2024 New Years’ Resolution: Prepare Trucking Cases from a “Jury Centered” Perspective

Feb 21, 2024Supply Chain Chronicles

To achieve our 2024 New Years’ resolutions, we must first acknowledge in the absence of resolution, we must be prepared for litigation. As the new year begins, some things in trucking litigation remain constant: fact patterns; liability arguments; large demands. The dreaded sideswipe or tap, which months later yields several serious surgeries, is likely not going away. The trucking defense bar continues to face a savvy plaintiff’s bar willing to leverage psychology and harness the cultural zeitgeist in order to ask juries for large verdicts, and defendants for large settlements.

Exposing the Plaintiff’s Mindset

Before an answer is drafted, defense lawyers need to understand plaintiff’s mindset.  Only once the mindset is understood, “jury centered” litigation preparation can begin.  Let’s start with overall mindset. Large verdicts (and consequently, large settlements) have been on the rise for about fifteen years. There has been research, articles, and seminars presented about this topic, including by this writer. The reasons are often boxed into discreet categories, without much thought given to their interplay. What if instead we look at these categories as inextricably intertwined and feeding, and gaining momentum from each other? This reframe will help us to understand the plaintiff mindset.

How the Cultural Zeitgeist Leverages the Reptile

Let’s start by considering two dynamic factors: the late 2023 cultural zeitgeist, and social media, which gain momentum from each other. These two factors also interrelate with a concept proposed in Reptile: The 2009 Manual of the Plaintiff’s Revolution, by David Ball and Don Keenan. In Reptile, Ball and Keenan manufactured a role reversal of plaintiff and defendant, using techniques to have juries take the focus off of the plaintiff, and shift it to the defendant.

Our cultural zeitgeist is a dynamic factor which evolves with the economy, politics, and current events. Writing this article in late 2023, the cultural zeitgeist in America involves, the end of a global health crisis, though not quite the end of COVID-19; the reckoning of systemic racism; years of political division; and recently, the events of October 7, 2023, in the Middle East, and its aftermath including protests, and unrest in America, particularly on college campuses. Each of these events, as well as their confluence, have changed our zeitgeist, as they play out on social media, which in turn creates a cyclical momentum.

So how do these current events relate to psychology and role reversal of plaintiffs and defendants? Many ways, as it relates to humans, both thematically and emotionally.

Thematically, there is an oppressor/oppressed narrative which is being advanced on social media and in person, and then in turn back on social media, so it picks up momentum and captures maximum attention. How does this relate to the ideas discussed in the 2009 Reptile?

In Reptile, Plaintiffs bar astutely “switched” the roles of plaintiff and defendant in litigation using two concepts to advance its theory. First, it took the emphasis off plaintiff’s conduct (or lack thereof) and shifted to defendant’s conduct or lack thereof. How was that able to happen? By taking two concepts: choice and chance and framing plaintiff arguments to emphasize the defenses’ conduct as a choice rather than chance.

CHANCE. CHOICE. View these words in the context of TIMING.

CHANCE: In the moment. Unexpected. From the French word: “cheor” which means “befall.”

CHOICE: Selecting. Making a decision. A course of action.

Do you see a difference in TIMING? CHANCE exists in the PRESENT. CHOICE the PAST.

CHANCE happens. CHOICE is VOLITIONAL, CONTEMPLATIVE.

How does this have to do with trucking litigation? If a truck driver goes through a red light killing a pedestrian, was it choice or was it chance which led to this tragic outcome? With the Reptile NOTHING happens by chance, it is all by a calculated choice, which happened long before the accident. The truck driver wasn’t trained, their background wasn’t checked. Chances, however, can happen to anyone. Slippery road, losing control of the truck, encountering an obstacle on the road. However, when events are CHOICES rather than CHANCES, this angers jurors because these were INEVITABLE, PREVENTABLE, PREDICTABLE.

Defense lawyers. Know the underpinnings. Only then can you begin to prepare. Plaintiffs now have a strong oppressor/oppressed frame in place and using the chance/choice dichotomy they can easily translate this into a courtroom where Plaintiff is oppressed, by the omnipotent, wealthy defendant who made the wrong choice. A more sophisticated spin on the age-old theme, “profits over people.”

Only when we understand the underpinnings of Plaintiff’s mindset, then we can prepare a jury centric case.

About Shari Belitz Communications, LLC.

Shari Belitz Communications, LLC uses psychology-driven strategies like mock trials, witness preparation, theme development reports, and jury selection to aid civil defense lawyers and insurance professionals in achieving favorable litigation outcomes.

https://www.sharibelitz.com

https://www.linkedin.com/in/shariebelitz/

About the Commerce Law Partners Consulting Team

Commerce Law Partners has assembled a top-tier consulting team of skilled attorneys, legal researchers, jury consultants, DOT safety management and compliance experts, regulatory advisors, Supply Chain and Logistics Experts, educational and training professionals, and proficient Risk Management consultants. Our collaborative approach ensures a comprehensive and best-in-class strategy for your legal needs in the complex landscape of trucking and logistics. Trust us to navigate the intricacies of federal litigation, providing expert guidance and tailored solutions to safeguard your interests.

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