John Nunnally, Partner at Ragsdale Liggett, joins Dr. Bill Kanasky to discuss litigation in the trucking and transportation industry in the era of COVID-19. Bill and John talk about how recent good PR for the trucking industry might impact juror perceptions, the challenges with preparing truck drivers and safety directors for depositions and what the jury pool might look like in a post-COVID-19 world. Watch the video podcast below!
Full Episode Transcript
[0:04] Bill:
Litigation Psychology Podcast brought to you by Courtroom Sciences. Very special guest today, John Nunnally from North Carolina. John, how are you?
[0:14] John:
I’m good thank you.
[0:14] Bill:
Can you please tell our audience the official name of the state of North Carolina? I want to make sure we educate people on the official name of the state. You know just sunshine state — what’s it for North Carolina again?
[0:28] John:
I’m sorry what? I didn’t understand.
[0:33] Bill:
The Tar Heel State State
[0:35] John:
You mean a nickname, not the official name— yes yeah
[0:40] Bill:
I know that’s gonna make you crazy but I won’t pick on you too much today. But uh John’s an NC State guy — I’m obviously a Tar Heel but we don’t like the Dukies, right? We’re on the same page there.
[0:49] John:
No I like Duke fine. I’ll pick Duke over UNC any day.
[0:55] Bill:
Now get out of here stop.
[1:00] Bill:
What we want to do today on the podcast is we’re doing these video podcasts for about 15 minutes to try to get a sense of what everyone’s going through with the pandemic, particularly in litigation. How have things been in the state of North Carolina and is there any sense of basically back on track in the courtrooms anytime soon?
[1:18] John:
Not at all. Courtrooms are closed through June 1st. All answers, discovery, mediations and all through June 1st unless you have consent of the parties.
The Chief Justice Beasley did amend an order last week to allow courts to require online virtual hearings if they feel it’s important enough. You don’t have to get both parties’ consent if the judge feels he wants to do an online hearing, but that’s pretty rare.
There are only a few cases that might be applicable for. The problem is once the jurors begin the backlog is going to be for the criminal matters. I mean they’re going to take precedence. We’re hearing now — this is all rumors — that we’re going to be shoved into the fall. I’m anticipating October, November to be just crazy with trials.
[2:04] Bill:
So it’s probably gonna be a log jam of sorts. With things, have you had the ability to do or been part of any virtual depositions yet?
[2:11] John:
I have not. I’ve done virtual hearings. I have so far been objecting to depositions because I get a lot out of reading people in person. I think this while effective and nice, can’t substitute. Unless it’s just some witness who’s not too important you just need some testimony from it’s just too important to me to not do that in person. I have a lot of old-school reluctance about that to not be there in person — I mean I show up to depositions even when sometimes it doesn’t seem like it’s a person who’s gonna have a lot of impact on the case.
A lot of times they do because there are little areas you can kind of read from their facial expressions that are harder to see on a computer or during the breaks how they’re reacting or what they’re saying or doing or how nervous they are. That gives you a good indication of maybe there’s something more there I can explore.
I found out one time a witness who was killing me — part of the reason was he had an agreement with the plaintiff’s counsel. It was a construction case and he could have been sued by the contractor as well. He wasn’t we were kind of figuring out he reached an agreement when his attorney was being paid for by that contractor. So it kind of shot the credibility.
I wouldn’t really pick that up unless I had been there and seen that. So to answer your question no, but other people in my office have done them and found them effective.
[3:38] Bill:
Interesting. Tell me a little bit about your firm and the types of cases that you guys tend to handle.
[3:44] John:
We have a firm of twenty-five people. We have two offices — one in Jacksonville, Florida, a smaller satellite office, and then the main one in Raleigh, North Carolina.
We handle most of the southeast mid-Atlantic states from Virginia to Florida with people licensed in all the states. We have litigation, corporate, and a real estate section.
In litigation it tends to be trucking, transportation, and construction mainly — design professionals, architects and engineers. Then there’s a smattering of other premises liability or product liability, other types of cases that come along. I’d say trucking and construction is by far the bulk.
[4:24] Bill:
Let’s talk about trucking specifically. We’re trying to make the month of May our trucking month here at Courtroom Sciences by doing a lot of podcasts and hopefully disseminating information between the defense bar.
You’ve seen a lot of, for the first time in history probably, the positive PR spin towards the trucking industry. What are the chances the industry can take advantage of that and perhaps influence jury attitudes and decision-making? Because jurors have not liked trucking companies for a long, long time.
[5:04] John:
Yeah that’s a great forum. We’ve talked about that too — how we can work that in. Probably the best way will be through jury selection, voir dire.
When you get into discussing it — hey, did you have any positive attitudes about trucking companies when you needed toilet paper during the lockdown and how effective they were?
We’re hoping that translates. Of course if they say a lot of positive things, does that mean the plaintiff side is going to strike them from the jury? So it’s going to be a fine mix. I’m hoping that residual attitude is there for the jurors but that’s a good question.
You’re right, though. Generally there’s been negative attitudes with respect to trucking companies and trucks in general in the past, so I’m hoping there’s some residual goodwill. We’ll see how long that lasts. I don’t like to be overly optimistic.
[6:01] Bill:
Yeah that would be nice. The trucking industry, talk about a heavily regulated industry. My understanding, and I think this was a federal move not a state move, but please correct me if I’m wrong, is they lifted or changed a lot of the rules for truck drivers to expedite services and to get products across the country. What are some of the things because I think it’s maybe the number of hours driven they’ve expanded that. A) How long do you see those changes staying and B) Have you noticed any safety issues with the changing of the rules or have you heard anything?
[6:43] John:
I haven’t heard anything yet and that’s an interesting point. I always worry when they make exceptions like that during natural disasters because that just gives the plaintiff’s attorneys are probably salivating over the fact that Oh normally you’d be driving off and on you would have been off for 34 you know you would have couldn’t have done ten hours
and I always worry that that’s giving them a new avenue of attack how oh it’s only because of these incredible circumstances that they were tired or worn out and so I worry about that in this case but the same token I mean they’re still especially now with the shortages of paper supplies with one thing now you’re starting to get into food shortages looking up meat and poultry
so it’s having a real impact hopefully that can you can translate that in explain that to jurors but that gives a whole line of attack for plaintiffs attorneys and some of these other exceptions are being made from the lock downs like CNN reporting today I was watching that they’re allowing new drivers to get their drivers license based on a letter from their parents in Georgia that they’re because they can’t go to DMV
Can you imagine a plaintiff’s attorney salivating over mommy and daddy wrote a letter saying I could drive then you get in an accident oh my gosh it’s gonna be so it’s right now we’re understanding it we see why it’s happening but you know in a year from now or two years or three years when the case is going to trial how much residual memory will people have over what the circumstances were right now
[8:09] Bill:
and and we’re just gonna have to let that play out now with your experience in the trucking industry John tell me because I know I work a lot in the trucking industry and I often times get called in we do a lot of mock trials and focus groups to to test the you know liability and damages aspects of the case I think what’s most challenging I want to get your opinion on this is preparing preparing drivers particularly and safety directors to an extent for testimony can you talk about some of the challenges that you see when you’re preparing your clients for particularly against an aggressive plaintiff attorney that is probably salivating as he’s walking into the deposition
[8:51] John:
yeah well you’ve nailed it and there’s nothing better than preparation and of course you’re one of the best at it is you’ve got the people who want to talk about safety safety safety how great they are with safety
and you know probably the worst thing of all is websites for these trucking companies that talk about that and that’s like and so they’re gonna come in trying to act or say or think they’re giving testimony that sounds favorable about safety and it’s just leading them down the primrose path to the plaintiff attorneys
well you didn’t do that in this case drivers too try to over talk about you know I always say just let the chips fall where they may I’ll take care of it don’t try to to twist your testimony be aware of what they’re asking you
you know the worst thing you can do is have somebody up there who’s trying to act more knowledgeable about a situation or than the plan attorney who’s gonna tear them apart just let it let it be the safety directors candidly are the worst drivers are fine I mean they only they are you’ve got to deal with it but you know they try to come across as a position of authority or power
but you’re right there is no substitute and I will say you mentioned mock trials my gosh I want a mock trial every case I have for a little while to figure out how the juries are going to be impacted by this
because you’re right you know we won’t know this for you know six months a year so that when these are coming up for trial we have been discussing exactly what kind of impact this is going to have on jurors going forward in there but biggest one any trials I have and say let’s say any actually make it to trial in September October probably optimistic given the way things are packed
but people have been out of work for a while and haven’t had jobs and they’re gonna now have to go and spend time in jury duty earning twelve fifty a day versus getting back to work and after their savings have been wiped out or they don’t have any money
I mean are they going to be so distracted and that they’re not really gonna want to be on juries or you’re gonna have people who can be on juries who don’t have that issue and then you don’t have a good cross-section of the community
and I like the people who have who are working and understand the value money and a normal situation you want a good cross-section like that and if all the people who need to go work because they’ve been out of work so long can’t how is that going to impact that so
[11:08] Bill:
yeah a drastic change in the jury pool coming up here and again no one really knows what to do just yet so I think the value I think the mock trial and focus group research has always been really important but now I think it’s probably going to double an importance going forward because until we figure out juror attitudes their belief systems and their experiences from Covid-19 who you would maybe think as a classic defense juror on paper today may not be your classic defense juror three to six months from now
[11:44] John:
you know that’s right because it’s fascinating and some of my friends who will cross the political spectrum it’s odd who has been like in favor of the lockdown and who has not been in favor of the lockdown it’s crossing the normal political lines
so it’s going to be interesting to see how because there are people who I would have thought oh they’re clearly in favor of the lockdown or they’re against it and they’re not and it’s it’s going to be interesting to try and figure out the jurors and their attitudes about hating the lockdown because the lockdown is gonna segue into the reptile theory a lot
I mean safety to me this okay you want safety this is safety as it gets government is stepping in to keep you safe okay this is what safety looks like this is what we really want and I don’t know how people are going to perceive that because you know the Reptile Theory lives on this heightened standard of safety protecting the community okay here you go is this what you want
and how how can we get questions to the jury that elicit the responses to see are they favorable to that and they’ll be more receptive to the reptile type argument
[12:49] Bill:
and that’s our job of courtroom Sciences and we’re already working on that to try to come up with you know you know innovative voir dire questions and juror questionnaires to hopefully tap into to some of these attitudes a final final question before you wrap up I know that you’ve been doing this with your clients and plucking them out of the reptile theory, reptile tactics two questions I guess number one are they getting it finally number one and then number two because of all this safety talk you’re hearing due to the pandemic do you see sort of an uptick in reptile tactics because of the circumstances
[13:27] John:
well I haven’t seen that yet because there’s nothing really going on since it’s locked down I mean court answers aren’t even due so I mean discovery everything iss stopped but yeah I I’ve already been seeing the uptick in reptile over the last few years
it gets more and more and more and then it gets the fight back on various motions where I’m not using reptile I don’t know reptile this is right out of the book here you go quote page 54
but again so I definitely think yes you’re gonna see more of that more and more and why not it’s been pretty effective I mean they’re changing the landscape on how you argue a case as as companies need to get it
I mean that’s one of the things I try to pound home all the time trucking companies in general for the most part have been better about appreciating the fact you need to spend money to defend these cases
and or and you’ve made some really good points lately in some of your articles about the nuclear settlement too and a lot of these companies are killing that numbers I’m going wow because they don’t want to take the chance on moving forward
so it’s it’s an interesting point that you’re bringing up and needs to be emphasized more and I think a good couple presentations that some of the seminars maybe some of the trucking people will listen to but hopefully
[14:48] Bill:
hopefully you and I can do one of those sooner than later even if it’s very
[14:53] John:
I’m so ready to get back on the road let me tell you you know we should have had a couple of seminars by now April is usually a busy seminar mob here I’ve been so I know you’re fortunate in Florida some of your restaurants are at least open
[15:05] Bill:
Yeah we opened up this week so well obviously yeah no well hang in there buddy great talking with you thank you so much for being on the podcast and take care up there in the Tar Heel State
[15:21] John:
I will do that go Wolfpack talk to you later my friend
[15:21] Bill:
Take care buddy bye bye
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