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For more than a year, prominent San Diego defense attorney Robert Tyson has been scolding his colleagues for not sharing trial defense strategies to beat plaintiff attorneys in the nation’s courtrooms.
The plaintiff bar does share strategies, he notes, and in recent years they have won billions of dollars in trucking accident cases.
Tyson, the lead partner in the 200-attorney national firm of Tyson & Mendes LLP, said trucking trial lawyers tend not to share their strategies because they regard each other as competitors. His perspectives on the ongoing challenge trucking attorneys face in matching wits with plaintiff lawyers offer a lesson for truckers and those who defend them in accident litigation.
Tyson, who last year published a book, “Nuclear Verdicts: Defending Justice for All,” does not discount the efforts of those who seek tort reform, fight plaintiff litigation funding, attempt to ban inflated medical bills or seek to banish cartoonish plaintiff attorney billboard ads dotting U.S. highways.
He concedes that improving the system is an ambitious goal, but worries that persuading legislatures in 50 states to change unfair aspects of the judicial system is a proposition that can take years.
Meantime, it has become clear that these are decidedly perilous times for defense attorneys. In recent years, many have fallen prey to angry juries assessing multimillion-dollar verdicts against motor carrier clients in accident litigation. The rise in “nuclear” jury verdicts — those more than $10 million — has been growing at a disturbing rate.
Tyson says the root cause of nuclear jury verdicts is not a broken judicial system, but rather the failure of defense attorneys to adapt to plaintiff tactics.
“Plaintiff lawyers have changed the way they try lawsuits — and the defense has not,” he said. “We need to change the way we try cases. We’re a slow moving industry, the defense industry in general, including the trucking industry. It’s amazing that so many people are focused on the causes of the problem and not having moved on to the solutions.”
Trucking defense attorney Doug Marcello, who used comments from Tyson in a recent American Trucking Associations virtual seminar on nuclear verdicts, calls Tyson “a great voice for the defense.”
“The book is exceptional in terms of the information provided and the perspective of the various tactics and strategies that can be used to defend cases,” said Marcello, an attorney with Carlisle, Pa.-based Marcello & Kivisto LLC.
Plaintiff lawyers have changed the way they try lawsuits — and the defense has not. We need to change the way we try cases.
Defense attorney Robert Tyson
At press time, Tyson’s book was No. 9 on the Amazon top 50 selling books in the “Juries” category. The book has been popular not only with lawyers, but also with insurance companies. Ironically, Tyson said his law firm partners didn’t want him to write the book due to concerns about tipping off the plaintiffs’ bar.
Tyson retorts that plaintiff attorneys already know of the anecdotes to their tactics, and have been preparing to counter new defense attorney strategies.
Traditionally, plaintiff lawyers have attempted to make their cases using sympathy for their clients, Tyson said. That has changed.
“Now the emotion plaintiff lawyers are focusing on is anger,” he said. “They’re trying to get the jury angry at us and the trucking companies. Juries don’t give $10 million, $50 million, $100 million out of sympathy. They give it out of anger. They’ve been moved to anger.”
He said the tactics he has been advocating for defense attorneys are no secret. For example, he wonders why plaintiff attorneys are so much more connected with each other than defense counsel.
“They watch each other in trial. They help each other. They share information,” he said. “They know more about me and my firm than I can ever imagine. And it is all very effective for them.”
It’s different for the defense.
“Each defense firm, and often each defense lawyer, is his own separate island,” Tyson said. “We are left to learn on our own. To learn in the trenches against the best plaintiff lawyers in the country.”
Tyson in his book touts ways defense lawyers can meet the plaintiff bar head on.
“There are at least 10 things defense attorneys must do to avoid exposing their clients to excessive damage awards,” Tyson writes in the introduction to his book. “If you research large jury verdicts, you will find defense counsel almost always failed to do at least one, if not all, of these 10 things.”
Defense attorneys also must educate company drivers and safety executives who take the witness stand and must learn how to recognize and counter some plaintiff attorney setups and traps, he said. Defense trucking attorneys also must be less “defensive” and “more human” in front of juries.
Plaintiff attorneys commonly use a tactic known as the “reptile theory,” a method that attempts to incite fear and anger in trial juries. The tactic has been highly successful, and its use is no secret to defense attorneys who represent motor carriers in trucking accident litigation.
One of the more important aspects of the reptile theory is for a plaintiff attorney to set a trap for a truck driver or carrier safety executive by getting them to attest when testifying or in a deposition to a carrier’s universal safety rule — and then corner the witness into affirming that the company violated the safety rule, according to Tyson.
“A defendant who has agreed to a safety rule and admitted he or she violated it will often have admitted liability,” the book says.
Plaintiff attorneys will likely pose such questions to the driver or safety official as:
• Safety is a top priority of your company, right?
• You have an obligation to ensure safety, right?
• You have a duty to put safety first, correct?
• You would agree with me?
• Would it be a good idea if...?
The book suggests a company driver or official can counter such open-ended questions with such answers as:
• Safety is certainly an important goal, yes.
• We strive for safety.
• It depends on the circumstances.
• Safety in what regard? Can you be more specific?
Tyson cringes when he hears a trucking company say “Safety is our top No. 1 priority.”
“Is safety a core value of mine?” he asked rhetorically. “Safety is important, yes. The problem with this is the plaintiff bar for the last 10 years has spent an inordinate amount of time trying to trick truck drivers and trucking company owners, risk managers and general counsels. Once you say that, it holds you to an unrealistic standard of care.”
He said a defense attorney has a strong duty to personalize his clients to a jury.
Below is a partial excerpt from one of Tyson’s closing arguments in a 2016 California accident injury case. Before trial, the carrier had offered $1.8 million to settle, but the plaintiff attorney sought a $7 million award before Tyson & Mendes’ trial team was parachuted in for the trial:
On May 25, five people pleaded guilty to staging two accidents in New Orleans with tractor-trailers in 2017, while obtaining fraudulent financial settlements totaling more than $282,000. Is the situation surrounding fraudulent settlements getting worse or better in 2021? Host Michael Freeze talks with TT's Eric Miller and Eleanor Lamb. Hear a snippet above, and get the full program by going to RoadSigns.TTNews.com.
His partial closing argument: “It’s easy to file lawsuits in California. It’s very difficult to defend one. I mean, it’s difficult to put your reputation on the line, in the hands of 12 strangers and say, hold me accountable. But that’s what my clients are doing. They are here every day. They accept responsibility, and they’re saying, hold me accountable. That’s why we’re here. And that’s what we’re here to talk about.
"This was a soft-tissue injury case. We made a mistake. We’re sorry.
"But who else has some responsibility in this case? Ms. Harris [the plaintiff]. Let’s talk about Ms. Harris a little bit. There’s two parts to responsibility. It’s really two words, responsibility, acceptance, accepting responsibility, saying it. And there’s also accountability.”
After closing argument in the five-week trial, the jury awarded the plaintiff $355,000 for brain damage and multiple neck surgeries.
Tyson’s last thoughts to defense attorneys are to “keep it real.”
“Share with the jury your truth, in most cases that you and your client care,” he said. “You care about a plaintiff who lost her job, or lost a loved one, or whatever the loss. Regardless of what your defenses are, show the jury that you care.”
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