CLM’s Transportation Committee convened another gathering of experts in the transportation community to discuss matters that affect the industry. In this edition, moderator James Foster asks two claims professionals—one from the carrier side; the other corporate—and an insurance defense attorney to discuss not only how driver preparation can directly lead to a successful outcome, but also how it can prevent an aggravated jury award.
JAMES FOSTER: There have been several multi-million-dollar verdicts against trucking companies recently, despite arguments from the defense that the plaintiffs were the sole proximate cause of the accidents. How can the drivers be prepared to sustain a reptile theory attack in deposition in order to defend the company?
ANDREW JACKSON: The majority of truck drivers are unfamiliar with the litigation process; most have likely never been deposed. One very effective preparation technique is a mock deposition. We can go over numerous hypotheticals and reptilian-style questions. This really helps expose drivers to what they may experience in an actual deposition, with some saying the real deposition wasn’t nearly as difficult as the mock.
CHRISTY COMSTOCK: In my experience, you must invest a significant amount of time with your drivers, first forging a relationship of trust so that you can prepare them for the exhausting psychological exercise that now comprises reptile depositions. You must understand deposing counsel and their style by familiarizing yourself with their prior depositions, and then educate your driver over a series of preparatory sessions about how to handle themselves in light of the questions they can expect. There is no substitute for preparation, and reptile depositions require significant and often grueling sessions with the driver that cannot be skipped or shortcut.
CAROLE RIDGEWAY: Explain to the driver that it is human nature to judge someone’s credibility by appearance and posture. Credibility is the name of the game. Explain that we want to help them “polish up” so that the jury will better receive their testimony and believe it. Show them that certain things look better than others. Grooming and appropriate attire matters. Don’t be misunderstood by crossed arms or a slouch. Sit up straight, lean forward, avoid squirming, chin up, calm hands touching and resting on the table are all outward signs of someone who is more believable. Stay calm, don’t mumble, and avoid indecisiveness. Answer the question and only the question, and keep it brief. It’s okay to say you don’t know the answer or don’t understand the question.
Once you have all of that looking good, teach the drivers the reptile tricks and how to respond. There are a lot, and they need to be reviewed carefully. For example, when the “Wouldn’t you agree that truck drivers should be safe on the road?” questions come, the driver will be prepared to respond not with just a “Yes,” or a “No,” but with a statement like “I believe all drivers should be safe on the road.” Practice. Practice. Practice. Don’t just run through one time the day before deposition. Practice on video and let the driver see how they come across on camera. Applying these preparations can help drivers sustain a reptile theory attack in deposition.
I also think it very important to humanize the driver. Find a way to inject his personal story of being a husband who loves his wife, a proud father of four children, a 12-year veteran of the U.S. Air Force, or an experienced driver with multiple safety awards. Find those things that will soften a harsh view of the driver and hopefully make his testimony more credible.
FOSTER: In an emergency response to a catastrophic accident, is it important to meet with the driver immediately? Does it prevent inconsistent statements being made between the driver’s report of the accident and statements made to the investigating officers and deposition testimony in the future?
JACKSON: Our company strongly believes in having emergency responders throughout the country for catastrophic accidents. They provide support and guidance to a driver, mainly helping to gather the facts of what took place. This not only helps with providing consistent statements to the officers and in potential depositions, but also it helps drivers understand that they have a support system available.
COMSTOCK: Yes. You need to be face-to-face with the driver and understand how they perceived the events, and what they reported in 911 calls and to law enforcement, tow truck operators, and safety and claims managers. You can be a better lawyer if you know your driver, and meeting your driver and understanding all of these early communications is critical to the deposition and the trial testimony that may be required.
RIDGEWAY: It is incredibly important for the driver to meet with emergency responders. Statements are protected. It most definitely can keep statements from being contradictory in deposition. Also, any statements made to investigating officers can be cleared up or explained in deposition. Emergency response also gives the driver a sense of immediate aid and protection versus feeling like they are out on their own, which, in turn, should bode well for drivers’ cooperation down the line.
FOSTER: Since distracted driving claims have increased in frequency recently, and are often based on cellphone and social media use, how have you both prevented and defended these types of claims? Have you been able to use distracted driving arguments affirmatively against claimants?
JACKSON: Cellphone records are always a good place to start. If the vehicle contains a black box, then we can also see if the cellphone records can be synced up to the box to show what was occurring at the time of the accident. If we are defending a case in which it appears that our driver was distracted, then the strategy of simply admitting liability is discussed. If we believe there is a strong case that a claimant was distracted, we also use the same tactics to find out the facts.
COMSTOCK: As a lawyer, understanding the distractions in the plaintiff’s vehicle is the bedrock for any rules-of-the-road violations, such as failure to keep a lookout and maintain control. You may assert as an affirmative defense or a negligence-based counterclaim. We now have established protocols in our office for immediately obtaining social media posts and for downloading phones that we are able to acquire and access. As for truck drivers, not all cellphone usage favors the plaintiffs in all cases. Recently, we were successful in obtaining a defense verdict even when it was shown that the truck driver was speaking on the phone using his Bluetooth headset at the time of the crash, illustrating that termination of the call at a critical moment would have required the driver to remove a hand from the wheel. In another case, we were able to show from a cellphone download that a decedent driver was taking photos with his phone when he rear-ended our motor carrier client. Distracted driving is an epidemic that jurors will not easily overlook, so you must turn over every stone to understand the distraction and how it affects your defense and the case value.
RIDGEWAY: What I would consider the most effective prevention is getting drivers to value their safety along with the safety of others. Let it be their own personal rule in addition to company policy to not be distracted while driving. That school of thought encompasses all forms of distracted driving, be it a device, reaching for something, or anything that does not include “eyes front.” Discovery of cellphone records is about as far as I have gone in arguing distracted driving against a claimant. The situation has not presented itself otherwise.
FOSTER: Ultimately, the driver will be deposed in a case. What techniques have you found effective when preparing drivers for depositions? Does the preparation include a significant amount of time spent on the applicable federal regulations?
JACKSON: Every driver is a little different. We will employ whatever technique fits an individual driver. Whether it be mock depositions, multiple meetings to prepare them, or simply staying in contact and updating them on the status of a case. Federal regulation review is always an important part of the preparation process.
COMSTOCK: You must know the driver’s history and address any facts or circumstances that are negative or may be perceived as negative or unfavorable. You must know the motor carrier’s handbook and the applicable state and federal regulations that are material to the crash, and then prepare with the driver using the handbook, the CDL manual for the state where the driver obtained their CDLs, and those state and federal regulations. The plaintiff’s counsel typically is going to use these materials extensively during depositions, and the driver must be prepared for meaningful questions about their driving history, their training, and their supervision by the motor carrier in addition to the actual accident. Most drivers understand the regulations that affect driving, but they need help articulating what they know. Once again, preparation pays dividends; a good driver deposition equals a good driver for evaluation and settlement purposes. We often have four-to-six prepation sessions and meals together with a driver before a deposition.
FOSTER: Do you constantly keep in touch with the driver during the course of the litigation, which could last years? If so, is it beneficial to the successful outcome of the case?
JACKSON: It is very important to stay in contact with a driver throughout the litigation process. For one thing, it reminds them that they are an important part of the team. Also, constant contact keeps them fresh and up-to-date with the progress of the case.
COMSTOCK: It is critical. Make calendar or diary entries so the driver does not drop off your radar. Make sure your staff knows the driver’s name and can form a personal response to the driver if they call. Learn about the driver’s family and ask questions when you speak about their family, interests or health. Make it personal. Treat the driver like you would want your lawyer to treat you. If the driver is on your team, then your chances of a successful outcome increase.
RIDGEWAY: It is important to get a driver’s cooperation and buy-in to agree to be available. Sometimes just asking them for that directly and getting that affirmative response on the front-end works well. Follow with statements of appreciation when they do cooperate and stay in touch. Technology today makes staying in touch so much easier. Text works until a phone number is changed. Email is pretty good. Writing letters doesn’t seem to work that well because they are not home that often and responding with a call is usually during the weekend or after business hours. Some drivers want to talk every month. Others don’t want to be bothered until they have to do something. By the same token that cases get “worse” over time, staying in touch with a driver gets “worse” over time, too. Most are good for a year or two, but after that, they tend to move on.
FOSTER: How does your assessment of the credibility of a driver affect your analysis of both the settlement value and verdict value of a case?
JACKSON: I would love to say credibility of a driver does not have any bearing on settlement value or verdict value, but that simply is not true. Sometimes there are things that are brought to light about a driver that would not play well to a jury. Whether it be driver log inconsistencies, safety issues, or even an issue of believability, you have to take that into account since any of these can cause a credibility issue and will likely increase the value of the case.
COMSTOCK: Credibility is always one of the most important assessments that a lawyer will make of a witness. Drivers who are credible may get the benefit of the doubt on close calls or where there is room for interpretation. Time and distance questions are always going to be asked in a deposition, so effort must be spent evaluating how to be responsive to questions calling upon distance events and reconstructed memories.
RIDGEWAY: If I have concerns about the driver credibility, then it almost immediately affects the assessment of the defensibility of the case. If the issue is bad enough, I may even push to pay more for a settlement. That is not to say that I always think a driver is being untruthful. I have seen a driver very adamantly believe his own version of what happened, even though the scientific evidence made his version impossible. Even after spending a good amount of time going over and explaining the science, the driver still maintained what he believed to be the truth. A driver may have perfectly acceptable testimony about his pre-trip or his time/distance estimation, but if he has a crabapple personality about it, then the message is lost in the delivery. I believe it is fair to say that any time the driver’s credibility goes down, the value of the case goes up.
Meet the Panel
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee.
Andrew Jackson is a claims examiner II in the litigation department for National Indemnity and the Berkshire Hathaway Companies. He has over 17 years of experience with transportation claims.
Christy Comstock is a partner at Wales Comstock and has more than 25 years of legal experience, focusing her practice on the defense of motor carriers.
Carole Ridgeway has 20 years of experience as a senior claims manager with Maverick Transportation LLC in Little Rock, Arkansas.