In recent years, transportation companies, particularly motor carriers, have faced increasingly challenging litigation landscapes. The courtroom battles have often been tough, with numerous seminars and presentations focused on strategies like “how to defeat the reptile” at trial. Despite these discussions, there remains a gap in understanding what actually persuades juries. Our firm has conducted nine mock trials in catastrophic cases over the last two years, offering valuable insights into effective trial strategies. This essay highlights key observations and lessons learned, emphasizing factors like jury anger, deep pocket arguments, the disappearing conservative juror, company policies, and the importance of video evidence.
One of the most critical findings from our mock trials is that anger trumps all.[1] While the reptile strategy aims to evoke fear in jurors, our experience shows that anger is a far more potent emotion. When jurors become angry, it often overrides other considerations such as the quality of the defense’s presentation or the likability of the defendant. Anger can obliterate a liability defense and significantly increase compensatory and punitive damage awards. To mitigate this, defense teams must take extraordinary measures to address potential sources of jury anger from the onset of the case.
Another prevalent issue is the deep pocket argument.[2] Jurors often hold corporate defendants to a higher standard, believing they should have “done more” or “known better.” This belief is especially strong when the defendant is a widely recognized company. Jurors frequently think that large verdicts will not significantly impact these corporations and may even lead to positive changes in behavior. This perception makes it difficult to counteract the deep pocket argument, despite attempts to portray the defendant as a “good corporate citizen” or a provider of critical services during crises like the pandemic.
The concept of the disappearing conservative juror[3] also plays a significant role. In the past, conservative jurors could be counted on to temper large verdicts. However, our experience indicates that these jurors are increasingly disillusioned with institutions, including corporations. They often harbor grievances, real or imagined, and express their discontent through substantial damage awards. This shift challenges the traditional reliance on conservative jurors to deliver favorable verdicts for defendants.
Company policies and safety culture[4] are another area where defense teams must tread carefully. Admitting a violation of company policy, even if tangentially related to the accident, can be damaging. It can lead to arguments that the company failed to maintain a “culture of safety,” resulting in a “death by a thousand cuts” scenario where multiple minor violations create an overwhelming case against the defendant.
In terms of evidence presentation, video wins the day.[5] Jurors are highly influenced by visual evidence, including animations and video depositions. In our mock trials, jurors found video evidence more persuasive than written or summarized testimony. The presence of dashcam footage, in particular, was expected by jurors. In cases where no video was available, jurors often speculated negatively about the absence of such evidence.
The litigation landscape for transportation companies is fraught with challenges, primarily due to the potent emotions of anger and the evolving perceptions of jurors. Defense strategies must evolve to address these issues, focusing on reducing anger, countering deep pocket arguments, and effectively utilizing visual evidence. By understanding these dynamics, defense teams can better prepare for the realities of the courtroom and strive for more favorable outcomes.
[1] Mark A. Barber and Ida Sassani, The Cutting Edge: What Are Juries Telling Us in Mock Trials? Vol. 26, No. 1 The Transportation Lawyer 39 (2024), at 39.
[2] Id.
[3] Id. at 40
[4] Id. at 40
[5] Id. at 41.
