Episode #72: Trucking & Construction Litigation

Eric Miersma, Attorney with Balestreri Potocki & Holmes, and a former commercial truck driver, joins the podcast to discuss both trucking and construction litigation. Eric compares and contrasts the two different types of litigation, noting that construction players often have lots of experience with litigation but with most of the smaller trucking companies that he works with, they often have much less experience with litigation. Eric and Dr. Bill Kanasky discuss witness performance at deposition and trial and how Eric approaches the witnesses he works with in order to build trust and rapport. They talk about the challenge of working with terminated employees as witnesses, as well as foreign born witnesses. In addition, Eric and Bill discuss the strategy of admitting liability and how to position this with the jury. Lastly, they touch on the new challenges of jury selection in the current world of social unrest, political turmoil, and Covid.

Full Episode Transcript

[00:05] Bill Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences. Today, broadcasting live from West Palm Beach, Florida, in my hotel room. Good to be on the road. Very special guest today, Eric Miersma. Uh, and Eric, you’re in—you’re over in San Diego, correct?

[00:24] Eric I am. I am. I don’t know how that compares to West Palm Beach, but we seem to have picked a couple nice spots.

[00:30] Bill Perfect. The beach. So we’re going beach to beach kind of here. Um, Eric, I—I read your bio and I found it fascinating. Can you tell us about what you did before you were an attorney and how that helps you be an attorney today in the industries that you work in?

[00:51] Eric Well, you know, I did a lot of stuff to get through school, but I think the thing that I probably had the most fun doing and what most informs me now is I was a licensed OTR driver. I worked for a couple different companies and, uh, yeah, I—I, you know, spent some time driving and got to see a lot of the country, met a lot of people, and learned a lot about the lifestyle and the rules and—and just, you know, what it’s like to be out there. And I—I think that really helps me relate to my clients, especially the drivers. I mean, I have a little bit of an insight into what these poor guys have to go through day to day.

[01:26] Bill Wow. Um, that’s—that—that’s really, really incredible. I don’t want to hear about the truck stop stories. We’re going to leave those out of this particular podcast, if that’s okay.

[01:39] Eric Good. Excellent. Excellent. And I’ll pretend that my log books were always in perfect order as well.

[01:45] Bill Yes, of course. Now, do you also do some construction litigation?

[01:50] Eric I do, yes. I—I cut my teeth doing construction litigation in Southern California and, uh, you know, all the tract home developments out here and big condo buildings downtown. And that really taught me a lot about indemnity and risk management, risk transfer, complex litigation. And I find that those skills really transfer well to trucking litigation with multiple parties and lots of interesting, you know, lease arrangements and so on.

[02:19] Bill That’s—that’s—that’s incredible. Uh, great experiences to of course bring in into law. How would you compare and contrast those two areas of litigation? Because I’m sure they both have their unique headaches, right?

[02:35] Eric They really do. And you know, what I found in construction is—is you’re often blessed to be working with very sophisticated clients who have a lot of experience in the industry, of course, but then also with litigation. I mean, it’s a—accepted fact of life in Southern California and probably in most places, if you build something, you might get sued for it. And, um, you know, they’ve—they’ve learned the hard way over the years how to manage those risks, either through their contracts upfront or during the litigation. You know, they have people who are experienced at giving deposition, who are experienced at producing documents. Now when I get into the trucking arena, what I see is—is me in particular, I work with a lot of smaller operators, a lot of smaller companies, and for most of them, this may be the first time they’ve ever been sued. They have zero litigation experience. And, um, you know, we kind of get into that a little bit I think, but these—these guys are really struggling to understand just what’s happening to them. They’re at a completely different level. And so I find myself having to do a lot more education with—with the trucking companies and you know, hopefully it pays off for them.

[03:44] Bill Yeah, that’s a—that’s an excellent point. Um, before we go any—tell us a little about—tell us about the firm. Tell us about the—the types of cases that—that you handle and uh, maybe a little bit of a background on the—on the law firm.

[03:59] Eric Yeah sure. Well I’m a member at Balestreri Potocki & Holmes, and we’re a boutique law firm that just do a little bit of everything. We specialize in general civil litigation, construction, transportation, employment, uh, we do some auto dealership, uh, law as well as get into some premises liability, and we even work with, uh, draft beer and cannabis companies in San Diego. So we’ve been, uh, continuously expanding our business and, you know, trying to, like the rest of the world during COVID, adapt and move on. And—and uh, yeah, we’ve—I’ve worked at this firm now since I was a law clerk, since way back in the day. We won’t say when that was.

[04:43] Bill You don’t want to age yourself Eric, I mean come on. [Laughter]

[04:47] Eric So I don’t know, you know, it’s a lot of the people have been with us a long time, and I think that says a lot about our collegiality and the work environment. And—and—and it also helps us build a really professional, uh, set of goals and standards when we represent our clients.

[05:04] Bill That’s—that—that’s outstanding. Now you and I have done a podcast before, uh, for DRI. And, uh, I think that was a great series of—of podcasts. And something that always comes up, whether it’s construction litigation, uh, whether it is, um, transportation litigation, is the—uh, the deep importance of effective witness performance both at deposition and trial. Uh, and now that you have, you know, a very active, uh, plaintiff’s bar that’s using a lot of reptile tactics, uh, tell—tell me how you approach, uh, when you work with your witnesses and—and what you know that you need to accomplish. Because as we both know, if witnesses don’t perform well, that could lead to very, very bad things—meaning nuclear verdicts and the word nuclear settlements.

[05:56] Eric It is. I, you know, kind of the first rule of—of getting ready for a witness, uh—dep—what is this? Deposition or just in general dealing with your client—is to avoid surprises. I find that the very first thing I do that gets me the best information is—it’s maybe this is obvious—is getting a hold of your client, your driver or the safety officer or whoever is in charge of the motor carrier, and just talking to them and interviewing them. Getting as much information from you and trying to build that rapport so they trust you and you in turn can trust them a little bit—that they’re not holding something back or there’s some skeleton in their closet. And you know what I find, we touched on this earlier, is I deal with everything from companies who have professional witnesses—these folks are big operators, they’ve got people in-house that are always produced as the person most knowledgeable or the person most qualified. They—some of these people are trained, uh, to the nth degree. They do mock trials, they have lawyers, you know, prep them endlessly just for practice, um, and you really know what to expect and they really know the company and they know how to respond to reptile tactics. At the other end of this extreme where I’m—usually find myself—is dealing with witnesses who’ve got no experience whatsoever. And—and they may—there may even be a language barrier as well. And—and when you’re—when you’re having to deal with that, I spend a lot of time just, uh, you know, trying to educate them, trying to teach them what a deposition is. Or, you know, I can’t even get into the nuances of reptile theory, I just have to make sure they—they pronounce their name correctly. And um, you know, it’s—it’s that, I think. So my biggest concern with those witnesses is to just go over and over their story with them, or the version of events, and—and try to get all the facts. Try to explain to them why some of this stuff is important. You know, why it’s—why it’s important that they don’t say things like, “Yeah, of course my goal is always to be the safest driver on the road,” or something like that. And it clicks. You know, they’re smart people, but they’re just inexperienced. And so if you can show them, “You know, the plaintiff is going to ask this question and here’s why it’s really important,” you know, and—and you kind of have to take them down that road. So it’s a lot more time intensive. You have to spend a lot more time with them. And, and frankly, that’s even hampered by the cases that are involved. If you’ve got some small little case, man, your carrier, whoever’s paying your bills, is not going to want to see you run up hours and hours and hours of witness prep time. So that can be a challenge too. But I, uh, definitely you see the results pay off when you—when you see the light go on in your witnesses’ eyes. They get it, and now you’ve given them the tool to handle those curveballs in deposition where you can’t possibly prepare them for everything that’s going to happen. You can just try and teach them to—what to do if it does happen.

[08:52] Bill Yeah, I—I think witness training and preparation—I provide more of the psychological, emotional, you know, cognitive behavioral, uh, training. I think it’s really worth every penny because it could really save millions on—on the back end. And it helps your—it helps your client, and it definitely helps someone like a driver. How do you—how do you deal with the very sensitive topic of witness preparation of a witness that has been terminated and now they are a former employee?

[09:27] Eric Wow. You know, very um, very carefully. Exactly. And “it depends”—the other good lawyer answer. I actually have a case where I’m dealing with that right now. The—the driver quit about a week after the accident, never told his boss the accident even happened. And, uh, months later they got sued and the owner is like, “What happened? I have no idea. First I’ve ever heard of this.” Um, so I guess the biggest issue for me in dealing with the witness who’s no longer an employee is—is why did they leave? You know, were they on good terms or bad terms? Were they fired? You know, sometimes people just move on or maybe they get laid off because there wasn’t enough business, enough work for them. I want to find that out as early as possible. Um, sometimes the witness, the driver, or the employee can be a better witness for you than the actual employer. You know, they just don’t know what happened or they don’t care, or you know, there’s all types out there. So my—my first goal is always is to get as much information on the front side as possible and—and try to make that former employee understand why he should care about this at all.

[10:34] Bill Which is often difficult, um, to try to—to try to motivate them.

[10:40] Eric Well, I could probably use you, Bill, in that respect. I mean, that’s the psychological aspect is, you know, how do you get these people to be motivated?

[10:47] Bill Yeah, and I see like—like, this is your name on the line. I mean, you know, especially if they didn’t do anything, uh, wrong, or it’s very limited liability, to say, “You know, why you’re going to let this plaintiff attorney do—you know, they’re going to drag your name through the mud at trial, right?” I mean, let’s not let this happen. And then show that even though they’re not an employee anymore, that you’re there to, you know, provide, you know, the emotional support, particularly, um, to them. Because you know, litigation is a very stressful, um, process. And I think all witnesses, um, need that—need that type of support. Now, you know, we’ve—yeah, everybody knows about the driver’s shortage. Um, this has increased the percentage, uh, consistently of foreign-born drivers. Um, so let’s throw another quick wrinkle into witness preparation—we have the, both language and times a cultural barrier. In my experience, talk about taking baby steps—I mean, it’s a very slow process with the foreign-born witness. And oftentimes they come in with a lot of illogical fears and anxieties because it’s a cultural issue and maybe they’re scared of the American legal system. Um, how much are you seeing of—of—of that in the industry?

[12:05] Eric A lot. Oh, an awful lot. Um, I would—and it particularly affects me here in San Diego because we are obviously next to an international border. So I deal with a lot of cross-border traffic. I deal with a lot of drivers who were born and raised in Mexico and may even still live across the border but, you know, cross the border to drive over here and work here. And—and um, and often, you know, we have—you know, the—the—the Spanish that’s spoken in Southern California is—is a unique language all to itself and so there’s a lot of different terminology and words that—that don’t easily translate. So I have a very large roster of interpreters that I work with. And I also work with a lot of Iraqis, a lot of Persian drivers. And it comes back to trying to understand and meet your client. Um, that first phone call is so important. You know, you’re—you try to figure out who they are, you learn about their experience. Um, I see—I see some people that are working here that were very successful business people in another country and they’ve come to this country and maybe at one point they were, you know, they owned their own construction company or maybe their own trucking company or—or were doctors or lawyers or whatever. And they find themselves in the U.S. and trucking jobs—because there is a shortage, they can get those jobs and they can get hired and try to get their feet on the ground. But they’re very smart, very educated people. And so working with them, once you—you explain the legal system and how it works to them, they’re usually quite easy to work with. They grasp the concepts quickly. The flip side of that coin is—is I get folks who find themselves in a driver’s seat who have very little education, have very little understanding or sophistication about the legal system, and it is a huge uphill battle. Um, and at some point, all you can do is try to just, uh, you know, the truth will set you free, you know, just—just tell me what happened and don’t say anything else ever.

[14:07] Bill Shut up. Um, let’s—let’s switch gears a little bit to construction litigation. My experience with that, which is very different than transportation, is that there’s typically multiple defendants: contractors, subcontractors, owners. And talk—I mean, the finger-pointing that goes on is absolutely incredible in construction litigation. What—what is your approach, uh, when—when you’re—you’re working up a file and you pretty much know three other parties are probably going to be pointing at you?

[14:39] Eric Yeah, construction, that’s—that’s the name of the game, right? I mean, we’ve represented a ton of general contractors and developers over the years, and that is always, you know, you’re the biggest target. And you also have, hopefully, the best contracts. So first thing you’re doing is you’re like, “Who else can I bring into this mess?” You know, “What subcontractors can I do? Are there design issues that, you know, need to be dealt with and brought in?” And, uh, you know, you throw in different types of insurance—maybe there’s OCIP policies or wrap policies—and you’re going to get countersued or you’re going to have to defend the whole mess. So you’re—you’re really looking around carefully. Um, and you know, and if you’re a subcontractor, you’re—you’re always looking for, you know, “Who else is going to counter claim against me?” Maybe I’m a framer and, you know, so now there’s going to be all kinds of issues that they’re going to come after me. That the drywall guy is going to sue me because there’s cracks in his drywall and he’s going to blame my framing because it’s crooked or something like that, or moved. You know, and trucking, it’s a little different. You know, when you come into trucking and you—you—you’re looking around for who there could be for multiple defendants or co-defendants, you get some interesting situations. I mean, there’s the obvious, you know, maybe the shipper or the broker or somebody like that. Um, but not only so obvious are, you know, when there are joint ventures or there are other, uh—maybe there’s other drivers even. Maybe there was a team driver or something that somehow got involved with this. Maybe there’s—uh, the—the—you get these unique arrangements with owner-operators and who they’re leasing their equipment to and who’s actually providing their—their paycheck or their insurance or doing the maintenance on it. You know, we all know there’s all these different entities and you’ve got to really start to figure out. Um, you know, in those cases, honestly, I like to work with the experts early on. Um, you know, tell me, is there a mechanical problem with this that contributed to the accident? Should I be looking for the maintenance guys to see what happened? Or, you know, if I’m looking at the lease agreement and I see some really complex language going back and—and I find out that the person who owns the truck has nothing to do with the driver or the motor carrier or the dispatcher—all kinds of questions start to come up. So you got to do that early investigation and research. And—and if you—if you have the luxury of time before you have to respond to your complaint and get that cross-complaint on file, you know, you can try to do a little of that. Sometimes you got to shoot in the dark and just stick that cross-complaint out there with a bunch of Does and hope for the best.

[17:00] Bill Hey, all is fair in love and war. Oh man. Um, let’s bring up a very difficult, uh, topic. So I’ve been getting a lot of phone calls on this. Um, cases in which you’re admitting liability, um, probably never the place you want to be, right? Um, particularly for trial preparation. What is your philosophy? Because no one agrees on this. No one agrees. You know, I’m a big fan of counter-anchoring and really attacking the plaintiff’s completely inflated numbers as early as possible and early and often, um, at trial. But then the type of tone that you take—you have to—you’re—you’re skating on thin ice when you’re admitting liability, right?

[17:50] Eric Yeah, you really are. Um, it—it’s a kind of a double-edged sword. On the one hand, at least in California, you—you do get some benefits from admitting liability. You can try to take the motor carrier out of the picture and get rid of those negligent entrustment, negligent hiring—you know, the motor carrier’s record. You know, if you’ve got a real fly-by-night operator and the driver is clearly at fault for this, it might be the best thing to admit liability and just get that whole mess out of the way. In other circumstances, it’s, you know, the jury’s going to want to know why are we only talking about damages here. And even if nothing comes in—no evidence about liability, um, or, you know, that type of thing—you—you still have that unanswered question and that can almost be worse than just—just fighting about it in court. But I—I think if you, you know, if you take the approach—and I think you have to, maybe you can tell me what you’ve heard and it’s different than this—but once you’ve admitted liability, you’ve pretty much committed yourself to telling the jury that look, this was an accident. It—it happened. Bad things happen to—to good people, there’s, you know, through no fault of their own. But you know, they’re trying to take advantage here. Um, this—this isn’t—you know, yeah we rear-ended them, but we were going a mile and a half and our expert says there’s no way this—this required spinal surgery. So, you know, you do what you got to do.

[19:08] Bill Yeah, and I think, um, putting the plaintiff attorney on trial is often, uh, highly effective, uh, you know, showing a lot of sympathy to, you know, the plaintiff but really putting that—that number to say, “Listen, this is not the California State Lottery, ladies and gentlemen. This is an accident.” And remind them, remind the jurors that their job is to be fair and to be—and to be—and to be reasonable. I had a case down there, um, with, uh, Liz Gain, who—uh, is a local attorney down there. And we’re—we were in a really, really bad case and we were liable and we admitted liability. And then I helped Liz construct her opening statement. She said the words “fair and reasonable” 18 times.

[19:57] Eric That’s a good strategy actually. Um, you know, one of the things I always do—yeah, when I—when I depose the plaintiff, I always ask them, um, “Who’s paying your medical bills? You know, you—know what treatment did you get? Who paid for that? Did you get a bill?” Yeah, I mean, and they often just—I don’t know why they’re not more prepared for that question. You think it’s obvious, but they—they always kind of have a blank look on their face. “Well, I don’t know.” “Well, how are you going to pay for it?” “I don’t know. You pay for it with this lawsuit? Oh, I guess.”

[20:29] Bill Yeah, incredible. Um, let’s wrap this up here and hit kind of an obvious topic is, uh, you know, the impact on COVID. Why do you get three things going? I’ve been telling everybody this because we’ve been doing a lot of jury research. Everybody’s like calling me, caught like, “Well, what has COVID done to the jury pool? What has it done to the—to the witnesses, right?” But—but there’s—there’s two other things going on. Um, the highest level of social unrest in—in the history of America—even worse than 1968 in my opinion. Um, and the political tension, right? So you have the George Floyd effect, you have the Trump, uh, election effect, then you have COVID. Um, talk about you—I mean, that’s like a perfect storm right there. And—um—um, it’s—it’s—um, I know in our jury research what we’ve seen is—um, people aren’t being nice to each other per se. Uh, they’re—a lot—I think I’ve seen a lot more, uh, emotion from jurors. Um, people have completely stopped listening to each other. Uh, and a lot of that happened pre all this stuff, but I think I’ve seen that get—get—get worse. What are you and your firm doing to try to put your heads together so then things start opening up, you’re back in courtrooms to make sure that you’re adjusting, uh, appropriately? Because I know the plaintiffs’ bar, they’re salivating over this opportunity coming up and they think they’re going to—they’re—they’re going for blood. They are.

[22:02] Eric Yeah, it’s—it’s—it—pre—it’s kind of like a big pile of dry wood soaked in gasoline, just waiting for the right match to come along. Um, you know, it’s—you want to think that politics don’t intrude into a trial, that it’s all objective and fact-based and—and everybody’s just going to tell their story and you’re going to have a perfect jury that’s just going to put aside their personal biases and—and follow the law. And of course, we all know that never happens. So, um, you know, personally and in the firm what I see is—is, you know, depending on the size of the case—if it’s a big enough case, you’re going to get a jury consultant in there and they’re going to really work with you. Um, I’ve even done this with cases in real time. I’ve had some really good juror—you know, as the jurors’ names are being announced, you know, somebody you know is texting them back and they’ve got a team there who’s running their social media accounts and figuring out who they are and what they’re all about and try to develop, you know, who has these internal biases and what you can do about it. The reality is—is my approach to jury selection is always you try to weed out the worst of the bunch. Um, you know, if—and you know, you—you hope and you can’t do that based on, you know, a lot of these political and—and social media type things, but what you can do is—is try to understand their—their viewpoint. You know, how do they approach life? How are they likely to see your client? And you really have to know your client and your company. How are they going to be perceived? Is—is this a guy who’s got face tattoos in a truck with a big chrome jaws over the grill? You know, how is he going to be perceived by a jury? Versus is he, uh, you know, a—you know, a 60-year-old Spanish gentleman and a grandfather, he’s been a truck driver for 40 years and never had an accident and, you know, he’s got 25 grandkids? You know, that might be a whole different kind of defendant that you want to put on there. I—I just—I don’t worry too much about the political point, but I—I do worry about the COVID aspect of this, as just as it affects everybody’s willingness to be there. Do they really want to hear a bunch of people fighting over a pot of money when the whole world is burning and, you know, people are just trying to get by? They may not.

[24:11] Bill Or when they’re sitting at home collecting their stimulus checks and they’re—they’re not working. I mean, it kind of cuts both ways, doesn’t it?

[24:16] Eric Yeah, absolutely. Absolutely. Um, you know, and we get a lot of—of—you know, we’re a military town and we’ve got a lot of biotech out here. We get an interesting jury pool. They tend to be, you know, relatively, uh, conservative, I think. And you also tend to get fairly educated jurors. Um, not just retirees, but, you know—it’s funny you mentioned, you know, sitting at home collecting stimulus checks. The stimulus checks has nothing to do with this thought, but the idea I’ve had people on the jury who were software developers and game programmers and they literally sat at home on their laptop all day and they were incredibly smart, very educated, but they could take all the time in the world and were totally intellectually curious about being on a jury. And that can just throw you for a loop sometimes. You don’t know how these people are going to—how to decide.

[25:01] Bill We—I know that we’ve—we’ve got a lot of work to do. Eric, thank you so much for being on our podcast. I would love to work with you in the very near future, so keep in touch. And I’m sure we—we will be keeping in touch as we start to learn more about jury behavior, uh, as we are really cranking, uh, towards 2022, uh, at a pretty good clip here.

[25:21] Eric Yes, thank you, Bill. I really appreciate it. And uh, yeah, your services are just worth their weight in gold. Uh, and uh, yeah, well, 2022. I’ve state courts out here. I’ve gone and asked for a six-month trial continuance and got it stuck out 18 months without any asking from me.

[25:41] Bill So a lot of work, a lot of work around the corner. Eric, thank you. And to our audience, thank you so much again for participating in the Litigation Psychology Podcast, brought to you by Courtroom Sciences. We’ll see you next time.

[25:54] Eric Thanks a lot, Bill.