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Legal experts and researchers say juries generally carry negative attitudes about corporate America — and the trucking industry specifically — into the courtroom, making motor carriers susceptible to strategies that plaintiff attorneys employ to steer jurors toward sky-high “nuclear” judgments against fleets.
Fortunately, there also are strategies trucking defense attorneys can use to soften these negative attitudes, and deflect the plaintiff attorneys’ strategy known as the “reptile theory,” which is intended to make jurors angry at trucking companies.
“Reptile mania has swept the litigation landscape,” said Rachel York Colangelo, managing director of jury consulting for Magna Legal Services. “We hear this from jurors in almost every type of case and venue around the country.” Colangelo spoke during a recent webinar on jury attitudes.
The findings of jury studies and interviews indicate defense attorneys do face a challenge, as some jurors concede to having a built-in bias against truckers. Some may have had a personal brush with a tractor-trailer driver, while others may believe they should harshly punish motor carriers that they believe are unsafe with large monetary awards. But defense attorneys don’t always have the time to drill down the attitudes of a pool of 30 or 40 potential jurors for a trial, when only 12 will be seated in a jury box.
The reptile theory dictates that plaintiff attorneys go beyond the accident, and delve deeply into a carrier’s safety policies and procedures to convince jurors to send a message to the entire industry with multimillion-dollar verdicts.
Steve Wood, a litigation consultant with Courtroom Sciences Inc., said his firm detected a slight upward blip in positive jury attitudes toward truck drivers and trucking companies during the peak of the COVID-19 pandemic, but worries that some of those gains are waning.
“I can tell you from talking to jurors and working cases that involve trucking companies — seeing how jurors respond to trucking companies and truck drivers — the perception tends to now be more negative,” Wood told Transport Topics.
Colangelo said her firm’s research shows that defense attorneys must acknowledge negative attitudes that she described as “the elephants in the room.” When selecting jurors to be seated at a trial and during opening arguments, attorneys should acknowledge they are representing a corporation whose conduct will be called into question, but ask jurors to make a commitment to fairly judge their client based on the evidence, not courtroom tactics, Colangelo said.
Here are some of the results of recent prospective jury surveys conducted by Magna Legal:
- 84% of those surveyed agreed with the following statement: “In today’s world, juries need to be guardians of the community by forcing companies to change their bad behavior with large damage awards.”
- 75% of those surveyed said they believe that tractor-trailers are generally dangerous.
- 33% said they believe tractor-trailer drivers are generally reckless.
- 38% said they agreed that a billion-dollar jury accident damage award can be “about right,” or even “too low.”
In general, juries have high expectations for trucking companies’ and drivers’ conduct and ability to avoid accidents, Colangelo said. “We hear things from jurors such as, ‘This driver is essentially barreling down the road with an 80,000-pound weapon,’ and ‘When you are driving a big truck, you have more responsibility because your truck is a weapon.’ ”
One juror participating in a mock trial suggested that growth in e-commerce will put more truckers on the road, and lift the need for oversight. “I think there needs to be greater regulations, especially if they plan to share the road with Class C drivers,” the juror said.
Fortunately, that same Magna survey found evidence that the COVID-19 pandemic resulted in at least a temporary “halo effect” on jury attitudes toward the industry due to truck drivers delivering essential services to consumers in tough times. On one survey question, 23% said they believe truckers’ images have improved during the pandemic, and 62% gave trucking company services a better rating than banks, hospitals, doctors’ offices, pharmacies and grocery stores.
Amid all of this research, the process of seating a jury remains a key element, noted trucking defense attorney Ted Perryman of the St. Louis law firm of Roberts Perryman PC.
“One of the big misconceptions is we always talk about jury selection. But what we really do is deselect jurors,” Perryman told TT. “People think we sit down and pick 12 jurors, but it really doesn’t work that way.”
In most jurisdictions attorneys usually get 3-5 “peremptory strikes” to eliminate potential jurors during the narrowing down of a pool of about 30. “That still leaves 12 potential jurors that you can’t deselect.”
“You are given information about their education, their job history and some basic demographics,” he said. “But, unfortunately, you rely on stereotypes. From the defense side we’re skeptical of certain millennial jurors. We’re worried about how they’re going to see trucking and safety and what our obligation is.”
Which is why defense attorneys need to plant their theory of the case early on, by personalizing the driver and their employer, Perryman said.
“One of the things we’ve not done a good job of over the last several years is to explain how important the truck driver is, and how difficult of a job he or she has hauling freight,” Perryman said. “We also need to emphasize the trucking company and how much time and effort the motor carrier spends on safety. You’ve got to start that narrative very early.”
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In his book, “Nuclear Verdicts: Defending Justice for All,” California trucking defense attorney Robert Tyson said that one of the best ways to neutralize bias is to simply attempt to get the jury to like you. He maintains jury selection is an art, not a science.
“You will often not have enough time to ask questions of every potential juror, let alone get to know each of them to determine if they fit into your ideal juror mode,” Tyson wrote.
In general, Tyson said plaintiff attorneys want emotionally driven jurors. “They want artists, caregivers, teachers, writers, creative people. People who have been wronged themselves, and others whom they feel they can manipulate into believing the defense is pure evil,” he wrote. “We defense attorneys want analytical, linear-thinking folks who manage people and take responsibility for their actions. These are often engineers, accountants, small business owners, law enforcement and those in managerial positions.”
Colangelo added that defense attorneys must also remember to always be on their best behavior, as they’re being closely watched by members of the jury.
“Respect for the court is important. Respond respectfully to the judge and to opposing counsel and avoid being sarcastic or taking cheap shots with your questions,” said a blog post by DecisionQuest, a nationwide legal jury and trial consulting firm. “Be respectful of jurors’ time as well as of their privacy. Respecting what may be limited privacy in this situation can be done by reminding jurors that they can ask for a private opportunity with the judge if a question is too personal or involves issues like a health concern. Another sign of respect is to make eye contact while a juror is answering a question and respecting the information they share.”
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