What Are Plaintiff’s Lawyers Saying About The Transportation Industry?: Part II

The Claim

On February 14, 2014, Garrett Oleson with HNI Truck Group shared a great article on what plaintiff’s lawyers are teaching on “broker busting”. The article pointed out that the plaintiff’s bar is capitalizing on the uncertainty surrounding CSA to hold broker’s liable for trucking accidents arranged by a broker.  The article was written by a Tennessee firm and is called “Broker Busting B.A.S.I.C.s”. The article is divided into 5 categories teaching the following:

1. Acquainting plaintiff’s lawyers with the freight world;
2. Looking beyond the safety rating of a carrier to see what data was actually available for a broker to consider;
3. Identifying the broker’s methods of selecting a carrier;
4. Formulating a plaintiff’s strategy; and
5. Countering defense arguments.

The Tennessee firm claims that its objective is to make “our highways safer by taking ‘trucking cases’ beyond the driver and motor carrier to the negligent brokers who hire them.”  Call me cynical, but I’d say the objective is to find more deep pockets!  The firm states that brokers should use BASIC scores when selecting a carrier since the data is reliable and current, in contrast to safety ratings that become obsolete and out-dated almost instantly.

Finally, the Tennessee firm’s article suggests that the most promising claim to be lodged against a broker is that of negligent hiring of a carrier (failure to adequately consider CSA scores before hiring a carrier). A second, but tougher claim, is to show that the carrier was actually controlled by the broker, thereby creating an employer-employee relationship.

The Evidence

• As most of us know by now, the Government Accountability Office recently released its audit of CSA finding that flaws in the CSA data make it difficult to reliably assess the safety risk of most carriers due to the lack of enough safety data. Although the Tennessee firm’s tutorial came out before the GAO audit, I don’t think it’s a stretch to say that it wouldn’t change their teachings a bit.

The Arguments

So how do we fight this:

• Be aware of the law regarding broker liability.  The case of Schramm v. Foster opened the door for using safety scores and data to establish broker liability for negligent hiring of a carrier.  It lays the groundwork for establishing a negligence claim for a broker.
• Most state and federal evidence rules allow the admission of official government documents into evidence.  You can fight the suggestion that CSA data is accurate and should be used by brokers by seeking to introduce the GAO report showing CSA flaws.  In conjunction with this, it is important to point out the almost non-existence of any other report or study supporting the accuracy of CSA data.  The FMCSA’s response to the GAO study couldn’t even rally peer support for its argument that CSA predicts the safety of a carrier.
• Take plaintiffs to task by showing a lack of support of any proximate cause between the broker’s selection of a carrier and the carrier’s role in an accident. A plaintiff may very well find some “expert” who will try and link these up.  And that is when an all out attack on the expert should ensue, particularly filing motions to strike for the lack of peer-reviewed literature supporting the efficacy of CSA scores.
• Separate broker and carrier operations that are under the same roof.  I hear there is some confusion as to whether a motor carrier has to have separate brokerage authority to broker loads.  After my reading of the MAP-21 law and the guidance that was issued in September of 2013, I believe that the law without a doubt requires motor carriers who broker loads to have separate MC authority than the carrier MC authority.  Regardless of what you think the law is, without separate brokerage authority, a carrier opens itself up for vicarious liability claims and negligent hiring claims, without any protections associated with brokering.  With separate brokerage authority, a carrier avails itself of limited exposure for having well defined carrier selection procedures.  Without the authority, a carrier may be held vicariously liable as a principal of the chosen carrier, regardless of how the brokering carrier views itself.

I hope the past two weeks of blog posts have been helpful on educating you about what is being said and written about how to fight this industry.  So keep fighting’ the “lawyer talk”.

What Are Plaintiff’s Lawyers Saying About The Transportation Industry?: Part I

First and foremost, my apologies for not posting the past two weeks.  You may not have even noticed; however, it matters to me.  One thing  I believe has made my blog successful, and blogs in general, is regularly posting fresh material for people to read, chew on and use if at all beneficial.  When I set out to write this blog almost a year ago, I vowed to post once a week.  By and large, I have stuck to that, at most only skipping a week here and there.  I value my followers and the ones that take time out of their busy schedule to read what I have to write.  And I will do my best to keep new material coming regularly.  Unfortunately, work has called the past three weeks, which I am very grateful for, and I just haven’t had the time to sit down and write something worthwhile until now.  So bear with me should I ever skip a week or two again, which I’m sure will happen.

This is the first of a two-part post that I’m pretty fired up about:  What is the plaintiff’s bar teaching on how to attack our industry. 

The Plaintiff’s bar is one of the most well organized groups that I have come across in the legal world.  I would know…I was part of it for a very short time when I tried my hand at small-town practice in my hometown of Hazlehurst.  When you do small-town practice, plaintiff’s practice is inevitably a big part of that.  I was on the defense side for seven years, plaintiff’s for a year and half, and now back on the defense side.  Guess I finally saw the light to come back to the side of justice!  There is no doubt in my mind that I am where I am suppose to be and that defense work fits my personality and skill set much better.  And by being on the “dark side” (a joke for my plaintiff’s lawyer friends) for a short time, I believe it has made me a better defense attorney because of it.

So Why is the Plaintiff’s Bar so Well Organized and Efficient?

I don’t know the why as much as I do the how.  The plaintiff’s bar seems to work together better.  Maybe it’s a realization that there are enough potential plaintiffs out there that they don’t have to fight, hoard and protect to get potential clients.  And if that is correct, that lends itself to the plaintiff’s bar sharing more information on how to be successful in cases, which is a win/win for them.  When they publish articles and host conferences, it’s not just academic…it’s a ground level offense on how to get out there and attack defendants in order to win cases.  Call it a how-to course.

But Doesn’t the Defense Bar Do the Same Thing?

I am a member and chairperson within several legal trucking defense and transportation industry organizations.  And do not get me wrong!…these are great organizations that provide invaluable resources.  I am thankful to be a part of them and that is why I choose to be active within them.  But I’ll be blunt and call a spade a spade…defense bar attorneys are fragmented and sometimes isolationist.  In a sense, we can be pre-World War I America.  We provide great academic resources for our members, but by and large, we are lacking on the how-to courses in defending these transportation cases.  I don’t know exactly why that is, but I suspect that it’s a mentality; we are afraid that if we give away our secrets of how to effectively defend transportation cases and help other defense lawyers, they may do it better than us and get our clients.  Just my opinion at least

Let me be clear about one thing…I have never set out to make my blog a “defense oriented” blog or beat my “defense war drum”. I set out to write about issues in the trucking industry, whether it’s calling the industry out on things that need to change, praising it for all the great things it is, or providing information to help the industry flourish. I strive to make a great industry even better. But as a lawyer who defends trucking companies and truck drivers, I will undoubtedly have a natural bias towards them!  And when I read articles from the plaintiff’s bar attacking my industry, by God I’m gonna get redneck on ‘em.

Plaintiff’s Battle Cry

I have no idea why I received it because I am not a member and the plaintiff’s bar is not forthcoming with sharing their material with non-plaintiff’s attorneys.  But for whatever reason, I received a recent volume of The Trial Lawyer magazine, “a magazine for trial lawyers & a voice for justice”.  Within that magazine, there was a how-to article called “The Unholy Trinity: Talking, Texting and Trucking-the Epedimic, the Law and How To Win Your Case” (see why I say they are good on the how-to??; Click the link to read the whole article if you like).

Essentially, the article is a red-herring.  It starts off by quoting statistics on the dangers of texting and driving, such as a person is 23 more times likely to have an accident while texting; 160,000 accidents per year are caused by texting, and people are six times more likely to have an accident while texting than while intoxicated.  And that is all true, which I have written about on this blog before (It’s Right Here In The Cell Phone Policy…So What Do You Think About That?).

However, the plaintiff’s bar and the article take it too far when they make the statement that “Certainly, professional motor vehicle operators who drive semi-tractors and trailers know that.  And yet…the epidemic still continues.”  In a single stroke of the pen, they have rallied the troops and now our industry is to blame for all texting while driving accidents.

And it doesn’t stop there either.  The article describes a truck driver who texts as being in command of an unguided “death missile”.  Citing the regs prohibiting texting while driving in commercial trucks, the article teaches how to use the regs to put liability on the driver AND the carrier.  They call it “the existence of an unsafe or nonexistent safety environment within the trucking company”.

So What Can You Do?

• The most important thing you can do is know what they are saying and how they will come at you when a suit is filed.  As I’ve said before; Knowledge is power.  As soon as an accident occurs, whether you hire a lawyer at the outset or not, know how you are likely to be attacked if a claim is filed and begin gathering the necessary information to fight it off early and often.  The best defense is a good offense (something Chip Kelly would probably agree with).
• Chances are highly more likely that the plaintiff may have been texting or using a cell phone than the truck driver.  Subpoena the cell phone records of the plaintiff and find out.  Worse case scenario, you find nothing.  I have made it a routine practice, even when texting or talking on a cell phone is not even suspected, to request all cell phone numbers of a plaintiff in use at the time of the accident and subpoena cell phone records for the date of the accident.
• Use this same statistical information against plaintiffs.  It is ESSENTIAL to be able to educate the jury on the true statistics and help them understand.
• Even more importantly, a jury needs to be educated on the lengths that the trucking industry goes to in order to prevent accidents.  They need to know how much safer this industry and its driver are than the Average Joe that is probably suing them.
• You’re gonna have safety policies.  And you should.  The plaintiff’s bar is also going to use those same polices and the FMCSA regs to establish a safety floor, and then seek to show you fell below that floor, thereby endangering the  entire public at large.  To hedge your bets, juries want to see that not only do you have safety policies, but you ACTIVELY train on them and enforce them.  Juries realize that drivers are going to violate policies.  Even the Pharisees couldn’t follow all the laws!  But if a jury sees that a company fought hard for safety and stayed on top of it, you will be better off and they won’t seek to destroy you for the drivers that fall through the cracks.

I hope this insight to what is being taught about you from the other side is helpful.  Next week, we will take a look at how the plaintiff’s bar is attacking brokers in the transportation industry.