Previously in this series: How to confront the post-crash litigation threat -- start at the scene of the accident
Vallie Dugas is Associate General Counsel for Melton Truck Lines. She comes from a trucking family, of a fashion. Her father owned truck dealerships when she was growing up. Her diesel mechanics’ knowledge from time growing up around the shop is “absolutely useless knowledge” these days, she said. “I almost never have a mechanical failure case” in her current role defending her company.
After law school, and a brief time defending maritime-related cases in federal jurisdictions, she answered an ad for a position with $28K starting pay. “It was a plaintiffs’ firm,” she said, among the biggest advertising firms out there. She hadn’t known that when she answered the ad, but ultimately wound up accepting the job and serving there for 12 years.
Dugas presented a kind of anatomy of the plaintiffs’ attorney shop as part of the Truckload Carriers Association’s Safety & Security Division annual meeting this past June in St. Louis, with a mind to give carriers of all shapes and sizes tips on getting ahead of the threat of litigation from such firms.
How do plaintiffs’ attorneys get cases? Well, you’ve seen the billboards, the Youtube videos, the city buses decked with custom-wrap ads bumper to bumper – that much is obvious.
[Related: Dodging the ambulance chasers]
As a practical matter, Dugas said, the injured party, Mr. Plaintiff, calls an “800 number and it’s a hotline – just a room of 100 people answering phones. They take down the information,” then an “investigator” is dispatched to that person’s home with a contract retaining the lawyer. “A lawyer is assigned and we’re off to the races.”
It’s at this point the trucking company is likely to receive the initial letter of representation on the case, informing you that the plaintiff has retained the lawyer. Oftentimes, said Dugas, “you’re thinking, ‘Why is this lawyer taking a case and there’s not even a scratch on the car?’”
Truth is, the lawyer at this point likely “doesn’t know anything about it,” Dugas explained, adding it’s a form letter in which the plaintiff’s shop just inserts the date of the loss, name of the plaintiff, etc. “The lawyer has never laid eyes on the client – it can be more than a year before the lawyer ever gets involved.”
This is your first strategic advantage, she added, your first opportunity to turn the tide on a case where the facts back you up.
Get the lawyer face-to-face with the plaintiff as soon as possible.
In contrast to a typical defense lawyer’s relationship with his/her clients, there’s “no loyalty between plaintiffs and the plaintiff’s lawyer,” Dugas said. How she felt when she was one: most plaintiffs viewed her as the only thing standing between them and their money.
Exploiting this lack of loyalty, and the fact that plaintiffs and their lawyers don’t often meet until latter stages of the case, can be particularly useful when you know you have a plaintiff who is a “dirtbag,” said Dugas. She described a case involving a truck and a passenger vehicle whose driver clearly was making money selling marijuana. Dugas, with no intention of truly settling the case, nonetheless set up a mediation with the plaintiff’s lawyer as early as possible. “What I wanted was that lawyer to sit in that room with those people for eight hours and experience them,” Dugas said. It helped in this case that the people involved in fact actually smelled like marijuana smoke during the mediation.
As noted, Dugas and company did not settle that day, but postponed for six days. Before that time was up, she got a call from the plaintiff’s legal team. “They said, ‘If you still want to settle, we’ll settle cheap with you.’ You’ve got to get that plaintiff’s lawyer out so that he/she can make the same assessment as you.”
Larry Harlow, Sentry Insurance’s trucking claims director, agrees that it’s ideal to get the plaintiff and his/her actual lawyer in the same room as early as possible, yet notes in most cases the “problem is most of them don’t have the desire to do that.” Junior paralegals are the points of contact for Sentry’s adjusters working cases, sometimes even at the point that counsel is retained in a serious case. Too often, “we’re calling to get information to continue our investigation or to get information on the injury and we don’t get any sort of response,” Harlow said. “You’d be amazed. Until they hit you with a time-limit demand with this huge medical claim and a big injury, you’re sitting and waiting on information for two years” sometimes.
They’re “not just missing our calls,” he said.
Working to accelerate that process will inevitably involve legal counsel, which Sentry retains for its insureds early on in serious cases, Harlow added.
Getting all parties in the room early can present other opportunities, too, Dugas noted. You might avoid trial by cutting through what Dugas called “Plaintiff Math,” or the tendency of plaintiffs to think solely about the lump sum of a jury award or settlement and not the reality of their cut of the pie, with attorney’s fees often 33.3% before any suit, 40% after.
Be sensitive to how these realities are processed, she said. “One thing that you might do in mediation is … say to the plaintiff, ‘We’re going to be talking about a lot of numbers today. You need to understand how much you’re going to be paying to this lawyer and this doctor and how much you’re going to be netting. That’s your money. Can you afford to lose’” if the case actually goes to trial?
In-person mediation makes this possible. Dugas notes she’s seen success targeting her communications around the numbers involved in a potential trial to the person in the plaintiff’s circle – often not the plaintiff him or herself but a relative – who is the “decision maker” among the group. Say the “plaintiff shows up with 14 people” in tow, she said. “You don’t know who the decision maker is until you really get engaged. … I like to lean in and find out what’s going on with them.”
She proffered the question above -- “Can you afford to bet you’re going to win at trial and be responsible for these medical expenses?” – as next to surefire to yield ID of the decision maker. “That person will sit up,” she said, “because they’re the one who is going to be paying for that.”
Ultimately, break down the reality that the longer the process drags out, the bigger the numbers get in terms of payment to medical providers and attorneys, and those payments are the plaintiff’s responsibility, fundamentally. The end result can be more favorable, speedy settlements.
Negotiation requires understanding unmet needs, and can save you money.
Horse-trading dollars back and forth and “paying a lawyer for all that time” is a total waste, Dugas said. “A real negotiation should be a plan that you put in place. If you’re not agreeing on dollars” with the other side, “you may have mis-valued the case, or they may have.”
Understand that a plaintiff’s attorney won’t be able to fully estimate the value of a case him/herself before all potential medical treatments are done, when an injury is involved. “When we pass the bar, we take an oath to uphold the law and protect our client,” Dugas underscored. “It’s not our job to weigh in on the wrongness or rightness of what they’re doing – the same is true of the medical doctors. If somebody shows up with their own doctor” and reports an ear pain, the doc doesn't say, "I suspect that you’re lying.”
It’s possible to jump the gun on settlements, at once, given that plaintiff’s lawyers “can’t actually settle” unless and until they “know that the person has completed” any and all medical treatment. If they did settle and failed to gain an amount sufficient to cover their client’s expenses, after all, the plaintiff then is liable to “come back after the lawyer” for restitution.
Sussing out what truly matters to some plaintiffs, at once, can be a winning strategy in cases where meeting those needs can save you a massive settlement. Dugas told the story of an accident where a young man driving a pickup truck was injured, and the accident was at least partly the result of the big-truck driver’s actions. Dugas and company offered a substantial settlement in negotiations, but “he wouldn’t take it,” she said. “We sat down and found out that he was a third-generation fireman.” The nature of his injury meant “he was no longer going to be able to be a fireman – his entire family legacy was ruined.”
His principal concern wasn’t money, necessarily, but about being able to go forward. Dugas and company agreed to “pay for a four-year college education at a college of his choice.”
The upshot, ultimately, for the trucking company: “We were able to get the deal done for less money.”
It’s possible of course to get even more creative with your settlements. The “craziest thing” Dugas has ever seen? One plaintiff wanted “a bag of Hershey’s Kisses” in addition to a little money.