Attorneys Leonard Leicht and Harold Moroknek, both of Marshall Dennehey Warner Coleman & Goggin, review emerging trends in trucking and transportation cases and how counsel are responding to plaintiffs that employ Reptile Theory strategy.
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Best’s Insurance Law Podcast
Emerging Litigation Trends in Trucking and Transportation
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John Zuba: Welcome to Best’s Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I’m John Zuba, managing editor of Best’s Recommended Insurance Attorneys. We are pleased to have with us today two highly accomplished attorneys from the New York and New Jersey offices of the civil defense litigation firm, Marshall Dennehey Warner Coleman & Goggin, Leonard Leicht and Harold Moroknek, lead Marshal Dennehey’s Trucking & Transportation Litigation Practice Group. Both men are tremendously experienced in the field. Leonard has been in private practice for 35 years and is among the 2% of attorneys in New Jersey who are certified civil trial attorneys before the New Jersey Supreme Court. He has achieved over 100 verdicts on trucking cases and handles all aspects of litigation from Carmack or cargo loss claims to motor vehicle litigation. Harold Moroknek is located in the firm’s Westchester County New York office. Harold has over 33 years of private practice and is AV rated by Martindale-Hubbell, the highest rating for an attorney’s professional competence. He has litigated hundreds of trucking and transportation matters, achieving a number of defense verdicts. A former New York State prosecutor, Harold has handled numerous motor vehicle accident-related investigations and crimes. Gentlemen, thank you both for joining us today.
Leonard Leicht: Thanks John. We’re happy to be here.
Harold Moroknek: Thanks John. Thanks for having us.
John Zuba: Today’s topic of discussion is confronting the creative plaintiff in trucking and transportation litigation and Harold, we’re going to start the questioning today with you. Can you identify any emerging trends that you have been seeing in your cases?
Harold Moroknek: Indeed, we can John. I’m glad you asked. It seems more and more plaintiff’s attorneys are creating to create what we call reptile-type claims. We’re seeing an increasing in number of attorney’s attempt to set up such a narrative separate and apart from the accident itself. The narrative they try to focus on involves the rules, defendants’ rules, their regulations, their policies and their procedures and of course violations of those very same rules.
John Moroknek: Now Harold, you mentioned the reptile theory. What exactly is that?
Harold Moroknek: Yeah, sure John. In a nutshell John, it was introduced approximately a decade ago. The two guys, David Ball and Don Keenan came out with their kind of how-to book in 2009 called “Reptile: The 2009 Manual of the Plaintiff’s Revolution.” Frankly, the book started a craze. Plaintiff’s attorneys were talking about it. It morphed into seminars, CLEs, conferences, articles, meetings and it was all aimed at spreading the word about how to tap into a juror’s reptile brain. The focus was on a motion. They sought to remove logic entirely from the case. The Reptile Theory itself asked the jury to focus on safety and security issues or rules and the idea is to encourage jurors to envision themselves in the same position as the plaintiff which we all know as a general rule, is not allowable. The strategy relies on an attempt to attack what’s been known and called The Reptilian Brain or the fight-or-flight, survival reaction portion of the brain, engaging the most primal part of the juror’s mind. Here, what happens is John, counsel seeks to actually provoke the feeling that if the defendant’s actions are allowed to continue, then the community and even the jury itself may be in danger. Again, invoking the idea of emotion over logic. But for the Reptile Theory, plaintiff’s attorneys had to be careful to avoid invoking this Golden Rule when addressing the jury. Their arguments had to rely on the evidence presented. They could not push jurors to reach a verdict based on jurors putting themselves in the shoes of the plaintiff or based on how those jurors wish to be treated. The Reptile Theory allows or sets the foundation for plaintiffs’ attorneys to ignore this Golden Rule while at the same time making a similar impression on jurors. Yeah, the attorneys frankly start by establishing safety rules. They try and show how a defendant’s unreasonable actions violated the rules to put a plaintiff in danger and they set the bar at that standard and not at the standard code(ph) the court would instruct which has Leonard and I have spent a good deal of time. In fact, we spend most of our time defending transportation cases and we deal everyday with frankly the inherent bias towards truckers and bus drivers and commercial transportation folks. We know that plaintiffs in these reptiles cases attempt to appeal to the core belief that people want themselves and their families to be safe.
They use the fact that most people do not like trucks or large commercial vehicles to begin with. And most have had bad experiences at some point in their lives with trucks or large commercial vehicles on the road. With this inherent bias and the Reptile Theory on top of that, it certainly makes things interesting. And that is why we work so hard to see to it that these cases are controlled from the start. One of the things I will tell you parenthetically is that you know, the ultimate motivator, Ball and Keenan, the authors of the reptile bible have reported that plaintiffs’ attorneys who successfully use the tactic have returned over seven billion dollars in verdicts and settlements. As expected, defense attorneys have responded quickly to develop strategies that defeat reptile tactics. One of the things I will tell you, excuse me, is a written article just a couple weeks ago from a May 2020 magazine, a New York law reporter, about the author speaking about the justice served by big verdicts in response to accusations. These techniques were unscrupulous and trample the rules of evidence. So that’s kind of a brief idea in answer to your question, John.
John Zuba: The idea of this bias against truck drivers is an interesting topic. Leonard, what can you do when the plaintiff’s attorney applies the Reptile Theory approach and tries to capitalize on the jury sentiment in the courtroom?
Leonard Leicht: Well John, I think the first thing you have to do is that Harold indicated recognize that that bias exists out there. Presumably, in your jury screening, you’ll have screened out any potential jurors who have involved personally in the accidents who had a family member involved in an accident involving large commercial vehicle or any commercial vehicle for that matter. But don’t kid yourself. I mean, everybody who’s an adult, everybody who’s a motorist and who’s been on the road at some time in their adult life has seen trucks on the road and potentially seen a truck driver to something silly, but they’re also just behind the truck on the road and they get scared and they get nervous that they can’t see beyond the truck and what’s this driver going to do and it might be it terrifies them and that’s what the Reptile Theory is playing towards. So, in terms of confronting it in the courtroom, John, the first thing you have to do is see it before it bites you, pardon the pun. How do you do that? Well, it gives some pretty obvious tales in the pleadings and in the matter in which plaintiff conducts its discovery. If you have pleadings where the plaintiff is asking you for information such as give me all information as to your safety rules and regulations, violations of safety rules and regulations, he has questions about unnecessarily endangering the public, this will prove to you that this plaintiff has either done this before, has read the literature where he’s trying to exploit the Reptile Theory as Harold just explained to you. You can to confront in the courtroom, but once you’ve gone to the courtroom, you’ve gotten past the discovery stage of the case, you try to resolve it one way, shape or form or maybe try to motion it out and were unsuccessful. So, what I do is try to — you know, that the Reptile Theory says throw logic out and just appeal to this base notion of safety. I tried it bring it back to rationale fort. So, I tell the jurors when we start the case, you know, and you’ve just taken an oath and that oath is really important. And John, I’ll say it to you, I’ll say it everybody, how many times in your life where you actually going to take an oath, right? It’s a pretty solemn thing. Perhaps becoming a citizen of this country, perhaps when you maybe when you pass the bar exam, you get admitted, military service, an oath is a big deal. That’s a big thing. And I tell the jurors outright from get-go and I try to set it up lf that plaintiff doesn’t want you to follow this oath. That plaintiff doesn’t want logic to prevail on this case, but you as jurors, you took an oath and that oath was to be fair not just to the plaintiff who claims to have been injured, but also to the truck driver and the company that employed the truck driver. So, you got to get that in your heads right from the get-go. And then at the end of the case, when you have your chance to speak to the jury after all the evidence is presented and we can talk in some detail about what the presentation is like and what plaintiffs will try do during the course of the trial, but I do try to circle back at that time John. I try to remind the jurors at the end of the case. Remember I told you about that at oath at the beginning, you know, and now you see why it was so important. You know, you try to bring up an example where plaintiff tried to appeal to your reptilian brain and in fact, I know lawyers who are actually showed the book of how to describe to the plaintiffs in their closing before us took to the jurors in their closing before us. No juror likes the feel that they were manipulated. No juror likes the feel that a lawyer especially was trying to put one over on them and to the extent you position the case that way and explain to the jurors that when they apply logic, when they apply their oath, they’re going to come to a different conclusion, I find that to be very successful.
John Zuba: What about the trucking or transportation company itself?
Is there anything that they can do internally and are there any rules or recommendations you provide to your clients, Harold?
Harold Moroknek: There sure are John. I’m glad you asked that question. So generally speaking, there are themes or ideas defense can utilize to help spoil or dismantle plaintiff’s attorney’s Reptile Theory. If your witness in safety directly speaks to them, look the best defense is to work closely with the witness, take the time you need to prepare the witness for the deposition of course, try to avoid allowing plaintiffs to make a record he can use at trial, have the client designate a safety or corporate witness to use on all cases for consistency, work with the client and prepare him or her for what to expect and of course, explain plaintiff’s goals to them. So, there are a number of themes or ideas that we use when preparing our witness for deposition and of course trial. And the first is to avoid getting yes as an answer. Reptile Theory questions are actually designed to allow a plaintiff’s attorney to testify or provide a narrative. Plaintiffs will try on every question to get the defense witness to respond with yes in response to all these questions. Plaintiff’s attorney wants to get into a rhythm, kind of a cadence and provoke yes answers to the questions to establish a pattern. Much like the defense cross-examination in the criminal case, it’s very effective. Simply put, the defense witness should not or should try to not get caught up in the plaintiff’s attorneys cadence or rhythm and avoid giving yes answers in every occasion. There is no choice or if there is no choice but to agree with the question that’s been asked, the witness might offer a complete sentence response that at least restates the question. If a plaintiff’s attorney insists on a yes or no answer, there are certainly alternatives to providing an answer such as you could say, “Well, it depends” or “I don’t think that I could answer that particular question yes or no. Would you like me to explain why?” And here’s one that we find in almost every one of these cases where the plaintiff’s attorney asks, “Would you agree there’s nothing more important than safety?” A good answer to that question is, “Not necessarily. Safety is of course important and there are many important functions we provide. We do not rank them. But obviously, we prefer there were never accidents or injuries.” So, that’s kind of a look at the first theme. The second idea or theme is that the safety rule is never simple. Look, plaintiffs’ attorneys want to ask simple questions to show that a safety rule is simple. The entire Reptile Theory depends on a simple safety rule and a violation or claimed violation. But almost no rule is simple or absolute for that matter. With few exceptions, each decision that a person makes involves some safety risk and almost every rule has an exception. So, the defense’s attempts to block the overly simplistic safety rule idea and in doing so thwarts the reptile approach. No rule can fully prevent danger. Safety concerns, we stress, must be measured in the context of real life issues. For example, surgery is dangerous, but sometimes necessary. Our trucks and cars driven on the open road are not made of or wrapped in rubber. Knives are sharp, but we need to cut our food. Take the common question that we talked about before. Safety is a top priority, right? Well, it’s hard to say that it’s not and a witness directed to answer yes or no will likely say yes, but the witness needs to consider what that question really means especially because the reptile safety question lacks specificity and context. So, responses to those types of questions such as not always or it depends on the context and circumstances and I need you to be more specific with that question are valid and appropriate. So for example, question. Safety is always a top priority, right? Answer. Well, that’s a very broad question. So I guess that I’d have to say it depends. Firefighters risk their own safety all the time. Police officers speeding to get to the scene of the crime put other people’s safety at risk. People driving to work at rush hour creating a safety risk. Heck! Chopping vegetables for dinner is a safety risk. Every decision is a calculation. So, that’s another examination or another topic or issue that we look at with witnesses going into deposition. There are a couple of others that I’d like to address. The next or the third is my personal favorite, which is the defendant’s conduct was reasonable.
What do we mean by that? The priority of an attorney using the Reptile Theory cares less about the facts and details of the accident and more about creating his narrative about the safety rule. By asking hypothetical questions, the plaintiff’s attorney, remember, seeks to create a simple yes cadence to help create his narrative. In doing so, he or she also gives up some control or they tell the testimony and expects a yes response to every question. If a witness can avoid that trap, the questions create a great opportunity to lay out the message the defense wants to get across in its defense case. This is a hugely valuable opportunity in deposition and at trial in that a particular message, the defense message can be broadcast throughout the case and frankly will always involve the position that the defendant acted reasonably. Remember, never let your adversary define the parameters of the argument. In negligence cases, the jury is supposed to decide if the defendant acted reasonably. A plaintiff’s attorney will attempt to replace the vague reasonableness standard with a clear and simple safety rule and anytime that safety rule can be undercut, we try to do that. So, know your message and use that message in every answer where it might fit. And John, the last idea or rule is probably the simplest of all the rules and that is to not answer damages question. Look, a plaintiff’s attorney will almost certainly ask a question about whether a person who causes damage should pay for that damage. It’s hard to say no to that question. Instead, a defense witness should let the lawyer know that the question sounds like one that should be answered by the lawyer or perhaps ultimately the theory and look, this is a great opportunity for the attorney to voice objection which under the circumstances seems a reasonable approach. To kind of sum up these four ideas, okay? We have to keep in mind that in every step of the litigation, from the very beginning to the very end, the purpose, idea of the Reptile Theory is to promote fear and danger. Counsel seeks to threaten the safety and well-being of the jury, their families and frankly, their friends. In response, the defense must provide a coherent theme that gets the jury to focus on the good company reasonable story and this, in an effort to remove the focus from the reptile.
John Zuba: Leonard, do you see any other trends or theories being pursued in litigated cases?.
Leonard Leicht: Yes John. There are trends or two theories that I see being advanced more and more that I want to touch on today. One is claims based on theories of negligent hiring, retention training or supervision of drivers. Now, think about the typical truck accident. You have a truck driver and that truck driver may be an owner operator or he may work for a company or he may be leased to a company, but usually there are two defendants in the case, one being the driver and the other being the company that employs the driver. What we see plaintiffs doing more and more now are attempt to have alternate theories of liability. Their first theory is that, “Hey, look, the driver was negligent and that driver’s negligence caused the accident and therefore I should be compensated.” The way the theory goes is that the employer of that driver under an agency theory will respond (00:18:41) will be responsible for the conduct of the driver and be responsible to make the payments if the driver could not make the payments on the damages award. What plaintiffs were now also doing is trying to assert a separate course of action or a separate theory against the employer of the driver and by that, they’re saying like, “Hey Mr. Employer, we know that the driver was negligent or we believe the driver was negligent, but irrespective of that, you also bear independent and direct negligence because of the manner in which you hired, retained or supervised the driver in these cases.” Now John, I think these cases are very, very defensible and in fact, I’ve been very successful in getting a lot of them knocked out on motions, although some judges are more resistant to dismissing theories and others. The first thing I tell anybody to do is if the facts support it, admit agency. If there’s no basis to deny the fact that this driver was in your employ, just acknowledge it and admit it. If you’re going to lose the motion, you’re going to lose the argument anyway ultimately and if you admit agency, you can say to the judge that, “Hey look judge, I’m responsible for the driver’s accident.” No matter or as long as the plaintiff is successful in proving negligence against the driver. So for argument’s sake, if the driver is 100% at fault, I’d be responsible as the employer for compensating the plaintiff. If the driver were 50% at fault and the plaintiff were 50% at fault, there’s only 50% of damages to be apportioned anyway.
So, there wouldn’t never really be a basis for an independent claim or an independent theory for negligence against the owner of the company when the owner admits that that driver was acting as their employee or their servant at the time of the accident. The other thing I would tell you John is that you the cases, forgetting the legal order(ph) of it, trucking and transportation are heavily regulated, right? There’s a Federal Motor Carrier of Safety Act and there’s regulations that have been acted over the course of many, many years and they’re very, very well safe to work and they really have never changed from year to year. But with regard to hiring a driver, the actual technical term is called qualifying a driver. The owner of the trucking or transportation company qualifies a driver and there are specific standards and rules that that company must follow. The first thing you have to do is make sure that your driver is properly licensed as a CDL from the state in which he resides and that’s actually 90% of the battle John because if the driver is properly licensed, he’s already qualified to drive a truck. He’s already been found to have a sufficient training, he’s passed the test and that the licensing authority has already indicated to the world essentially that this driver is qualified to drive a truck. The next thing you have to do as a company is get a written application and there are many companies John that outsources. There are companies — internet companies that do this application process for you. The applications are one online. They’re reviewed. They’re either approved or rejected. A trucking company before qualifying a driver will have to check references and if after doing all of that, they feel they want to go forward with this particular applicant, given the drug test, kind of obtain a motor vehicle abstract. John, assuming that that the employing company does all those things, they’ve complied with the Federal Motor Carrier Safety Act. They were not negligent. So, to the extent that plaintiff will argue, “Well, you could have done more.” As Harold says, isn’t safety important? Couldn’t you have done more than the federal government requires you to do? The answer to that is you could always do more. There’s no limit to what you can do, but the question is what are you required to do? What is the standard of care that you have to do? And if you meet all the requirements that I just set forth, you’ve done what the standard of care requires and I suggest, John, to anybody that has one of these cases, that if there’s an expert out there that says, I believe as an employer, as a trucking company, you should have done more than what the Federal Motor Carrier Safety Act requires, I challenge that expert. Find out, you know, take his deposition, find out the basis for his claims because I think what you’re going to find out once you push on that is nothing more than an opinion and it’s for trying to make a case for a plaintiff. John, the second sort of hot topic, if you will that we see a lot going on with is our broker claims. Brokers are not transportation companies, but they’re rather companies that facilitate transportation. This would have a middleman between the shipper, somebody sending goods in commerce, between them and the company that actually transports the goods. So, plaintiffs now, if there’s a situation where for whatever reason they don’t feel they can make a proper format complaint which is a claim essentially for lost property or goods damaged in transit, where they feel that the trucking company is not financially responsible and can’t make a payment that they’re seeking, they’ll try to hook the broker into the case. The very first thing and almost an important rule would tell anybody out there, defending broker claims is, get the case into federal court. Federal court. Federal court. Federal court. If there’s a Carmack, C-A-R-M-A-C-K account in the complaint, you have a federal question. If there’s diversity, you have diversity. Get into federal court. The cases for the most part that touch on these issues are all decided out of federal courts. The judges have heard all the arguments before, they’ve seen these cases before, they have more time to spend with you. If you can get the case into federal court, get it there. If you get a case against a freight broker, remember one thing and that’s preemption. There’s something called the FAAAA which is an acronym for the Federal Aviation Administration Authorization Act of 1994. You can see why people call it the FAAAA. This is a Reagan era statute that involved the deregulation of the airline industry essentially, but it also covers trucking and transportation. The key John, to the FAAAA is what I called earlier preemption and what the FAAAA says is that states can’t interfere with interstate commerce. They can’t pass their own laws that affect interstate commerce because this is something that we want universal amongst all 50 states. So, if you get a claim alleging that a broker committed malpractice with negligence, they were the agent of the trucking company, remember federal court won that FAAAA preemption too. And essentially, what you can do John, if you get one of these cases is you can file a motion to dismiss on the pleadings.
If plaintiff is alleging that the broker was negligent in selecting the carrier, that’s out because that’s the state law. If they’re saying there’s some sort of fraud or some sort of consumer fraud act kind of violation, they can lock those cases out on a motion. At the end of the day John, the only case, the only count you would see left is a pure breach of contract case and I can assure you that in most of these cases, there’s nothing in a contract between a shipper and a broker which in any way says that the broker is responsible for damages caused as a result of motor carrier negligence. So again, there are two things. Federal court, FAAA preemption.
John Zuba: Gentlemen, thanks very much for your insight on this important topic today and thank you both for joining us.
Leonard Leicht: Thanks John, happy to be here.
Harold Moroknek: Thank you John.
John Zuba: That was Leonard Leicht and Harold Moroknek, co-chairs of the Trucking and Transportation Litigation Group at Marshall Dennehey and more information on this topic may be found at www.marshalldennehey.com. And thank you all for joining us for Best’s Insurance Law podcast. To subscribe to this audio program, go to our webpage, www.ambest.com/claimsresource. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at law podcast @ambest.com. I’m John Zuba and now this message.
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