NEWS & REPORTS

“DEFENSE” DOES NOT MEAN “DEFENSIVE”

Sep 27, 2021 | Articles

Doug Marcello

A major failing in trucking “defense” is that is seen as synonymous with “defensive”.

Too often trucking companies and their insurers hunker down after the accident, waiting for the bill board attorney to make their move. Worse yet, even after receiving the letter of representation, they sit by idly waiting for the plaintiff to dictate the time and place of the action.

Because too many see “defense” as meaning “defensive”. Enough!

THE NEED FOR AGGRESSIVE DEFENSE

Passive, reactive, “defensive defense” rarely if ever works. Aggressive, proactive “defenses” often do. And they do so by flipping the script on an opponent, even one that appears to be in stronger position.

Pick your example. Israel in 1966 compared to France in 1939. How did that “impregnable” Maginot Line work out?

How many times have you yelled at the TV when your favorite football team is ahead and decides to play “prevent defense”?

One of my favorite examples is from Malcolm Gladwell’s story of Vivek Ranadive, an immigrant from Mumbai who, despite having never played basketball, coached his daughter’s team to a national championship game despite only two of the girls having ever played organized basketball before.

“They weren’t all that tall. They couldn’t shoot. They weren’t particularly adept at dribbling.”

OK? So how did they do it?

Watching his first basketball game, Ranadive was struck by the illogic that after a basketball, the scoring team retreated and defended only about 24 feet of the 94 feet long court. “He thought it was mindless.”

So he applied the principle “that his team would play a real full-court press, every game, all the time. The team ended up at the national championships.”

Gladwell’s article expands the principle of aggressive defense to Lawrence of Arabia and David v. Goliath, the original pre-pay-per-view Match of the Century that has a scientific explanation. Great Read

And in case you think the full-court press, aggressive basketball only works with youth sports, ask a Razorback fan the name of Coach Richardson’s national championship style of play. Young ones—Google it.

The point is that too often trucking companies and their insurers only defend the last 24 feet of a 94 feet long contest. They concede the early going, even the middle going, and hunker down for a final skirmish.

You need to take the fight to them. Particularly after the letter of rep. Keep reading. I’ll get to it.

PROACTIVE, AGGRESSIVE TRUCKING DEFENSE

So what can you do? Hope the advertising plaintiff attorney won’t sue? Avoid antagonizing them and maybe they’ll be kind and gentle? How’s that been working for you?

Sounds ridiculous, but it is too often the “strategy”. If you can call sitting by passively and waiting for the attack a “strategy”.

BEFORE THE ACCIDENT

I’ve written and spoken a lot about pre-accident preparation, so let me just give a recap.

The highlights:

-Have an accident response plan in place NOW;

-Train your driver

-Thoughtfully select and train whomever is going to take “the call”;

-Preselect experts and ensure their 24/7 availability;

-Know what you need to do to preserve data—ECM, telematics, video,…;

-Review your safety plan, manual, training, …and prepare as if you will have to defend it at trial;

-Identify who is going to be the “face of the company” in a suit and prepare them.

Key—if you were on the witness stand, what evidence would you want to present? Develop it now. After the accident, it’s just back-fill.

WHEN THE ACCIDENT OCCURS

Act immediately. Investigate. Document. Get statements from witnesses. Do something!

We have an advantage that none of those daytime TV attorneys have—immediacy. We know about the accident before any of them. If we are not ready and act immediately, we will have squandered our greatest of assets.

Don’t rely on your insurer. If they act immediately-great. If not, protect yourself. In a world of high insurance rates and significant risk retention levels, it’s your money.

You can’t afford to sit by idly if your insurer delays in assigning an adjuster, opening a claim,…. One of my grandmother’s saying was, “the Lord helps those that helps themselves.” Act immediately. Help yourself.

Take the slack out out of the post-accident chain. Do something.

AFTER THE ACCIDENT

This is where the “hunker down”, “defensive defense” is tragically the norm. “What can we do except wait until they sue?” Answer—A lot.

Sue them first. If you have an argument as to liability and you’ve suffered damages (PD, cargo, downtime,…), sue them first. This gives you the jump on the cable TV attorneys by being able to subpoena records and propound discovery against the claimant who, at this point, is represented by the auto insurance company attorney.

More importantly, you have the potential to anchor jurisdiction in the location of the accident rather than allowing the plaintiff to drag you into a “hell hole” on the theory that you are a trucking company and can be sued anywhere. This can save you millions and the industry as a whole hundreds of millions of dollars.

You may even be able to prevent the claimant from if you get a judgement in your favor against the claimant. This can result in res judicata or collateral estoppel–legal terms for “you had your chance and you lost. Good bye.”

Someone recently told me that they do this. “We pursue subrogation on all our cases. We often get our money without having to sue.”

They’re missing the point. You might not want to get your money right away, otherwise you could lose being in a conservative jurisdiction. Sue them. Maximize your suit per discovery and jurisdiction.

Watch the Video Tease–learn what Coach Bill Walsh said before every big game that is the best advice for your defense. But…you have to watch the Video

Push back against the Letter of Representation. Shortly after the accident you will get the standard letter of representation from the advertising attorney—“This is my client. No further communications with them. What are your policy limits?”

Too often this is sent to the insurer after which it is filed it away and waiting for the inevitable. And all that time the claimant is running up medical bills from a doctor to which they are frequently referred by their attorney.

Do something. Push back. Have your attorney send a letter and say all communications are to be to them. And do more.

Include medical and employment record releases in that letter for the claimant to sign and return. Request a list of medical providers and employers. State your need for these records to promptly investigate the claim and potential prejudice if not provided. And do more.

Request that their client submit to an immediate medical examination. Again, make clear the prejudice that you will suffer is they do not agree to do so.

What responses do I get from the plaintiff attorneys when I do this? “I’ve never had this before.” Or, more often, “What right to you have to request an exam before suit?”

My answer? “None. But I’ve documented my request. If this goes forward, you and your client will have to explain why, if you were really injured, you would not let our doctor examine them.”

Quite frankly, I don’t care if they agree to it or not. If we get the exam, great. if not, we have documented the record as to our request. Documentation to challenge that ongoing treatment and medical expenses run up before they file suit.

BOTTOM LINE

We cannot concede an inch. We cannot make it easy for those who want to eat your lunch. That is exactly what “defensive defense” does.

Learn the lesson—full court press in defense of your company.

About the Author

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