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From the rise in multimillion dollar “nuclear” jury verdicts against motor carriers to federal and state efforts to redraw the industry’s independent contractor business model, these are pressing times for lawyers that represent trucking companies.
Strategies for confronting these and other legal issues facing the industry — including driver compensation for time spent in a sleeper berth as well as a spate of staged accidents with trucks that have made headlines — were addressed by the nearly 230 attorneys, insurance representatives and trucking executives who gathered last month in Washington for a four-day Trucking Legal Forum hosted by American Trucking Associations’ Litigation Center.
Lawsuit abuse was a focus of welcome remarks from ATA President Chris Spear, who said a focus of the event was to expose methods of the plaintiffs’ bar, and develop strategies for how motor carriers and defense lawyers can combat them. For the past 18 months, Spear said, ATA’s federation has notched legislative wins in a number of states where laws have been passed to mitigate lawsuit abuses — and that the fight continues.
In particular, the event focused on what motor carriers and defense attorneys can do to counter the plaintiffs’ bar’s “reptile strategy,” a method that attempts to anger juries to punish truckers with large verdicts in accident lawsuits.
Lawyers who “embrace the reptile theory” will start with very broad inquiries during pretrial depositions that attempt to lay a trap for truckers with questions such as, “You would agree with me that it’s important that drivers generally drive safely?” “Then they will start to narrow down, narrow down and narrow down. Your witnesses if they’re not paying attention can find themselves painted into a corner,” said Mike Bassett, senior partner at the Dallas-based The Bassett Firm, in an interview with Transport Topics. Bassett was one of several presenters to speak with TT about the event.
One critical responsibility for trucking defense attorneys is to prepare truck drivers and safety executives who are questioned in depositions, he said.
“The deposition is where they can do the most damage,” Bassett said. “Because what a ‘reptile’ lawyer wants to do is get deposition testimony in the can and play it in mediation — creating a huge risk — and try to extract the best settlement they can.”
Protecting carriers and drivers from lawsuit abuse is especially vital considering the ongoing driver shortage. To that end, maintaining the industry’s independent contractor model is another top legal issue, and one that was addressed, said Greg Feary, managing partner of the Indianapolis-based law firm of Scopelitis, Garvin, Light, Hanson & Feary, P.C., in a TT interview. Feary and four other Scopelitis attorneys briefed attendees on legal challenges to the independent contractor model, which he noted are in the courts, state legislatures and with federal policies. Of particular concern, he said, are efforts in California and New Jersey, which have passed laws featuring strict “ABC” legal tests aimed at reclassifying independent owner-operators as company employees.
Richard Rahm, a partner at the San Francisco law firm of DLA Piper, said driver compensation for sleeper berth time has also gotten some legal attention as the focus in more than a dozen lawsuits across the nation.
Decisions in the cases have varied on when a driver should be compensated — or not compensated — for sleeper berth time.
“There’s really no certain legal authority on it,” Rahm, also a presenter at the forum, told TT. “So carriers are somewhat left in a lurch because there’s no clear guidance on this issue.”
Rahm said one of the top cases centered on a lawsuit filed by Walmart drivers in February 2020. In that case, a three-judge panel of the 9th U.S. Circuit Court of Appeals denied Walmart a rehearing on a lower court’s judgment to pay a certified class of its California truck drivers more than $54 million in back pay for mostly layovers and rest breaks.
“My most conservative advice would be to try to make it clear they’re not paying drivers more than 8 hours for sleeper berth time,” Rahm said.
“Our program hit a lot of the pressing legal issues our members are dealing with today,” said Jennifer Hall, ATA’s general counsel. “I think the attendees really enjoyed the opportunity to share war stories and collaborate on strategies to fight back against the plaintiffs’ bar.”
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