The following is a transcript of Episode 13 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: Thank you for tuning into the Championing Justice podcast. My name is Darl Champion. I am the founder and owner of The Champion Firm. We are a personal injury law firm in Marietta, Georgia. Today our guest is our very own Michael Denney. 

Michael is an attorney here at The Champion Firm. He has been with us since February of this year. Michael has a lot of experience on the defense side, including in trucking cases, and so I thought it would be a great idea to have him on the show to talk about his experience on the defense side, but especially as it relates to trucking cases and what he learned defending truck drivers and trucking companies and how that information and experience helps him handle trucking cases today and how it may be able to help you. 

Thanks for joining us, Michael.

Michael: Yeah. Thank you for having me.

Darl: So tell us a little bit about your background, where you went to law school, how you ended up doing trucking defense.

Michael: Yeah, well, I’m originally from Carrollton, Georgia. I grew up there, went to West Georgia, stayed close to home for college, and then I went to Georgia State for law school. Actually went to law school on an intellectual property law scholarship, but when I got out it was the great recession and that was not a way

Darl: They decided you were not intellectual enough. Correct,

Michael: And so ended up a family friend from Carrollton took me under his wing and taught me litigation and that’s how I ended up in the defense. So spent about, I’ve been practicing for 12 years and so I spent about 10 years of that as a defense lawyer.

Darl: Tell us a little bit about the work you’ve done in trucking cases. Did you spend any time at defense firms that specialize in trucking? Were you in a practice area group that handled a lot of trucking cases? Tell us a little bit about that.

Michael: Yeah, in about 2014, 2015, I joined a firm that specialized in almost exclusively in defending trucking cases, and so that’s where I really cut my teeth and commercial transportation litigation. Worked there for a few years. They’re actually known for producing lots of lawyers who have gone on to specialize in trucking and then was recruited by a larger firm to come in and help work on a trucking team there. And so for about nine years of my practice, the vast majority of my cases were all trucking cases.

Darl: And when you’re new to the trucking world, how are they getting you up to speed on this? Is it just like you’re learning as you go? Do they send you off to some defense lawyer, defense research institute seminar? How are they getting you up to speed on this?

Michael: It was a lot of learning on the job and trial and error for the most part. I learned the regulations and the legal environment through just doing discovery, responding to plaintiff’s request for production of documents, doing the investigation. Once you learn about a document or a piece of evidence that you don’t know about, you got to turn to the regulations, try to figure out what it is, what your clients are supposed to have, and then go through the process of investigating those issues. So I really learned by hands-on doing the defensive trucking cases.

Darl: Were you doing work for a big trucking company? Small? Everything in between?

Michael: A little bit of everything. The first firm I did trucking at, we specialized in representing an insurance carrier that largely insured mom-and-pop type trucking company, so one or two drivers, usually a family-owned operation, but they had cases with some larger motor carriers also, and so I got some experience with that. Then later in my career, a lot of my cases were self-insured, trucking entities, so much larger operations with their own money at play and near the end of the defense I was actually working for FedEx Ground as their regional litigation counsel.

Darl: Interesting. So when we deal with a lot of defense lawyers in nont trucking cases, so let’s say your routine auto case or a premises liability case, a lot of times the defense attorney doesn’t get assigned the case until there’s litigation, until the lawsuit’s filed. Is that when you were getting involved in trucking cases, it was only once the lawsuit got filed or were there times that you were jumping in right when the wreck happened or when there was some kind of pre-suit investigation?

Michael: There was a little bit of everything. A lot of cases, especially if you didn’t have a preexisting relationship with the insurer or the trucking company, you would get assigned like a traditional automobile collision type case, but clients that we had preexisting relationships with and especially larger insurers, they would retain us immediately upon notice of a collision and so oftentimes we would be boots on the ground investigating a collision at the location within a few hours of it happening oftentimes before the police have even cleared the wreckage away. The work of a defense lawyer in those contexts often starts immediately upon the first call

Darl: Getting your accident recon team out there and everything and start doing the work right away.

Michael: Yeah. I had a lot of accident recon experts on speed dial and I’d be in the car headed to the scene, calling them coordinating, getting somebody there. We’d be coordinating getting third party administrators involved or adjusters involved to do the initial investigations that would be within the attorney client privilege of work product. We would be tracking down witnesses, anybody that we could find, try to make contact with injured parties, and then we would also be taking steps to preserve evidence from the scene, lock down the vehicles, get them put down in a secure lot, and then going through the process of starting the expert investigation to try to reconstruct what actually happened in the collision while everything’s still fresh.

Darl: Y’all getting to work right away.

Michael: Immediately. I spent Thanksgiving 2018 on the side of 2 85.

Darl: Wow. Yeah. I’ve seen a lot of these defense firms advertising their rapid response teams as something that is a benefit to carriers. Did you ever have a situation where you felt like actually rapidly responding was a benefit as opposed to, “Guys, we could have just got this information the next day or two days later”?

Michael: You’d be shocked. I actually had several dozen cases that resolved very quickly with the injured party directly before they were able to retain counsel because we were at the scene, we got their contact information, we reached out and started working through the process of trying to resolve their claim before they ever even got a lawyer involved or before they could even think about it. And the benefit of that was always you’re usually resolving those cases for significantly lower than they would be worth if they were represented by counsel.

Darl: Right. Advice to people, get a lawyer, don’t settle the case without a lawyer. I’ve seen a lot of that happen lately, especially even in the more routine auto context adjusters reaching out 1, 2, 3 days after a wreck sometimes when the person’s still in the hospital trying to resolve a case. I would imagine that the resolutions in your cases were more substantial than what we see in the routine auto context though, where you’ll have State Farm or somebody reach out and offer $2,500 or something to get the claim resolved.

Michael: They were usually orders of magnitude higher, but oftentimes significantly lower than what we thought the case value would be if the expenses ran away or they got a lawyer involved.

Darl: Yeah. Did you ever have a situation where you felt like something you got at the scene helped you break a case like man, because we were there right away, we found this crucial piece of evidence or this crucial witness that we wouldn’t have had if we had waited.

Michael: It was never really finding something that was a smoking gun. It was oftentimes actually preserving evidence that we needed to have later in the case.

Darl: Right, preventing expoliation and the negative consequences that come along with that.

Michael: Exactly. Making sure to get data from trucks or the physical evidence of their brakes and things of that nature locked down, investigated by an expert before things could happen because in the trucking context, there’s plenty of times when a truck’s not seriously damaged and it gets put back on the road and evidence from the computer modules in the truck or the brakes or things of that nature get damaged or lost over time with just the use of the truck. And so there’ve been plenty of cases that we had where the evidence from inside the truck’s computer system actually absolved our client or helped us mitigate the loss or the damage in the case in some way.

Darl: Got it. Yeah. One of the things I wanted to cover with you is some defense strategies and I think that on the plaintiff side, we see the strategy in action or we at least see the tactics and kind of can figure out, okay, this is part of a larger strategy. You mentioned one strategy, minimize your exposure as soon as possible by trying to resolve it as efficiently as possible before they get counsel involved. What are some other strategies that you kind of saw as a common theme whether, and let’s talk about liability first, we’ll get to causation and damages, but from a liability standpoint, what were some kind of common strategies that you would see?

Michael: I think the first strategy was always you got to know what you’re dealing with and so very quickly evaluating the case, investigating every issue, and then getting that evaluation to the adjuster quickly was oftentimes in and of itself a strategy because then the case could be evaluated timely, early settlements could be reached in that situation, but the use of experts is completely prevalent throughout the defense of trucking cases and that goes to engineers who are able to reconstruct what happened in a collision, investigators who can do significant diligence on a client or to go out and investigate areas near a scene and try to find video and things like that. Had tons of cases that resolved or were had less exposure because of some of the things that we were able to find within a quick time after a collision.

Darl: What about compliance issues with the regulations? I know that’s obviously a big focus in discovery when the plaintiffs are looking to try and prove a regulatory violation. Is that something that y’all made it a point to affirmatively try and vet all potential issues or did y’all take more of a defensive posture and just say, well, let’s just see if it comes up. Let’s see if they ask for it. Tell us about that.

Michael: On one of the trucking teams that I spent the most time working on our standard procedure was we sent out a request for all regulatory compliance documents the day we got the case and we asked the client to send those to us for both preserving the documents to ensure they’re there later in the event of litigation, but also so we could quickly evaluate it, see what we’re dealing with.

Darl: See if you got any problems.

Michael: See what kind of problems there are, and talking about strategy on that issue, you find problems in your client’s regulatory compliance. It’s a great opportunity to reach out to the other side and ask if they want to submit for a pre-suit mediation or want to engage in negotiations.

Darl: Second lesson, don’t agree to pursue mediation with any of Michael’s former clients.

Michael: That’s right. And even beyond pre-suit mediation, you might get into discovery and you might withhold some documents on a objection to see if opposing counsel is going to push back on it. This is too broad of a request, but the goal being withhold or minimize the exposure by withholding issues, and I had written down in my notes the admitted liability trap. I think a lot of lawyers will see an admitted liability case. An answer comes in, they’ve admitted fault.

Darl: Oh, I don’t need to go down this road.

Michael: I don’t need to worry about these documents. And you have the phone call with opposing counsel and say, Hey, we’ve admitted fraud. I’m still working to get these documents. That may not always be true. It may be an attempt to try to mitigate damages or withhold problematic evidence, and so you can’t ever take this stuff for granted.

Darl: I think I spent a very, very brief period of time on the defense side and realized I was not cut out for it, and one of the things that I noticed too was this idea of objecting to see if you get pushback, and it was kind of an odd position because sometimes it’s like the document wasn’t even really particularly harmful and they’re probably going to get it anyway, but it was like, well, let’s just object and see if they push back. I think it’s an important lesson for lawyers regardless of case pushback, send you’re good faith letter even if you don’t think that it may be relevant or have some significance to your case, you don’t know unless you get it. But on the issue of regulatory violations, there are I think some people, the school of thought of, oh, well there’s a regulatory violation even if it had absolutely nothing to do with the wreck.

They get really excited about it and I think it’s common sense, but it’s also clear from the case law there’s got to be some connection to actually causing the wreck. For example, if it’s a sideswipe collision, the fact that they didn’t maintain some record on maintenance of this other vehicle for the period of time they were supposed to has absolutely no relevance. Tell us a little bit about your view and the defense’s view of tying the violation to the actual wreck itself and the importance of that and what y’all’s thoughts were if that connection couldn’t be made.

Michael: Yeah, I guess the dirty secret is you could pick up every trucking file out there and find some sorts of regulatory violations in ’em. It is a system that I’ve never once seen 100% compliance in, but you’re right, the case law is very clear. Any regulatory violation has to be directly linked to the proximate cause of the incident or your client’s injuries, and so we would regularly see regulatory violations that we just simply ignored because…

Darl: It’s not coming into evidence.

Michael: It’s not coming into evidence, and even if it comes in, we get to go tell the jury, ladies and gentlemen, look, they’re making a mountain out of a mole hill. This has nothing to do with the case. The key to getting those in is getting creative and finding a way to link the issues to the case. So if you’ve got an hours of service violation, for example, if there’s evidence that the driver’s reaction time was delayed before the collision, say based on the data from the electronic control module of the truck showed a delay in hitting the brake, you would get an expert to say That appears to be evidence of a delayed reaction. Time and fatigue would be a reason. Now you’ve linked your hours of service violation to the collision. Similar things go for observations of the driver at the scene, things of that nature. Or when you talk about regulatory violations such as prior driving history, prior collisions, you got to go out and find the actual evidence of those prior records that prior history that would be disqualifying if they didn’t qualify properly, you got to link them together.

Darl: Right, right. I mean, I’ve had cases where it’s like, oh, the prior wreck was they backed into a mailbox and it was one out of over the last seven years, not a big deal versus somebody who’s got multiple citations and violations. But yeah, I think that’s an important point and just to reiterate it is being creative and figuring out, okay, what happened here and this is kind of the approach I take is what happened? And then kind of work backwards from there and try and tell that story and figure out what happened. And the same applies to any type of case in trying to trace it to some sort of violation. And we have listeners from other states, but Georgia we’re very, very lucky here because we have a couple good statutes. I mean, one, we’ve obviously got the punitive damages statute, but the second that we have that’s really good for us in these cases is 13 6 11, and the case law is really good on that, on being able to connect a regulatory violation again, assuming it has some role in the wreck to a 13 6 11 claim for bad faith in the underlying transaction.

So even if it doesn’t rise to the level of punitive damages, you might be able to get it in under 13 6 11. That’s important because if it’s an admitted liability wreck in some states they may say, well, look, none of this other stuff comes in. It doesn’t open up another category of damages. It’s irrelevant if negligence is admitted. That’s why I think in just about every case I have that involves a truck, we plead 13 6 11 violations and there’s a court of appeals opinion that came out recently that was pretty good about that, about kind of distinguishing what gets you punitive versus what gets you your fees under 13,611. So definitely if you’re a practitioner in Georgia, look at pleading that in your complaint. Let me ask you about from a damages standpoint in the workers’ comp context, a lot of surveillance goes on in that context. In the other general liability context, I don’t really see a lot of surveillance. It’s kind of hit or miss on when are they going out and conducting surveillance. What did you see in the trucking world in terms of when surveillance would be ordered on a plaintiff?

Michael: Basically anytime that we thought a vehicle was going to get totaled or we had any indication early that they were going to retain counsel, we would have private investigators on ’em. Really. I’ve had private investigators join private gyms and go in and train alongside a plaintiff while wearing a body camera and capture the plaintiff doing military press. I had the same thing happen with…

Darl: I assume that was not a good fact for the plaintiff?

Michael: It was less than great for their case. It was a week before he had a spine surgery. Oh, wow. Had another case with a lady who was a member of the Wendy Hill Athletic Club. My investigator signed up for a temporary membership, went in and played a couple of rounds of tennis on the court right next to her, had a video camera rolling in his bag the whole time, and so we have surveillance tools on the defense. We had access to that from day one, and it was very rare that you would get any pushback on, especially using a surveillance or some sort of investigation tool experts that becomes a little more of a fuzzy line on whether

Darl: It’s more expensive.

Michael: Yeah, it’s the cost, but investigators are cheap in comparison to what they save in some of these cases because both are the ones I just described. They were settled for what would be pennies on the dollar for the case value because the evidence was so damning.

Darl: When you’re doing surveillance, are you having your investigators go out and scrub social media and all these other platforms too, or is that something that y’all would just do as counsel?

Michael: I did lot of that internally. I just felt like I was better social media stalker than most experts, so I did a lot of that myself, but we would have them do all sorts of personal surveillance. They would do some social media investigation on their own as well. They’d go out and knock on doors and talk to neighbors, find out about routines, follow ’em to their jobs when they know that they were headed to work.

Darl: Were there any times that the surveillance didn’t help your case?

Michael: Yeah, it wasn’t my case personally, but I helped out on one that went to trial and big verdict came down. There was surveillance of the plaintiff at a wedding dancing, and the plaintiff’s attorney did a very good job of turning the argument and saying, well, of course she was dancing. She’s at her daughter’s wedding, but she suffered through it and look what happened the week after she had to go to a doctor’s appointment. Her pain had increased and when they talked to the jury after they were pretty insulted frankly, that somebody had come and done the surveillance on a really private event, and so it really backfired. In that case, it wasn’t a good outcome.

Darl: No, I think surveillance can absolutely backfire. I think there’s times that people try and take it out of proportion and they kind of take clips and snippets. I mean obviously the big difference is if the surveillance unequivocally shows the plaintiff doing something they say they can’t do. I think there’s times defense lawyers, especially when they get in their echo chamber, they’re like, oh, this shows them doing this and moving their arm and carrying this S grocery bag. It’s like they never said they couldn’t do that. Right. It’s only when they’re doing something they said they couldn’t do. Let’s talk about the defense evaluation of cases and how the defense is looking at the issues and putting a value on it. So tell us a little bit about your process when you were on the defense side and the way that you were trained to do that.

Michael: Yeah, so the evaluation process always takes place in formal reporting and it’s a slow cumbersome process that you really have to predict and get ahead of as a defense lawyer. Things just don’t turn quickly when it comes to money on the defense, and so I would typically get a case in and do an initial rough sketch of an evaluation, maybe an email form informal within about 48 hours of the assignment, and that’s just giving the adjuster your initial thoughts of the issues where the initial strategy needs to be focused. Then you have typically a requirement within about 30 to 45 days to put together a more comprehensive report that summarizes all of the issues and investigation that have been developed and provide an evaluation with damages the venue and an estimate on what the case exposure is.

Darl: When you’re putting case exposure down, is that ultimate jury verdict? Is that settlement value? What are you…?

Michael: Both, oftentimes you would try to describe it in both terms, and good tip for the listeners is defense lawyers are going to be hedging those reports. They’re going to have an evaluation that’s probably higher than what everybody else is thinking. The average value of that case is at trial because you got to warn your client of a bad result. Defense lawyers don’t lose their jobs for bad results that have been warned against. They lose their jobs when they’ve told the client a rosy picture of their case and then get hammered at trial, and so the reports…

Darl: They’re being overly cautious.

Michael: There’s a lot of caution put in there, a lot of verdict research out of the jurisdictions, things of that nature. You completely scrubbed the internet of any kind of information you could find about similar cases and results in similar areas also, and all that goes in into the report and after the 30 day report, my practice was always, as new information came in, I automatically updated the report that day as I was looking through whatever document it was.

I guess the biggest thing to remember about reporting for people that aren’t defense lawyers is that it is a slow process. If you want something in your case evaluated and to be included in the valuation that the defense counsel’s putting together, you got to get it to ’em early. You can’t send something the day before mediation and expect that the adjuster is going to drop everything and get that authority on your case, and so I tended to predict timelines and try to get evaluations done 30 to 45 days ahead of time. The only way to make sure that the checkbook’s going to be there and ready to write you a check in negotiations, particularly mediation being the most important one.

Darl: Yeah. Well, in the vast majority of cases settle and it’s no secret, but from a trucking perspective, I would imagine it’s pretty consistent with every other practice area. What are some tips for things plaintiffs can do to affect that evaluation mean besides getting you the information early so it can get factored into the evaluation? What are some good tips and strategies you have so that defense lawyer that’s typing up that report puts a higher value on it? And I guess the other question is do they even listen to the defense lawyers? Maybe how to get the adjuster to listen?

Michael: I wrote that down on one of the things people would be surprised to know. I think it’s surprising outside of the defense to learn that they have almost no control over the outcome of the case. I’ve had plenty of adjusters tell me I’m just wrong and not follow my evaluation usually to their detriment, but there’s no control from the defense lawyer. All they can do is make recommendations and investigate, but…

Darl: On the plaintiff side, we have clients who don’t listen to us sometimes too. I mean, it happens and I would imagine that problem can be more pronounced when you’ve got more sophisticated clients who are in that industry and think they know better. I would imagine if you’re an adjuster though, I mean, wouldn’t the same thought process about being overly cautious apply to you too, right. I mean, do you ever want to be the person that puts a low dollar figure on a evaluation and a low offer and gets hammered?

Michael: Well, that’s assuming that the adjusters have the self-awareness to know that they’re at risk of that problem. I often found that the adjusters were more cavalier than management, and I think it’s because management is ultimately the one that’s signing off on it. And so I found adjusters were oftentimes far more aggressive on an evaluation than their boss may be, and sometimes as a defense lawyer, that was my job, is to try to get it to the next level of decision maker so that things could be properly evaluated with the company’s business interest in mind.

Darl: And let’s talk a little bit about that internal process and let’s distinguish insurance from self-insurance on the insurance side, were there different categories of adjusters? So I mean we see it in the auto context. Well, if it’s a pre-suit adjuster versus a lid or if we’ve got a catastrophic adjuster, it depends on case value and every insurance company’s got their own kind of way of doing it in the trucking side, is it different than that or is it similar?

Michael: There’s a lot more cooks in the kitchen. You will have base level adjusters that are doing property damage and low level bodily injury claims, but typically the more exposure a case has, the more severe the injury, the more experience the adjuster that’s assigned to that file has. And in the context of FedEx, once it gets to a certain level of exposure in the initial reporting, there is a claims manager typically much more involved in that. And then beyond just the claims personnel, a lot of carriers have internal counsel. A lot of the bigger motor carriers have what’s called national coordinating counsel, and those are just other lawyers that watch the lawyers litigating the case to try to make sure they litigate more uniformly across a national scale. All of those people have their own opinions. The politics involved there is a nightmare. Everybody has different interests, and so navigating that is a quagmire most of the time and trying to figure out who the person is that can help you get your case resolved. If you’re the defense lawyer taking the spears from the plaintiff’s lawyer, sometimes it’s the challenge.

Darl: What’s the difference with self-insurance in terms of what you saw? I mean, did you have a harder time getting money out of the self-insured adjusters?

Michael: Absolutely. Insurance company, it’s their business to take in premiums and pay claims. That is their business model. It’s part of the way they structure everything. That’s their accounting. It’s in their finances and their budgeting. When you’re dealing with self-insured entities, a million dollars is a lot of deliveries for a company and they view that money very differently. It is direct result of work that has been done, expenses that have been incurred, and so they’re much more reluctant to just evaluate a case and settle it quickly if it’s their direct money. Yeah,

Darl: I could see both sides of it. I could also see insurance companies being more difficult in some respects just because they have more risk to spread around. I mean, again, I think on the routine auto context, I think anybody that’s dealt with State Farm or Allstate over the last several years sees that where they don’t give a crap if they get hit on one case. But if you’re self-insured, I mean, is there more of a fear that, hey, this one case could really have a significant impact, so let’s try and minimize the exposure?

Michael: It really depends on the size of the entity I’ve worked for. The level where you become self-insured is a lot lower than a lot of people would think, and other states have approved some structures that I think are pretty questionable, frankly from a public risk standpoint where a couple of smaller motor carriers come together and they create their own self-insured entity. South Carolina’s a state that does that, and I was shocked to sort of learn the level that they had reserved for claims versus the outstanding claims exposures that they had in some of those cases. And in those contexts, one big case can mean the difference in bankrupting several companies at once. And I have represented clients who were going through liquidation and things of that nature because of claims. And so the size really matters though. If you’re FedEx with 80 plus billion a year in revenue or whatever it is now,

Darl: Yeah, that’s different than that.

Michael: It’s a drop in the bucket on a single case. But if you’re a small motor carrier in south Georgia with 14 trucks and you get hit with a $20 million judgment, you have actual assets, well, you’re in trouble. 

Darl: Yeah. What are some things that plaintiff’s lawyers would be surprised about? You mentioned one of them about adjusters not listening to defense lawyers and the defense lawyer not having any say. So maybe plaintiff’s lawyer anger should be maybe more redirected towards adjusters when a case doesn’t resolve, but what are some things that you would think people would be surprised about?

Michael: I think the general public, just as a whole would be shocked at how much the trucking industry is just the wild west. There are tons of regulations and tons of rules that they’re supposed to be following, but they’re constantly pushing the envelope for pushing their business model to the next level of reducing costs, increasing profits, and they’re always testing whether their business model is complying with the regulations, but there’s really nobody out there actually looking over this stuff day to day. It’s sort of like speeding on the interstate. A lot of people are doing it because they know there’s only a few cops out there actually checking speed, and the industry is sort of operating on that level. There’s a lot of people cutting corners, not complying, and what can look like a clean file on its surface when you dig a little lower, you find out things are a mess and pretty reckless operations, I kind of call it corporate indifference to the safety of the public and the regulatory requirements, and it’s across the industry.

Darl: Do you think the mandatory insurance limits will be raised anytime in the next few years by Congress?

Michael: I think they should be, yeah, for sure. I don’t think the political appetite is out there right now. It doesn’t seem…

Darl: Yeah, I mean it seems like there’s so many other problems in our country and getting Congress to agree on something and change that seems unlikely.

Michael: It’s interesting though because I do think it’s one of the things that I think all corporations or companies, there’s a lot of corporate indifference across industries in America, but the trucking industry is one that scares people because they see it every day, every day. And so I think if the right public relations, I guess campaign happened, we might actually see some changes. My concern is that it is just putting lipstick on a pig when you talk about insurance requirements because at the end of the day, we’ve seen plenty of cases where even the trucking companies aren’t properly insured with the current requirements. So

Darl: Multiple claimants, I mean, is another issue that can erode policy limits. We’ve dealt with that routinely and fortunately haven’t had a significant case where our client’s been left with nothing, but we’ve definitely had cases where our client got almost all the coverage and there was nothing left. So hopefully, I know that’s something that’s been talked about. I hope it’s something that’ll get done. One of the things that surprises me sometimes is when there’s certain cases where you file it and things just look like they’re going really poorly for the defense, there’s violations, the driver can’t be found doing all this stuff, and they just keep defending the case. It’s like, why isn’t this case settling? I mean, is that sometimes a product of the insurance adjuster, the insurance company that’s taken a hard line stance?

Michael: It’s hard to give a bright line rule for that. A lot of the times it’s as a result of an overworked defense lawyer who may not have been able to put the full amount of time that needs to be committed to the file to get it resolved. Or other times there’s adjusters who just don’t know when to accept the evaluation and they want to continue looking for the next issue or the next argument to try to reduce liability. I generally found in those circumstances, those cases don’t get better. They get more valuable with time for sure. And so you can almost look at it as a gift a lot of the times.

And just in my mind, without going too deep into war stories, I mean, I think the biggest case I ever paid in litigation started out with a $25,000 offer of judgment and ended in a large eight figure resolution on the E of trial. And that was the tenor of that case, though. The adjuster never would say enough, go depose this person, go depose that person. And none of it went in our favor. It was every single thing went the wrong way. And so all we did was increase the value of our own case. So I can’t say there’s a bright line rule on what’s going on there, but there’s a lot of, there’s call it overly political thought and a lack of recognition of the actual facts of the collision I think is a big

Darl: Problem. One of the things that I’ve seen too, and again, this isn’t just in the trucking context, but it happens more often because dealing with an out-of-state defendant is just this knee jerk removal to federal court and they remove cases to federal court and then they don’t actually comply with the deadlines and rules. And maybe that was a good strategy 30, 40 years ago maybe, I don’t know. But it seems like there’s a lot of plaintiff’s lawyers that have experience in federal court. We do. I worked for a federal judge for two years. I mean, I have case after case where they remove it and then no initial disclosures and you got to follow up with ’em. They don’t comply with the scheduling order. Sometimes the judges, well, not sometimes, but the judges are more responsive to discovery disputes. I mean, good luck in state court and some of the metro counties getting the issue before the judge.

If you’re in federal court and you’re having issues getting documents produced or things not being searched for, you can really hold their feet to the fire in federal court. So that’s a strategy that’s never made much sense to me, but again, I think it’s probably just a knee jerk reaction to things. Let’s switch gears a little bit and talk about some mistakes you’ve seen because I think this is everybody’s fears that they’re going to do something to screw up their case or to make it less valuable. You mentioned one already, which is the plaintiff’s lawyer just taking the admitted liability response and just saying, oh, okay, well liability is admitted. Let’s just focus on damages. Besides that one, what are some other mistakes that you saw plaintiff’s lawyers make that were kind of repeated and you’d see it across cases?

Michael: I guess the biggest one is we’ve sort of already touched on it also. It’s taking the objections you get in response to discovery and the limited document production or information production that you get, and just accepting that as being all, sometimes it’s not malicious. Sometimes it is a situation where the lawyer has asked for documents, they’ve been given documents, but the client didn’t do their diligence in seeking out information. And that comes out in depositions. That comes out in 30 B six depositions. And so I think one of the biggest mistakes I’ve seen is just accepting what you’ve been given as true and moving forward. Now, there’s strategies sometimes that you might want to employ if they do that. It may be the documents they didn’t give you would be important from a regulatory compliance standpoint. So now you get to use that to show corporate indifference to complying with the rules.

But I think that the failure I’ve seen in a lot of these cases is that failure to file suit and that failure to really dig in and pursue the issues out of trying to save some money on expenses or things of that nature. Because I’ve seen lots of cases that there were smoking gun, very damaging pieces of evidence that just never came out in discovery. They just sat in the defense file and never went anywhere, and the case resolved and everybody was none the wiser. And so you always try to, I now think through on the plaintiff’s side, what is it they don’t want me to know about? How do I figure that out?

Darl: Right. Yeah, I mean, I think a large part of that too goes to, if you’re at a plaintiff’s firm and you’ve got a ton of cases, you don’t really have the time to give it attention. So I think that’s important. It all starts with monitoring your caseload and ensuring that you’re able to handle the cases, but then actually paying attention to it. And I do think that sometimes people can become reactionary. Oh, well, I’ve got this fire to put out over here. Well, in this case they’ve admitted fault. I don’t need to do the digging. So that’s, I think a good tip. What about on the damages and causation standpoint? Because that’s an area where I see plaintiff’s lawyers fall into traps all the time because they just sort of assume, oh, well, they went to the doctor. Of course the medical bills are related and this treatment’s related. They never get the prior records. They never do this. Meanwhile, there’s some defense lawyer over there who knows all about your plaintiff’s medical history. You don’t want to be walking into the deposition with the defense lawyer having superior knowledge. Is that something that happened a lot to you where you were just able to bust people on prior injuries and prior stuff because the plaintiff’s lawyer didn’t do their job?

Michael: Pretty consistently. I would say that was my number one tactic really was catching them with false statements and depositions about prior history. I could do it a lot better when I was younger and had a little bit more of a baby face and a little less gray. I would go in and just act dumb and just let the client spoon-feed me BS the entire deposition, knowing that I had a file full of medical records back at the office.

Darl: Would you save those and show it to the plaintiff’s lawyer later, or would you ever just impeach ’em on at the depo?

Michael: Oh, it was always after the time for reading and signing was long expired. You never bring out impeachment evidence as a defense lawyer during the deposition because you give ’em a chance to correct themselves. You’re much better with a lie that you know can prove is untrue. That’s in sworn testimony, deposition period for amending expires. Now it’s locked in the case and they’ve got explaining to do a trial. And one of my first mentors said, if you’re explaining, you’re losing. And that’s sort of what you’re always trying to do is get the plaintiff explaining their problems to take the focus off of whatever your client did.

Darl: Right. Yeah, a hundred percent. I mean, every case is different. So I understand that in every case, you’re not going to go out and get your client’s 10, 20 year medical history. But as a rule of thumb, at our firm, what I always tell our lawyers is if you’ve got a case where you’re claiming whether it’s a car or auto premises, whatever, you’re claiming more than just a few months of treatment. I mean even if you’re injured before and you’ve got three to four months of treatment, everybody understands that could be an aggravation of preexisting condition and you’re more likely to get the case resolved without having to produce a bunch of prior records. But if you’re claiming a permanent injury, you’re claiming a surgery, the insurance company’s going to want that anyway. I mean, unless it’s a very, very clear limits case for one, they’re really worried about an excess exposure on, they’re going to ask you for it.

So go ahead and get it. Or if you know, Hey, this is one where it’s got really high limits, maybe it’s a $10 million policy, I think it’s a seven figure case, but it’s not worth 10 million, go ahead and get the records. You’re going to file suit that way. You are going on the offensive. You can ask your client about it. If there are red flags, you can prepare them on it for the deposition, and if there are red flags that can be prepared on, you can settle your case. It never ceases to amaze me how much that gets neglected. And you see it time and again with defense lawyers just go into the depos and just hammer the people and catch them in all sorts of different lies. Aside from those issues talking about prepping your client on prior medicals, making sure they recall their prior injuries and their prior treatment pushing on discovery, any other mistakes that you would see plaintiff’s lawyers make that you were like, man, when I switched to the plaintiff’s side, I’m not going to do this?

Michael: Yeah, I think there’s a lot of lawyers out there that hold themselves out as trucking experts, but they don’t know the ins and outs of the industry and they don’t know the regulations. They think they should or they really should. And I think that’s a real weakness I’ve seen in good cases through the years as people not even recognizing when there are serious regulatory issues or things like that that are directly in the documents that have been produced, and they just don’t connect the dots of this hours of service violation is exactly why this collision happened or something along those lines. And there’s just no substitute for familiarity, I think with the regulations and how the business of a trucking company actually works. And then beyond that, I think the biggest mistake I’ve seen with large companies who are going with some of these more modern business structures is not testing the independent contractor relationships we’re seeing just across the board in the industry now, because I think that’s fertile ground for all sorts of discovery.

All sorts of issues come from those independent contractor relationships. The regs basically have a statutory employment doctrine, so you’re not dealing with it the way you will with an Uber or a Lyft case or DoorDash, something along those lines. And it is sort of the same thing as the admitted liability trap. You see that they’re taking responsibility, they’re admitting responding at superior, and you don’t look into, well, how is this driver managed? How is he being supervised by his company? Who is responsible for this driver and what they’re doing? I think a lot of those issues go completely, and I’ve seen lots of cases where I’ve had major concerns with the relationships between the parties involved and it just never came out. And so I would say if anybody is listening wants to think about where to investigate their trucking case, if they’ve got an independent contractor driver, I’d start there. That’s a really good way to get attention to your case.

Darl: So Michael, before we go, just want to cover one more thing. So if there’s a plaintiff’s lawyer out there, maybe they’re handling their first trucking case or haven’t handled a bunch of ’em, what advice would you give to them when they get that case on what they need to do to add value to it?

Michael: I would say probably the same thing I tell to a first year lawyer defending their first trucking case. And that’s, you got to figure out the terms that are used, the documents that are supposed to be existing, and you got to cross compare those with the regulations because in this context, the regulations are your friend. They’re always going to provide a backstop for why you want a particular piece of information, or it may lead to a theory of liability against a trucking company that wouldn’t be available if it’s just an event case or a case against a driver. And so to really start learning it and digging in, get to know those regulations, pull that Federal Motor Carrier Safety Administration website up on your desktop, and every time you see a word you don’t recognize, search those regs. In fact, you can just type in the word you’re looking for into a Google bar and then 49 CFR, and it will probably take you to the correct regulation because they’ve really made it. I think the regulators have intended for the regulations to be easy to use by trucking companies, but they’ve made it very easy to use for us lawyers also.

Darl: Sure. Well, great advice, Michael. Well, thank you for joining us and sharing your experience. I’m glad that you are no longer on the defense side, that you’re now on the plaintiff side and I know you are as well. Yeah,

Michael: Absolutely.

Darl: But if anybody wants to reach out to Michael with any questions about your trucking cases, you can easily find us on our website: You can email Michael at We’ll also put his contact information in the links below.

Thank you for listening to this episode of Championing Justice. We appreciate everybody who listens to our show and reaches out with positive feedback. If you have any suggestions for a guest, you can email me and let me know some ideas. And if you don’t already, please remember to subscribe to our podcast so that you get notice of each edition when it is released.

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