Published in TIDA Newsletter – 2024, Quarter 2
By Mehdi Arradizadeh Vice President of Safety & Risk Management, Anderson Trucking Service, Inc. and Yaron Shaham, Partner, Kahana & Feld LLP
Try as you might to dispose of a potential high monetary damage and litigious matter via a Motion for Summary Judgment or attempting to convince opposing counsel to resolve the matter via a negotiated or mediated settlement, you have come to the realization that this matter will proceed to a jury trial, and you now must prepare accordingly. At a minimum, selecting experts, prepping witnesses, reviewing depositions, and gathering documents, the trucking industry (including its attorneys and insurers) must be cognizant that even though justice is blind, humanity rarely conducts itself with covered eyes so consider how geography, politics, culture, and race can affect a jury trial.
What are the Negligence Laws?
Before jumping into these difficult topics, it is critical to know and understand the three types of negligence laws because the ultimate outcome, and the percentage of liability attributed to the Trucking Industry (if any), should affect how you view a matter.
First, there is Contributory Negligence. In states, such as North Carolina and Virginia, which follow this rule a plaintiff is completely barred from recovery if they are found even slightly at fault, even just 1%. Second, there is Pure Comparative Negligence (see California, formerly Florida, New York) where a plaintiff can recover even if they are found 99% at fault, the plaintiff can still recover the remaining 1%. Finally, there is Modified Comparative Negligence (the majority of the United States, and now Florida). In those jurisdictions a plaintiff cannot recover damages if they are found to be 50% or 51% or more at fault (depending on the state).
Our Negligence laws provide the framework for how monetary compensation may ultimately be determined by a jury of one’s peers. Knowing how a State’s Negligence laws will impact your Jury Trial and the risks on the horizon.
Geography
You do not need to be a Presidential scholar to watch Election Night and know the West Coast and Northeast are “blue” and thought of as “liberal”, while the Plains and South are “red” and believed to be “conservative”. Where your matter is located definitely impacts the realities and perceptions of the Trucking Industry before a jury. However, just because you may be in a “Red State” does not mean your defense has it easy. For example, in Webb County, Texas (on the Texas/Mexico border in Laredo, TX), plaintiff’s counsel seek to file there even though you are venued in a conservative state observing a Modified Comparative Negligence standard. The venue has become notorious for big dollar plaintiff wins.
According to the United States Chamber of Commerce, lawsuits are draining the American economy, as it adds massive costs to businesses and then to consumers. The cost of the tort system totaled $443 billion in 2020 or 2.1% of the national gross domestic product and $3,621 per US household.
Further, the US Chamber of Commerce has reported that in New York each household pays up to $5408 annually for the cost of verdicts and settlement. Additional examples from the Chamber show households annually pay in Florida $5,065, in New Jersey $5,59, in California $4,599, and in Georgis $4,157 towards these high verdicts and settlements.
Simply because a state’s governor has a “R” or “D” in front of his/her name will not foretell whether the local county courthouse is a friendly venue for the Trucking Industry. For example, one must also be cognizant that in some jurisdictions there are publicly elected judges who must campaign for dollars and therefore may be inclined to rule pro-plaintiff or pro-defense. No matter the perceived election night color of your state, the Trucking Industry cannot rely on geographic location to predict possible outcomes.
Politics & Culture
As the political discourse in our country becomes more strained with people finding and staying in their preferred echo chambers, the Trucking Industry must be aware of the political and cultural environment for the venue they will be seated in.
A matter may be tried in a college town where students are upset their student loans may not be forgiven and take their frustrations out against the Trucking Industry. Alternatively, a matter may be heard in a pro-business environment which may provide the trucking industry with a better environment.
All in all, the political leanings of the venue where the matter will be tried is no longer something the trucking industry can discredit. Furthermore, with the ease of use of search engines a jury pool has immediate access to information about the trucking company, possibly the driver, and even the accident itself if it makes the news. Even though the Judge will tell the jurors not to do any research and just come to a decision solely based on what they hear and see during trial, the Trucking Industry must be aware of the immediate information people can find about itself and others, and the unfortunate false statements that may be included on some websites.
Race
As stated above, justice is blind, but humanity rarely conducts itself with covered eyes. The trucking industry includes persons of all races and welcomes them to the ever expanding and crucial role it plays in American business and commerce. It cannot ignore the sometimes-implicit bias people have about others they have not met and know very little about.
In a jury trial, first impressions matter and there is no more immediate impression (sadly and unfortunately) than what we look like. The trucking industry can try to move itself to satisfy the worst foibles of society, or it can lead and promote racial equality and trust while it defends itself in multiple legal settings. We hope it always chooses the latter.
Conclusion
The plaintiffs’ bar is ready to litigate and do all it can to, not only manipulate the law and facts, but also to use geography, politics, culture, and race to achieve higher monetary awards for their benefit, and the detriment of the Trucking Industry. These sensitive subjects can no longer be ignored and must be present when evaluating a matter, and strategizing before a Jury Trial. The trucking industry must consistently champion for Blind Lady Justice, and it must be sure to lower its veil, open its eyes, and be ready to address these sensitive subjects now and into the future.
Mehdi Arradizadeh Vice President of Safety & Risk Management, Anderson Trucking Service, Inc.
Mehdi has been in the trucking, insurance and safety industries for more than two decades, and has learned safety through trucking litigation and claims handling. Mehdi’s accomplishment has been to develop blueprint of aggressive claims management, with emphatic, truth/honesty and transparency in handling claims. Mehdi is also heavily invested in driver behavioral intervention, instead of accident ratio or firing of drivers. With the driver behavior modification, Mehdi believes, severity of accidents will go down. Mehdi started with Schneider National in the claims department and moved up to become a Director of Claims. Mehdi then moved to Covenant Trucking in 2009 as the Director of Claims and Security. Mehdi has been with Anderson Trucking Service, Inc., since 2010 as the Vice President of Safety and Risk Management.
Yaron Shaham, Partner, Kahana & Feld LLP
Yaron Shaham, Esq. is the Chair of Kahana Feld’s Trucking and Transportation practice group and the Co-Chair of its General Liability practice group. Mr. Shaham focuses his practice on the defense of trucking and logistics companies, business owners, landlord and tenants, and financial institutions. He is experienced in business litigation, insurance defense, real estate, and financial services litigation. Mr. Shaham has an extensive track record of success, including having obtained summary judgments and early dismissals, and negotiated numerous settlements for his clients in very complex and sophisticated matters. Mr. Shaham prides himself on striving to keep clients happy by maintaining clear lines of communication, offering candid advice, and working hard to achieve success as efficiently as possible. Mr. Shaham is licensed to practice law in the States of California and Texas.
