The Roundabout

CLM’s Transportation Committee gathered together several risk and defense experts in the transportation community to discuss litigation trends in the industry. In this edition, moderator Jim Foster leads a discussion about the hero status of truck drivers, virtual mediations, and resolution strategies in and out of the courtroom.

James Foster: Will the “hero” status of trucking companies and truck drivers during the pandemic—illustrated by their deliveries of essential goods, medicine, and vaccines to protect the public—affect juror perceptions? Would you expect fewer nuclear verdicts in 2021 and 2022?

Sean McDaniel: Unfortunately, I think the trucker will remain an unsung hero. A recent nuclear verdict out of Texas tells me that, although they don’t happen often, one is too many. I think juries will continue to find ways to compensate their fellow plaintiffs even if it’s to the detriment of the trucking companies and their insurers.

Jennifer Crow: I would expect jurors to come in with less inherent biases toward trucking companies than we have seen in the past. I am not entirely convinced that this will lead to fewer nuclear verdicts, however. Even if jurors appreciate the work that trucking companies do, they still do not necessarily want to be driving next to a large truck on the highway. I think that the public has now, for the first time, recognized how essential trucking companies are for our economy and will take a different viewpoint on them going into cases.

John Rygh: In a word, yes. In her pre-game performance during Super Bowl LV in February, Jennifer Hudson paid tribute to our “heroes” while singing “Stand By Me.” Along with the presentation were a series of short clips, including one featuring a trucker clearly sitting in the cab of his tractor who said, “We keep America moving.” It was short, poignant, and spoke volumes on several levels. Not only did the producers see the importance of truckers during the pandemic, but also truckers were described as heroes to the millions who were tuned in to the show. Of course, a lot will come down to the skill of defense counsel during voir dire.

Foster: What has been your experience with Zoom mediations in trucking cases? Has there been difficulty in establishing a rapport with the plaintiff? Has the success rate of settlement at mediation gone up or down? Would you mediate virtually in a case involving a significant burn injury or in a case in which the plaintiff’s attorney has client-control problems?

McDaniel: I have, personally, always been uncomfortable with face-to-face confrontation, so I like the distance put between the camera and the plaintiff. On the downside, I think establishing a rapport is difficult and not always achievable in all cases anyway. With that said, I have not seen the success rate of Zoom mediations go down. I think virtual mediations put more pressure on the mediators, who can often feel helpless when they realize the plaintiff’s attorney has client-control issues. In a serious case such as a burn victim or fatality, the opportunity to establish a rapport can be important, but I would not turn away the opportunity to mediate virtually. If that mediation turns unsuccessful, I would look to a second mediation when it can be done face to face.

Crow: I would not virtually mediate in a case where counsel has client-control problems or perhaps there is a significant dispute as to a catastrophic injury. I have only done two in-person mediations in the last six months, one of which was a trucking case involving hotly disputed catastrophic injury claims and an attorney who did not have great client control. We insisted on doing the mediation in person, as we did not feel a virtual mediation had any chance of being successful. In looking back at how the mediation went (not well), I have no doubt it would have ended in about 15 minutes had we been virtual. I think in some cases, you absolutely need the ability for a mediator to catch an attorney in the hall or outside the conference room and have a candid conversation. I think there can be additional difficulties in establishing rapport with a plaintiff because, unless there is an opening session or you ask the mediator ahead of time to allow the adjuster to “introduce” themselves, the plaintiff may never see you or your adjuster. I think there is a lot of value in a plaintiff understanding that there is a real human being from the insurance company, and you lose some of that in a virtual mediation. I think our ultimate rate of settlement has been the same, but I think some mediations would have gone faster if we had been in person.

Rygh: We have seen a lot of success with virtual mediations, and even saved a lot of time not listening politely to the mediator’s war stories. At this point, I do not think there is much choice but to mediate remotely, but I will encourage it even after things began to open up more. The biggest drawback is not being able to see plaintiffs move around and assess their abilities. Therefore, if there are suspect injuries, any virtual mediation should strategically be done in tandem with a clear surveillance plan.

Foster: If one of your cases was set for a Zoom trial in which voir dire; opening and closing arguments; evidence; and deliberations were all handled virtually, would it affect your decision to try that case? Or would you be more likely to enter into settlement negotiations? What if the plaintiff and corporate witnesses were required to wear masks, making it difficult to assess their credibility on cross-examination? Are there circumstances in which you would “object” to such a virtual trial?

McDaniel: Virtual trials amp up the need for assessing non-verbal cues both during voir dire and in reading a jury during the actual trial. Masks effectively take away any advantage either side might gain by reading the facial expressions of potential jurors or the jury itself. We would have to carefully evaluate the type of case and its exposure to our insured before deciding to take a chance on trying a case in front of a masked jury. With that said, I was able to settle a case before the jury was seated merely by the plaintiff attorney seeing the potential jurors on paper, so, again, it comes down to the type of case and its probable exposure to our insured and/or reinsurer partners.

Crow: Having done a Zoom trial, it really depends on who the plaintiff is. If you have a plaintiff who is a very sympathetic person, I would be more likely to want to try it on Zoom. It is harder for a jury to really bond with a plaintiff over Zoom, in my experience. I would have more concern with a case that includes very complex medical treatment or injuries for a plaintiff, or there is a brain injury that you want the jury to evaluate how the plaintiff presents in terms of cognition.

I think it can be harder with very technical subject matter to do things via Zoom. We would still prefer to be in person, as we believe it lets us connect better with a jury. I would not want to be in a situation in which all my witnesses were required to wear masks, because I think you definitely lose the ability to assess credibility. Saying all of that, I think Zoom voir dire is here to stay. I just had lunch with a King County (Seattle) judge yesterday, who absolutely believes the same. Jurors love it, and it makes the court’s job easier to have people participate from home.

Rygh: I was a litigator for 24 years before becoming a corporate guy 10 years ago, so the old trial lawyer in me would shy away from a virtual trial. If it’s virtual, then I don’t think there would be an order to wear masks, but if so, it could clearly hide deceit and possibly even honesty. We have not been involved in a virtual trial; at this point, I would like to avoid it. That said, I have never been involved in a case, either as a litigator or as general counsel, where I would not enter into settlement negotiations at the appropriate time.

Foster: How has the pandemic, social unrest, and severe economic conditions affected the tactical decisions you make on your trucking cases, including attempts to settle cases pre-suit or early on in litigation, as well as your defense tactics and resolution strategies?

McDaniel: These factors bring a whole other level of consideration when trying to resolve a claim. You really need to look introspectively at the venue and try to assess how those conditions may have affected or are currently affecting the jury pool. Is the venue now politically sensitive given the recent presidential outcome? Have the past known conservative or liberal proclivities of a venue been affected by the pandemic and resulting economic conditions? The importance of resolving a claim sooner than later may now be heightened in the same vein as nuclear-verdict avoidance.

Crow: I think, especially at the beginning of the pandemic, there were a lot of attempts to settle cases early on as there was so much uncertainty. Now I am almost seeing the opposite. It seems like a lot of plaintiffs are willing to wait, almost as if they see a light at the end of the tunnel. I think you can make some headway in terms of typical plaintiff arguments about big trucks and juries not liking truckers. Some of those reptile techniques are a bit less effective when you have a better public perception of trucking companies.

Rygh: We approach every case strategically. What does the admissible evidence look like, and how will the witnesses for both parties present? These considerations are on steroids after all the unrest and political maneuvering that has unfolded since the pandemic broke out last year. One need look no further than social media to get a fairly accurate picture of the jury pool in any given venue. Insurance carriers must always be weighing the risk of trial under a given fact pattern and how it would fit within the comparative-negligence laws of the jurisdiction. The practice of law can be very regional so, as a national carrier, we rely heavily on our defense firms. The insights of an experienced defense attorney, particularly one who is familiar with the plaintiff’s counsel, is a key factor in determining whether the totality of the circumstances dictate the case should be resolved or proceed to trial. 

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. He is also on the faculty and executive council of CLM Claims College’s School of Transportation.

Sean McDaniel has been in the risk-management arena with a focus on claims for over 30 years. He is currently a group captive claim consultant with Alternative Risk Underwriting (ARU).

Jennifer Crow is a partner with Scheer Law PLLC, and practices in Oregon, Washington, Idaho, and Montana. She handles a variety of transportation matters, including bodily injury claims, property damage claims, and coverage-related issues. She is a member of her firm’s emergency response team and her team assists transportation clients from initial investigations through trial.

John Rygh has 35 years of experience as a California attorney and general counsel at the Knight Insurance Group. As a partner in an insurance defense firm, Rygh represented insureds and insurance companies for the first 24 years of his career. As Knight Insurance’s general counsel, he oversees all litigation, claims, regulatory compliance, and corporate matters.