about that. Now listen, I tell you what—I’m many of these podcasts, uh, we have talked a lot about what to do and what not to do during discovery, uh, and a lot during trucking cases. But what we haven’t talked a lot about is trial tactics, and I’d like to talk a little bit about it today. When you are approaching a trial, what is your philosophy? How do you—how do you get your mindset and how you’re going to organize your case to take this in front of an actual jury?

[01:56] Doug Uh, Bill, you and I talked about this a couple weeks ago when—when we did my podcast. And it is: when the case comes in, the first thing I do is outline my closing argument, because I look at it as almost as being a movie director. You know, I—I get in my mind how I want to present that case to the jury in the closing. I start with: what are the evidence, or what is the evidence that we have? What are the facts I’m dealing with and the proof? And then, what would I like to show, and can I get that? And so it’s—it’s starting with that end, because I think if you don’t have a picture in mind, I’m not sure that you can really get to that point that you really want to go to maximize it. You know, otherwise people are going through, “Well, let’s do discovery. Well, let’s do depositions. Well, let’s do this.” It’s—it’s like, uh, you know, sitting at a poker table and getting, uh, five blind cards and just taking your hand to see what you have. You know, let—let’s look at the hand we want to have and then strive for that.

[02:54] Bill Yeah, that’s—that’s really, um, a great point. And what I have seen and—and I know that—well, how many years have you—have you been doing this, Doug?

[03:02] Doug Uh, too long, Bill, too long.

[03:05] Bill I didn’t want to age you, but man, you’ve been doing this for quite a while.

[03:09] Doug 38 wonderful years. And I had the advantage, Bill—you know, it darn near killed me—but I started out in a small firm. Uh, they had one insurance client, the senior partner didn’t want to do that work, so I am right out of law school thrown into it. So, uh, his primary practice was motor vehicle violations, so I got a lot of hearings before magistrates on tickets. I got a lot of workers’ comp hearings, and I got the trials. The second civil case I had was a incomplete quadriplegic, 2-week products liability trial, and we were the target. And our excess carrier had gone belly up, so, uh, that makes you old real quick, I’ll tell you. So but yeah, that’s—that’s kind of the background. And I say that, you know, I look back on it and it was great experience because I got to do the workers’ comp, I got to do more doctor’s depositions than anyone ever would, the hearings… I got to not only do more cross-examinations, but I got out of myself that notion that everything is truth, justice, and the American way. It’s, you know, witnesses are not going to tell the truth. You can’t just, you know—it’s like My Cousin Vinny, “Are you sure? No kid,” do you know, or not. And then to get thrown into those trials, it’s kind of like, oh my god. But at the end of the day it was, uh, great and it didn’t kill me, so you know, I’m stronger for it, I guess.

[04:41] Bill Outstanding. Um, so now listen, I’m a scientist, and so I study trial tactics: what’s effective, what’s not effective. And I—it—my definition of persuasion, right? I think it’s a combination of an art and a science. I think there’s a total science behind it in the way you order your information, which I want to get to in a second. It’s very important because in any storytelling model, how you order the information has a drastic influence on how it’s perceived. But you also have the art: the delivery of persuasion. What would you tell—because quite frankly, this is going to sound terrible, but you know, I—I tell the truth, this is how I get in trouble—millennial attorney. Everybody’s complaining about millennial jurors, that’s not them. A millennial attorney has little to no trial experience, and there’s not a lot of trials today. What are you telling your younger attorneys on how to get in front of these juries? Because what I’ve seen so far, mock juries, I’m not really impressed.

[05:46] Doug Yeah, I—you know, I—I think the—the fundamental thing is to, uh, be likable, quite frankly. And, uh, you know, we’re talking about Bob Tyson had talked about that and—and you know, it’s one of those things though, you know, you seize upon in terms of—you know, that’s exactly right, because I thought that for 37 years. You know, uh, the other thing is, uh, don’t act like an attorney. You know, uh, there are—there are concepts people have from television that this is how an attorney acts and how they have to act. And you know, there are a lot of people out there who aren’t wild about attorneys who have bad experience with them. You go in, you be open, admit your issues, admit your problems. Uh, and I think you and I talked last time I was on your podcast, I said, you know, my theory is: I can always defend, uh, a bad truth. You know, I—I can’t defend a good lie, you know, ethically or any other way. It’s just: you tell the truth, you deal with it. Uh, you know, I had a case once in Connecticut, rear-end accident on 95. Our truck rear-ended a guy. Uh, I—I was—I admitted we were at fault in the case. Uh, the jury comes back at the end and told me I was wrong, uh, that we weren’t at fault. Uh, and they didn’t say we weren’t at fault, but they gave no—no damages on the case. In fact, I’m there afterwards talking to the judge, and two of the jurors put their head back in the courtroom and gave me the thumbs-up sign, like we took care of it. So you know, you just—we had problems, we admitted it, but let’s take a look at what it is. But I’d be interested to hear, uh, from a scientific standpoint, because you know, a lot of what I do has just been over those 38 years, kind of developing intuitionally.

[07:33] Bill Yeah, let’s—let’s talk—let’s talk a little bit more about trial tactics, but particularly about opening statement. I do a lot of consulting on opening statements, and things have, um, changed over the decades of, you know, the jury… Well, in your career, the jury pool’s drastically changed. In my career, there’s kind of been one—one flip over. And so now you have the Gen X and Gen Ys really flooding, uh, the pool. Doug, these people do not have the attention span to sit there for a one-hour opening statement. I am trying to train these younger attorneys like: you got like 20 to 30 minutes max, or these people are going to go out. And one of the mistakes I see—and I want you, your feedback on this—is that the younger attorney thinks they have to go up in front of this jury and tell the entire story, which takes an hour and a half. And I’m like, no. And like my good friend always used to say is: “Don’t let the facts get in the way of a good story.” You can tell a story. So when it comes to telling a story, what types of things do you want to focus on during your opening, but also some of the things that you’re going to ignore because you know that the experts are going to get into the—the weeds, right?

[08:47] Doug I think one of the things, Bill—and you know, I—I think it is generational regardless of—of what generation we’re talking about now—but I think young attorneys—and you know, I—I’ve been there—there’s an insecurity. And you—you feel a need to, “Gee, I don’t want to leave this out,” or—or “What if I don’t?” And over time you kind of develop a sense of: these are the high points. Maybe it’s the one argument. You know, uh, a case number of years ago, you know, where there was, uh—that they had, uh, been—uh, the plaintiff was a little sloppy in answering their—their interrogatories and basically almost gave away the case in their description of the accident of it. And you know, I get up and I said, “You’re going to see in sworn court documents, boom boom boom,” like that, and just kind of get the focus and hit the high parts. Lay out what our story is going to be. But I want to open up with: this is why, you know, this is what we have going for this, this is why the case should be in our favor, and then kind of lead into it what they’re going to say, and maybe—maybe put some teasers out there in terms of, you know, see how that turns out.

[09:59] Bill Yeah, I agree because I agree, especially it’s 2020. If you don’t come out guns blazing, you have to come out of your corner swinging. Anyway, I see a lot of—and quite frankly even with—even with more veteran, uh, attorneys, they hand me their opening statement. This happened a couple of months… Hands me his opening, he goes, “Can you take a look at this?” So I took a look at this and I got my marker, I crossed out the first paragraph, which said, uh, “Here’s who I am, uh, here’s my law firm. I’m so happy to represent my client XX.” Paragraph: “Thank you so much for your civic duty, you know, being a juror is so imp…” XX. Yeah, I—I deleted the first three paragraphs, starting on paragraph number four. And he’s like, “I can’t do that.” I go, “You better do that or you’re going to lose this case.” I go, “Plaintiff attorney just got up and bludgeoned you for 45 minutes. If you don’t come out swinging—meaning causation, blame the—blame something—but sit there, you got like three minutes to hook them.” Talk about how maybe that first three minutes, what you want to do with that jury? Because if you wait, it’s going to be trouble, right?

[11:11] Doug I want to get out there first: “Here is our theory and the basis for why it’s right,” boom, right out the bat. And same thing though, you know, a lot of it comes over time. When you’re younger you kind of like to, or some people just have a comfort level of: you want to build up momentum and get your comfort and talk about this and that. But you know what—and you know better than I as a social psychologist in terms of what’s, uh, like YouTube—I think what they say: you’ve got three seconds to catch somebody’s attention and boom, they’re going to go into the next video. Uh, and it’s kind of like with the attorney. It’s the converse of what I do in, uh, depositions. Using depositions, they’ll start off with the plaintiff: “What’s your name? Where do you live?” Go through like that. They let the plaintiff get into a comfort zone. I want to—I start out with: “What injuries do you attribute to this accident?” And let’s go down through there and not let them get that comfort. So I think that’s why a lot of attorneys do it—it gives them a comfort. But I—I think you’re, you know, again, you’re exactly right. You got to counter their points right away, make your points, and make the jury realize there’s two sides to the story and yours is a pretty darn good one.

[12:22] Bill Yeah, and so in psychology… This is the whole concept of what we call primacy. So what I mean by primacy is that the first three things that come out of your mouth, the juror brain is going to value more than the next three things that come out of your mouth. And it’s automatic. There’s no like cognition with that, it’s just way—that’s how the primacy effect works. The first couple things you say must be the most important, automatically. So you think about how you start your opening statement… Well, you better blame somebody or something else for the accident, right? Or—or even better, you attack the plaintiff’s damages award, right? Or what they’re—what they—what they… You’ve got to go on the attack. But then for example, as far as you know, putting your client on the stand, I see the same mistakes. You put your truck driver, or you put your doctor, whoever, and you waste 20 minutes on their background, their training. No. The first question should be, “Did you do anything wrong in this case?” Right? That’s what the jury wants… what is—what are your philosophies about when you’re—when you’re either rehabilitating or calling your own clients on the stand? What are you trying to accomplish in front of the jury?

[13:32] Doug You know, I—I have never been hurt, Bill, by a witness I didn’t call. All right? You know, so number one: do I really need something on this? And sometimes it’s just to show the jury this person doesn’t have horns, you know? But you know, uh, and I’ve had—I’ve had cases where the—the—you know, we had problems, where I put my client on there to—to hit a couple finite… I need to verify a photograph. And it got across: number one, you know, they’re not a terrible person, the jury got to see him. Number two, the plaintiff never thought I’d put him up there and was totally unprepared for him. Uh, and so to go that route. More importantly, and you said the experts: what I do with the experts is I start out, uh, “Did you examine this case for me?” “Yeah.” “Did you look at all this?” You know, a bunch of stuff. “Yeah.” “Come with opinions?” “Yeah.” “What are your opinions?” Boom boom boom boom. Okay, let’s talk about how you got to those opinions. What did you look at? What was important to you? But I figured if nothing else, in the first five, ten minutes, the jury has all of that witness’s—their opinions, the substance of it. And then it’s a matter of, you know, if they—if those are acceptable to them, they’ll have the bases for supporting those opinions and to kind of support the conclusion they came to and give them that to argue in the jury room.

[14:51] Bill Excellent, excellent stuff. Well, let’s wrap up with, um, arguably the most popular topic, um… The reptile attorneys are not going anywhere. I mean, this is going to be a long time, particularly when most industries—it’s not just trucking, Doug—but this whole “safety is the top priority.” The hotel industry, airline industry, trucking industry, healthcare, products, construction—they’re all saying the same crap. And the plaintiff’s bar is fully taking advantage of that. How—how have you dealt with this issue? Because I tell you what, I get called in a lot of cases, particularly in trucking, and that—this whole “safety’s our top priority” phase… It’s in the employee manual, I’ve seen it etched across the wall in the lobby, Doug, of the trucking company lobby. What types of things do you do to get around that? Because if it’s sitting there in black and white, that’s a pretty tough position to be in.

[15:52] Doug Well, couple things, yeah. Number one, uh, before the accidents, you know, usually we help to try to work with folks to realign their manuals, those type of things. Either to, you know, say “you know, that wording could be problematic” or “let’s—let’s add some just kind of take it off of it.” Number two, let’s take a look at it and do an audit up front to know what we have to deal with and then be able to deal with that as well. Uh, number three is: many times we’ll explain it that these are aspirational. You know, that these are what we’re going for and, you know, that we are trying every day on that. And that, you know, sometimes we don’t meet those aspirations, but it is, uh, human neglect or human nature rather than malevolence in not meeting that. And then ultimately, one of the big things, Bill, is—is many times I welcome, although the clients are a little various—I welcome somebody, uh, with a punitive damage case against a good client, because now I get to show that we don’t need punished and we don’t need deterred. “Here’s this great company.” I’ve got one now, you know, these are all the safety awards they won, this is everything they do, this is all the classes they do, and this is like “citizen of the year.” And in fact, one of them, the owner of the company, privately owned—that guy is citizen of the year, and this is who they’re claiming needs punished. And so, you know, it gives us the opportunity to—to show that the—the true citizen, uh, qualities that these companies have. What thoughts do you have on dealing with that, though?

[17:28] Bill Well, it’s—it’s tough because you can’t say safety is not important, right? And so what I typically train witnesses—safety directors and corporate representatives—to say: “Safety is one of the many things that we value at this company.” In fact… I’ll tell you what, and I have a slide on this in my—my—my reptile CLE, and it’s a circle. And it has safety, it has effectiveness, it has profit, and it has quality, and there’s arrows connecting all of them, right? And driving—I was in Wisconsin, and I—I was going to the headquarters of an unnamed, uh, trucking company. And this sign is out front at the front gate, and I found—I liked—I saw that, I said, “That’s it.” I go, “That’s the answer to these questions.” Because safety helps you be more effective, right? Being effective helps you be safer. Safety improves quality, quality… And by the way, how do you—this is… Well, I wasn’t done with—I still have a couple more questions. These companies don’t… it’s like everybody gets scared talking about money. Yes, we want to make a profit, because profit makes us safer, right? How do you deal with this whole dealing with things like profit and revenue when you’re maybe say prepping your corporate witness? You can’t run away from those que—it’s okay to want to make a profit, right?

[18:45] Doug Yeah, yeah. We’re the business here. We—we give jobs to X number of people, we help the community, we do this, we do that. And—and we are a business. And you know, particularly today post-COVID—or I shouldn’t even say post-COVID, mid-COVID, but past the initial burst—you know, that’s where trucking was the lifeline of America. And you know, we—we got a lot of kudos on that. You know, people came to realize what those of us in the industry have always known: that if you bought it, a truck brought it. So you know, that—that—that’s kind of where we’re at on it today.

[19:20] Bill All right, well Doug, thank you so much for being part of the podcast. Excellent. I mean, I really enjoyed my time with you and working on your podcast, and let’s get together soon and we’ll do it again, okay?

[19:30] Doug Perfect. Love to. Thanks again, Bill.

[19:33] Bill Thank you.