Episode #60 – Managing trucking litigation

Trucking defense attorney Sophia Bernard of Lewis Brisbois in Tampa joins the podcast to talk about transportation and trucking litigation and her process on handling catastrophic cases. She discusses the difficulties of dealing with the emotion of the driver and the importance of recognizing and addressing the trauma the driver is experiencing due to the accident and having to relive it during deposition and at trial. Sophia also shares her thoughts on how to avoid creating opportunities for Reptile attorneys at deposition, life care plans, surveillance video, and the challenge with being a black female attorney in the trucking and transportation industry.

Full Episode Transcript

[00:05] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky, here with me today out of Tampa, Florida, Ms. Sophia Bernard, trial attorney. Uh, Sophia, how are you doing? How is the Tampa area treating you since your huge Super Bowl win?

[00:28] Sophia I’m doing well. The Super Bowl win feels good. I’m not a huge football fan, but I do enjoy football. So it was interesting, it was my first time being in a city where, um, the Super Bowl was being held and the home team was hosting.

[00:42] Bill That’s kind of weird, kind of weird. Uh, just imagine the money the city would have made if it wasn’t this year, right?

[00:50] Sophia Uh yeah, I’ve heard that. It, I mean, I thought it was a lot of people but, you know, everyone’s saying that it wasn’t nearly as many people as they would have had if it was a regular normal year.

[01:01] Bill Yeah, I heard it’s a real circus, um, and supposed to be very fun. But I wasn’t about to pay six thousand dollars for one ticket to go, not gonna happen, not gonna happen. Well, thank you so much for being on the podcast. This is actually not our first podcast. You and i did one for DRI Trucking and, uh, that was really fun, but I wanted to steal you for, for my, uh, uh, podcast. Um, a couple early questions: how did you, okay, so take me like maybe back to high school, early college days. When did it click that you wanted to be a trial attorney?

[01:36] Sophia Um, so I have one of those stories that I always knew.

[01:42] Bill Why does everybody say that? Everybody says that. “I knew from age five.” I was, I’m like, get out of here, stop it, you know?

[01:49] Sophia It’s actually, I wish I still had it, it’s in my eighth grade yearbook. Uh, when they actually ask what you want to be when you grow up and I put lawyer. I’ll be honest, like my, my dad had a lot of influence on that. I mean, he was, him and my mom, they were both always like, “you should be a lawyer, you should be a lawyer.” So at the time I didn’t really know any lawyers. Um, the only lawyer I knew in high school was my English teacher, I believe he was an attorney but he wasn’t practicing. And then when I got to college, the pre-law professor, he knew a lot of lawyers and so he would plug me in and, you know, get me prepared and help me get ready for the LSAT and applying. But I always knew. But the only, the only difference is back then I thought I wanted to be a criminal trial attorney. I didn’t want to be a defense lawyer or a prosecutor.

[02:38] Bill See, that’s where I was going, yeah. I don’t think, I don’t think any eighth graders grow up, I don’t think any eighth graders are thinking, “hey, I really want to be a trucking attorney or a transportation.” So, so when was the, when did you get into the whole transportation, uh, area of litigation?

[02:56] Sophia So at my first firm I handled two trucking cases, um, and I thought I found that, I thought it was interesting. But even then I didn’t know that there was an entire industry of transportation lawyers and that, you know, this was a whole body of law that, uh, was out there. So I handled those two cases as a junior associate and then a couple years later I left and went in-house at a trucking company. And that’s really when I dived into the transportation world and learned all about it and developed a passion to be a transportation attorney and started to definitely make sure that, you know, my legal and my career trajectory was geared towards transportation.

[03:38] Bill How, and this is a out of left field question because I’m just curious, how—because there’s a lot of huge movement in the legal field to, to, to get more women as attorneys, particularly more, uh, minority women, which I think is going excellent. But in the transportation industry, I mean is it, is it what, I don’t even know that the statistics are, what is it like to be a female, number one, in the transportation and trucking industry as an attorney, but then on top of that really a black female being in that industry, which I’m assuming is kind of dominated by older white guys, right? Is that fair enough or?

[04:18] Sophia Yeah, yeah, that’s, that’s a fair assessment. Um, I haven’t, I honestly haven’t met many women in the industry. I’ve met a couple and they’ve been great and they’ve been very welcoming of me and wanting to definitely give advice and try and help to guide. But I haven’t met many. And it’s, it’s an interesting place to be to be “only.” Um, I don’t really like it being the only. So what I want to do and what I want to get into is just making other women, black women, aware of the industry and trying to, you know, convert them over to this side and just join me.

[04:56] Bill Well, I think that would be, I think that would be pretty cool because you see some of the success in corporate law and medical and products. It’s just, I think transportation has just always been one of those kind of male dominant things. But if we could get some more, um, diversity there I think that would be a good thing for everybody.

[05:12] Sophia Yeah, and I think part of it too is that it’s not really mainstream, right? So like even for my story, I wanted to be a lawyer, I wanted to be a criminal lawyer, you know, I thought about corporate law. Those are the things that you hear about, those are the areas of law that are popular and that people, uh, usually attribute to lawyers. Even now, like I’m finding myself explaining to people what being a transportation lawyer is and how it’s different than defending auto accidents with personal vehicles.

[05:34] Bill Yeah, well speaking of accidents, if you turn on the news it just seems like there’s a big ol’ accident at least every week and oftentimes involving a, a truck of some sort. Typically some commercial vehicle. Given your experience in the industry, what are some of the, because obviously we’ve talked about nuclear verdicts, we want to prevent these things, what are some of the things that you want to do really early in these cases to make sure that things don’t get out of control and things don’t start slipping away? Because I think what we’ve all figured out is you have to be very aggressive early in these cases, otherwise the plaintiff attorney will get the upper hand and you can be in big trouble, right?

[06:24] Sophia Sure. I think so there’s two types, right? So when you get a catastrophic case, those usually directly come to outside counsel. And so, and that in that instance I think the first thing that you need to do is get out to the scene, talk to people, you know, get with an accident reconstruction expert, a biomechanical expert, get people out there. The next thing to do is speak with the driver, find out what the driver knows, find out if there’s going to be any red flags for the driver that, you know, you need to be prepared to handle and defend later on. Get with the safety director and find out what the processes are and learn the ins and out of the company. When it’s not a catastrophic injury case and the file comes to the desk, the most important thing to do is to speak with all the parties involved, and the first person I want to talk to is the driver.

[07:11] Bill Yeah, yeah. How often, um, and I would imagine this is pretty often from, from my experience, uh, in the industry working on a lot of trucking cases where, um, the driver has some significant emotional reactions to the, to the accident. And, um, um, from a mental health standpoint, um, your driver can really struggle, um, in those first couple meetings, right?

[07:40] Sophia Yeah, that happens quite a bit. And I’ll be honest, that’s actually one of the reasons why I, you know, fell in love with transportation law is because, you know, you see the news and you see out there and they’re always painting trucking companies and truck drivers to be these terrible people who are reckless and driving these trucks. But at the heart of it, there’s another victim in all these cases and it’s a driver. The drivers are always negatively impacted. Even if it’s not catastrophic, when they start hearing language about a person having traumatic brain injury or a person having permanent injuries, they might not understand that those are legal terms used to drive value. They feel like they’re responsible for causing that and it negatively impacts them. A lot of drivers who are involved in these catastrophic accidents, they don’t drive anymore.

[08:26] Bill Yeah, that’s, um, that’s sad but, um, that’s sad but true. And, um, a lot of the witness prep sessions I have had with drivers, uh, particularly for deposition, they’re a wreck emotionally, no pun intended, but they are an emotional wreck. Um, because I think it’s something very difficult, particularly in those catastrophic cases. And then, um, you know, so many of these, uh, because of the technology, um, so many if not all of these accidents are now on videotape from the, the camera, um, you know, the cameras on these trucks. I have found it very difficult to sit there and re-watch a video over and over and over, um, with it, with the driver and having them having to re-experience, uh, that. But yeah, I do think that maybe there’s a stigma, uh, that truck drivers are supposed to be these like, you know, they’re always big tough guys, right? Well, that’s, that’s not always the case. And by the way, what I have noticed, back to our where kind of we started this, the number of women, women driving trucks has actually drastically increased in the, in that industry. So now you’re going to see, you know, women drivers being deposed. Have you, have you seen that change in the demographic here in the last few years?

[09:52] Sophia I have noticed the rise of women drivers, but I’ve, I’ve personally not had a woman driver, uh, in one of my cases. But I have noticed that there, I mean, there’s a lot of organizations I’m seeing on LinkedIn here to supporting, you know, truck drivers that are women.

[10:07] Bill Yeah, I did follow that group on LinkedIn. I think it’s Women, Women and, Women in Trucking or Women in Transportation. I found that…

[10:14] Sophia Yeah, that’s the one.

[10:15] Bill Yeah, and I think that’s really cool. At the same time, what that means is as that group grows, that population of witnesses is going to go. So people like you and I are going to figure out how—because right now I don’t know how the, the female truck driver is wired up here. I don’t know yet because I haven’t really worked with them like…

[10:35] Sophia Yeah, that’d be interesting. It’ll be interesting because like you said that the men do get pretty emotional and it is a slow process. I mean, you just have to have patience with them because it’s, it’s traumatic, right? So you have to have patience with them and work and just however long it takes is what it takes to get that driver prepared. And even then they might just, just add a pure human reaction, they might be fully prepared but when they get in the situation they are going to get emotional. Like I had a driver who I thought he was doing really well in prep, he got on the stand and cried and he surprised everyone.

[11:08] Bill Yeah, and that can work for you, it can work against you, right, if it’s out of control. So yeah, I think you just, you just said the magic word: prep. Um, the amount of preparation for those folks I think far exceeds what many people think. It’s not an easy task, and with any witness that’s emotional, it’s going to elongate your prep time because you have to deal with those emotional, emotional barriers. So going forward, I know everybody in the trucking and transportation industry has understood that, uh, it, it’s good, it’s good time, it’s a good investment to spend as much time with those drivers, uh, as possible to ensure that they’re comfortable with the testimony process, but also that if you do have some disaster on your hands, you figure out during your, your prep session as opposed to during the dep or, or at trial. Now, when you and I did the last podcast for DRI Trucking, we were doing the reptile series. I’m still beyond shocked that we are in 2021 and you still have people in the transportation industry that don’t know what reptile is. I’m shocked, absolutely shocked. What, so how do you, uh, because you better take it seriously, right? Because we found out how successful these techniques can be used. What type of efforts do you take to educate maybe your clients that either don’t really understand about it or just flat out don’t know about it? Um, because I found it difficult to go in for example, um, maybe a, a smaller mom and pop trucking company and they have a various layers of insurance and you’re going in there to say work with the, um, the owner or the corporate rep or the, um, safety director and you start bringing up the word reptile and they’re looking at you like a little funny, like you’re, you’re crazy. How do you initiate those conversations on such a dangerous topic without scaring everybody to death? At the same time, you need to kind of scare them a little bit, right?

[13:26] Sophia Yeah, and that’s what I was going to say. I mean, you don’t want to scare them where they’re like, “this is the nightmare case,” but you want to be stern enough and serious enough that they’re taking it seriously. I think it’s good to have examples and show them, especially because there are some accidents who seemingly look minor but they blow up because of the reptile theory. So when you show them—because a lot of times the reason why they are hesitant is because they’re like, “I mean, property damage is like a thousand dollars and, you know, no one was injured. I don’t think this is going to be serious.” But then when you show them how reptile theory impacts other cases and you make the case that, you know, we don’t want this to happen to us, this is what has happened to other people when they haven’t taken it seriously and this is what we should do. I mean I think, yeah, also there’s never, there’s never going to be harm in being over prepared, but you can, you know, receive harm for being underprepared.

[14:18] Bill Uh yeah, that’s—the under preparation is going to cost you. And I think, I really think that’s what the reptile attorneys thrive off of. They figure there’s no way the defense, particularly an insurance company, is going to put in the time in the effort to fully become prepared, and they, I think they fully take advantage of it. So preparation, uh, definitely is the key and, and early, early preparation.

[14:44] Sophia Yeah. And one of the, one of the good ways to handle it early on with them is to taking your time with the client and going through discovery. Especially discovery that spells out reptile theory. It might not be obvious to them, but you can tell that they’re asking certain questions about the corporation because they’re, they’re lining it up for reptile.

[15:01] Bill It’s amazing how some cases start reptile, other cases don’t, but they end up reptile in time because you have—it’s really, it can pop up at any, at any point. And so, um, I’ve had some clients be like, “no, this is not a reptile case.” I’m like, “well, it may be in six months if they bring in another attorney.” I mean, you’ve—I’ve seen, I’ve seen all the crazy stuff, um. And so we, uh, we have to always be on the lookout for that in trucking because I think they’ve been, uh, they’ve been in the crosshairs for a long time by the, uh, the reptile folks. Let’s wrap up the podcast talking about a topic we have never discussed on our nearly 60 episodes of this podcast: um, life care plans. That, this seems to be a very difficult topic. Um, and obviously plaintiffs and defense counsels are never going to agree on it, and oftentimes they end up in front of a jury. And the, the part I know is that by doing jury research, during decision making, is, um, often times jurors are offended by life care plans, and it goes in both directions. They could be offended that the plaintiff attorney’s asking for a ridiculous, um, um, life care plan. Uh, but then I’ve also seen many of times where, um, jurors get, um, highly offended and insulted if you don’t provide enough of a plan because it appears that you’re trying to be a cheapskate and lowball. What is your general philosophy, uh, towards the life care plan and, and how do you get that process going mentally so you get where you want to be?

[16:47] Sophia Well, you never know when they’re going to pop up. And, and I agree. I think there is—it’s pretty much split. Some, some plaintiffs they thrive on them, others they don’t. They don’t use them, they don’t put enough energy into them. I like to approach all my cases as if there is going to be a life care plan at some point. And so I focus on activities of daily living. That’s a huge part of my depositions. I want to know what you were doing before, um, how you were at work, what type of career you had, what were your plans. Um, if there’s surveillance out there, I won’t play the surveillance video, but I’ll definitely ask questions to make sure that you’re not doing anything in the video that you said that you couldn’t do anymore.

[17:29] Bill Yeah, the surveillance video is always, uh, um, I think that’s a double-edged sword that can cut both ways. I’ve seen it completely blow up cases because it was so useful and successful. I’ve seen it completely backfire, um, because some jurors consider it, uh, you know, uh, invasion of privacy. Or the other thing is, you know, well how much of the video are you not showing me? Are you only showing me the, the, the bad stuff? Um, have, have you ever had—have you ever had the video, uh, backfire on you? Uh, or maybe you said you got—yeah.

[18:12] Sophia Knock on wood, but no, I haven’t seen a backfire, but I’ve seen it, I’ve seen where it just didn’t do anything and I’ve seen where it was really effective. And that at the time the plaintiff said, you know, the main concern was her main, um, injury was she, she was saying that she could no longer ride horses. And we’ve had, so we found surveillance of her happily riding her horse very actively on multiple days. So it worked out. The jury, the jury saw it and they weren’t pleased. And so I mean, we were able to get a defense verdict just, I think, purely because of that video.

[18:49] Bill Nice. All right, well final, final question then I’ll let you go. Um, it’s funny, I—as I talk to clients and I talk to attorneys, I always ask about their children, right? Particularly teenage children. And it’s funny because a lot of attorneys tell their kids, “don’t be an attorney, go do something,” right? Or I, I see a lot of, uh, physicians tell their children, “go be a lawyer, don’t be a physician.” If you, if you were talking to, I guess, some advanced high school kids, um, what would, what would be your advice—do you, do you think law is the right choice? Partic—again, particularly for, um, you know, females. Is that something you would actively, uh, sell to young people at this point?

[19:43] Sophia 100% I would. And I actually when I speak to college students and even high school, I’m always promoting to go to law school. My friends who have, you know, high school age kids, they ask me to speak to their daughters and I do it gladly. Um, the only thing that I caution them on is I say, if you’re gonna go to law school, make sure you have a plan. You know, you don’t have to know particularly exactly what area of law you want to do, but you need to have a plan. You need to make sure that you’re studying and you’re taking the LSAT as seriously as you would if you were in law school. Once you get to law school, you need to take that first year 100% serious and just devote everything to it. And then you need to start focusing on making sure that you’re lining yourself up for the right internships and exposing yourself to different areas of law so that way you know exactly what you want to do and not to limit yourself too. Because you don’t know what you don’t know, and before you get to law school you don’t really know anything other than, you know, the commercial, the popular area of the law. You don’t know what else is out there.

[20:40] Bill All right, you just made the sales pitch for law school. Well Sophia Bernard, thank you so much. I just got a brand new case in Tampa, so I will be heading down I-4 to Tampa here in the next couple weeks. So I’ll make sure that you and I can get together for coffee. But thank you so much for being on our podcast today.

[20:58] Sophia Thank you and I look forward to it.

[21:00] Bill Yeah, to our listeners, thank you very much for participating in another episode of the Litigation Psychology Podcast. We will see you next time.