You’re asking, “What does General Colin Powell have to do with trucking litigation?” Technically, nothing. But we found this very thoughtful article a valuable approach to how our industry thinks about and prepares for litigation. At ICSA we are committed to bringing our members the best, most current information that’s the most useful in their business. We asked trucking litigation expert Doug Marcello for his permission to share this article with ICSA members. Yes, it’s a bit long but well worth reading! Thank you to Doug and to your law firm, Saxton & Stump.
Why It Matters
We need to evaluate a trucking case similar to the Powell Doctrine’s use of military action.
What's The Problem?
Too many trucking cases “happen.” They drift on a course followed by every prior case that has been taken by a company, insurer, or attorney.
Rote. Without thinking or analysis. Without an objective or an endgame.
Complaint. Discovery. Settle. Repeat.
Too many insurers are locked into a claims manual. Too many attorneys “work the file” rather than attack.
We need to have a strategic analysis of legal actions before committing resources and then follow that course, evaluating at each mile mark.
What is the "Powell Doctrine?"
Leaders of the post-Vietnam military analyzed the lessons and vowed never to be in that position. General Colin Powell articulated a doctrine of analysis and conduct to ensure military success.
The distillation of its criteria for committing military force are as follows:
1. Clearly defined objectives and winning
2. Force as a last resort for vital interests
3. Military force can achieve the desired result
4. Use decisive, overwhelming force with the intent of winning
5. Do not commit forces without popular support
6. Consequences have been thought out
In short, do not commit our bravest citizens without the commitment and resources to accomplish the objective.
"Powell Doctrine" to Trucking Defense
While not comparing the commitment of or risk to our military, we should learn the lessons and apply the doctrine to the defense of suits brought by the billboard attorneys.
The American Transportation Research Institute’s Nuclear Verdict report points to many of the same elements as factors that determine the nuclear potential of verdicts.
Clearly defined objectives: What is the objective of this litigation? Is there an evaluation of the exposure and risk? Is there an agreement on this among all the players – company, insurer, and attorney?
This objective needs to be addressed from the beginning of the case. Actually, from the instance of the accident. All parties should then move together towards that objective.
Litigation as a last resort: Lawsuits present risks and generate expense. Avoiding a suit is generally in the interest of all.
However, this does not mean capitulating to demands or throwing money at the case.
Avoiding litigation can be achieved by the development of strength. Strength of case by:
1. Developing a complete and effective safety program BEFORE the accident
2. Immediately and thoroughly responding to the accident to maximize discovery and development of evidence
3. Act aggressively post-accident – push back to letters of rep with demands for releases and independent medical examinations, surveillance, even sue them first
Don’t be afraid to flex your muscle. If you have video that exonerates, share it with the billboard lawyer early. These folks who are driven by money are dissuaded from investing time and money in a case with little or no return on investment.
Aggressive response and action can avoid litigation. Consider this and other alternatives.
Litigation can achieve the desired result: Is the objective of the case obtainable by litigation? Will the cost, time, and effort of a lawsuit reach the objective defined at the beginning and agreed to by the company, insurer, and attorney?
If not? Institute early and immediate efforts to settle. Get the car repaired and be there with a check. Pay for the funeral and initiate engagement. Mediate pre-suit.
If the objective is realistically achievable without suit, why? Focus your efforts to settle. Settle before their expectations are inflamed and damages inflated by a billboard attorney.
Use decisive, overwhelming force with the intent of winning: In the words of Meek Mill, “Scared money don’t make no money.”
Be in it to win it. Don’t scrimp on costs disproportionate to the risk. And in today’s world of thermonuclear verdicts, you cannot be nonchalant on any claim.
The cost of surveillance is minimal compared with its persuasive impact in today’s “YouTube” society. Same with thorough investigations uncovering witnesses and videos.
ATRI identified the failure by trucking defendants to engage experts as a major element in nuclear verdicts. The billboard lawyers aren’t pulling punches. Neither can we.
Witness preparation and focus group experts are similarly invaluable. Failing to do so can destroy a defensible case.
Failing to do so is kinda like taking a knife to a gunfight. Except, you don’t even have a knife.
Not all cases require you to go “full Navarone.” However, you cannot afford to be out-resourced in these cases.
Don’t commit without popular support: Support by all three players – company, insurer, and attorney. Same page. Same commitment.
The trucking companies are key players in today’s reality of deductibles and retention to slow-growing premiums. They have considerable skin in the game. They are crucial for commitment and ongoing communication.
Consequences have been thought out: Settlement v. verdict. What is the potential exposure to the insurer and, in today’s climate of potential excess verdicts, to the trucking company.
Bottom Line
Every claim is potentially explosive requiring thorough analysis and full commitment to defend. Start with analysis akin the Powell Doctrine and then follow the commitment you have made.
Every year, TAT (formerly called Truckers Against Trafficking) honors a member of the trucking, bus or energy industry, whose direct actions help save or improve the lives of those exploited or prevent human trafficking from taking place, with the Harriet Tubman Award
Bob Costello has indicated that the freight market has improved – but very slowly – since January. It must be said that ATA’s indices are dominated by contract freight as opposed to spot rates.
Now, however, with Republican control of both houses of Congress and the White House (and, some say, the Supreme Court) I am optimistic that trucking will get a fairer shake than it has during Biden’s term in office.