CLM’s Transportation Community regularly gathers claims, risk, and legal experts in the transportation field to discuss trends in the industry. In this edition, moderator James Foster leads a discussion on whether, and how much, the strength of the plaintiff’s attorney factors into trial strategy; virtual mediation; and the benefits of meeting with the driver, safety director, and witnesses during pre-trial preparation.
Jim Foster: In your experience, do trucking cases get better over time? Is the strength of plaintiff’s attorney and their familiarity with federal trucking regulations, the venue, and whether the trial Judge is likely to admit certain evidence important factors in your case evaluation and defense of a case with the potential for a nuclear verdict?
Matt Shusterman: Trucking cases can get better over time. However, for a case to get better it is important to communicate with the insured/client throughout the case, so you build a good relationship that lasts. It is important to understand your adversaries’ experience level handling trucking cases and the venue, but those are typically not determinative if I am going to try a case. More important factors are the facts of the case, the reasonableness of the demand, and whether the insured is also in agreement about trying the case. A judge’s rulings on the admissibility of evidence, depending on what is or is not allowed, could change the evaluation of the case, but on the other hand, if I think the judge’s ruling is plainly wrong, this creates an appealable issue if there is an adverse verdict.
Abigail Schaney: No, they inherently get worse over time. Venue does play a large factor into case evaluation as well as the presiding judge as to their historical decisions. A plaintiff’s attorney’s familiarity with federal trucking regs as well as who the attorney is may impact the approach on the case slightly but ultimately ensuring the defendant’s attorney is prepared as well as having strong rebuttal evidence I find to be key in ensuring success through the litigation process.
Michael Mazurczak: Trucking cases should get better over time with proactive handling. In this context, “better” means positioning the case for an optimal resolution. Prompt and thorough investigation is a must. Site investigation is critical. It is important to understand the topography of the accident site, and the existing weather and lighting conditions at the time. A comprehensive review and understanding of the company’s training and hiring guidelines is essential. The driver’s experience and record are key. Are there systemic problems with hiring and training? Was the driver exhausted or impaired? Evidence that might anger a jury increases the risk of a nuclear verdict. A meaningful case evaluation always requires an understanding of plaintiff’s counsel experience and tactics, the dispositions of the jury pool, and the likely evidentiary rulings of the trial judge.
Jim Foster: What has been your experience with virtual mediations in resolving trucking cases? Is it your standard practice to require that the plaintiff attend the mediation and is a second mediation often necessary? How do you handle plaintiff’s attorney’s request that the defense make a good faith offer before plaintiff will agree to a mediation?
Matt Shusterman: Since the pandemic, virtual mediations have gotten more popular, but I think for more complex cases, in-person mediations work better. I believe some plaintiff’s firms have been less prepared at virtual mediations or send attorneys who are not familiar with the file, compared to in-person mediations. However, a lot depends on what the plaintiff’s lawyer has told his or her client about the value of the case. If the client has unrealistic expectations about what they are going to settle for, the case is usually not going to settle whether it’s done virtually or in-person. I also think it’s very important that the plaintiff attend and the insured attend, or if that is not possible, the insured should be updated about the negotiations. I do not particularly like someone else dictating what should be done before going to a mediation, but I believe if you have been negotiating before the mediation begins, that is helpful to getting the case resolved.
Abigail Schaney: Post-COVID era, virtual mediations are pretty much the norm for all as some states are still restricted. Ultimately, I have had good results with virtual mediations and oftentimes while it may not settle at the end of the scheduled mediation, the last offer will remain open for acceptance for a short period after the conclusion. Most cases I have had tend to resolve either at the virtual mediation or within the extended offer period. Second mediations can and do often occur but only in those cases where the plaintiff counsel needs to talk their client out of the clouds to a real settlement value. It is more successful with having the plaintiff attend. Oftentimes an offer is extended prior to the mediation which sets the case up with a starting point to move forward. I have not experienced a plaintiff attorney refusing mediation without an offer first.
Michael Mazurczak: In-person mediation is my strong preference. Virtual mediation too often results in multi-tasking by the participants, and resulting distractions. I prefer in-person mediation because it helps focus everyone, especially the plaintiff, on the task at hand. If the case is not resolved, it will be tried. Trials are in-person, not virtual. I want everyone to appreciate this and be motivated by a desire to shape a fair and acceptable resolution. With regard to an initial pre-mediation offer, every case is different. In my experience, it usually serves little utility. I remind plaintiff’s counsel that the claims professional or insured’s claims manager has no intention of wasting anyone’s time (including his or her own). The client/carrier is well versed in the facts, has reviewed the submissions and is prepared to negotiate.
Jim Foster: How important is it to meet with the driver, Safety Director, and 30(b)(6) witnesses at the very beginning of the case and in advance of depositions, to prepare these witnesses for a consistent trial theme and defense closing argument? Have focus groups and/or mock trials been effective in evaluating which cases should be tried and which cases should be settled?
Matt Shusterman: It is extremely important to not only meet with your insured and driver when a claim comes in, but also to keep them updated about the case throughout the life of it. That doesn’t mean calling them after the case settles. That means updating them on phone calls and emails about discovery, how a deposition works, making sure they are involved in mediations and updating them about settlement discussions, and ultimately attending a trial. An insured should not be surprised about anything that happens in a case if you are keeping them updated. Good communication and good relationships with insureds ultimately lead to better outcomes. Mock trials and focus groups can add value, but having a good partnership with your insured is the key to successful results.
Abigail Schaney: Basic discussions occur early on and I think it is very important for defense counsel to talk with the drivers in order to be successful at trial. Understanding how the driver will present to a jury could easily change a case’s course if they do not present well. Same with 30(b)(6) witnesses. Mock trials and focus groups I have found, offer a potential juror’s perspective to the case as presented and has assisted in determining if the evidence as well as witness presentation will be effective during the actual trial. The results of these oftentimes provide insights to defense counsel on changes they may need to make in arguments as well as determining if it should go forward to trial at all.
Michael Mazurczak: This is critical. The witness must be prepared to withstand reptilian tactics. The lawyer must know the safety guidelines and how to rebut these attacks. The witness must be educated on how to respond to safety questions, hypotheticals, and binary questions. It is critical for the defense to develop a theme and frame the case in a way that a jury can easily understand. If liability is conceded, consider having the driver and company apologize. Finally, knowledge is power. A mock/focus group will show which themes work, which evidence is compelling, and how witnesses and arguments are perceived by laypeople.
Meet the Panel
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as chair of CLM’s Transportation Community. He is also on the faculty and executive council of CLM Claims College’s School of Transportation.
Matt Shusterman joined Prime Insurance Company, an excess and surplus lines carrier, as a claims attorney in January 2020 working out of its Exton, Pennsylvania office. Shusterman is currently a senior vice president managing property and bodily injury claims, in addition to supervising a team of adjusters. Before working for Prime Insurance Company, Shusterman was an attorney in Philadelphia at a regional insurance defense firm.
Abigail Schaney is the corporate claims manager for RTS Holdings, LLC/RoadOne. She has been in the insurance industry for over 20 years. Prior to moving to the client side of the transportation industry, she held a variety of positions within claims, underwriting, agency management, managing both bodily injury adjusters, as well as property damage teams, for a national insurance carrier for 15 years. In addition to this, she was a third-party administrator for transportation carriers across the country. She has partnered with legal defense teams to ensure success in and out of the courtroom from low speed vehicle impacts to catastrophic losses inclusive of defense strategy management, litigation budgeting and partnering with excess carriers. She currently holds her AIC, PCLS and FCLS designations.
Michael Mazurczak is a trial attorney who has practiced for 30 years at Boston-based Melick & Porter, LLP. His primary areas of practice are professional liability, transportation, and catastrophic injury litigation. Mazurczak also coordinates and provides nationwide litigation oversight of employment claims for a global insurer.