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Psychological trauma can befall anyone. Better advocates comprehend that truck drivers who have been involved in a catastrophic accident suffer from significant emotional stress. When investigating an incident, we should have two main goals: to get the best information and to minimize re-traumatization.

To get there, first, it is important to understand the personalities of lawyers and truck drivers.

Dr. Larry Richard, founder of Lawyer Brain LLC, opines on common personality traits of lawyers in “Herding Cats: The Lawyer Personality Revealed.” Larry Richard, J.D., Ph.D., is the founder of and Principal Consultant at Lawyer Brain LLC, a consulting firm that focuses on improving lawyer performance through personality science. He formerly chaired the Leadership and Organization Development Practice at Hildebrandt International, and before that provided similar services at Altman Weil. He is a leading expert on law firm leadership practices and group dynamics in law firms and the nation’s leading expert on lawyers’ personalities.

Using the Caliper profile created by Lloyd Semple, Dr. Richard evaluated over 1,000 lawyers, and several patterns emerged that distinguished managing/entrepreneurial partners from the “service lawyers.” Managing partners were found to have traits of:

• High ego drive: The desire to persuade for the sheer passion of persuasion
• Empathy: The ability to step into the shoes of others
• Resilience: The ability to bounce back from criticism and rejection

Like most psychological profile tools, the Caliper Profile must be supervised in a formal setting and would be unreliable if taken by an individual.

The average Ego Strength score for the rainmaker was 63 compared to only 43 for “service partners.” Common traits of “service partners,” which make up the vastly larger population of lawyers are:

• Skepticism: High levels of this trait are important for success as a lawyer in litigation because these lawyers are cynical, judgmental, questioning, and argumentative
• High urgency: “An intensity to their behavioral style since they are results-oriented;” (i.e. “Herding Cats…” p.5)
• Low sociability: Defined in the study as the desire to interact with others on a one-on-one/intimate level. Most lawyers prefer dealing with information, intellectual arguments, and mental interactions, rather than issues of the heart
• Low resilience: Over 90 percent of those profiled have traits of defensiveness and sensitivity to criticism
• Autonomy: Resistance to being managed

Consider now the common characteristics of the average truck driver based on scientific research. According to Karen Landay, Dustin Wood, P.D. Harms, Brandon Ferrell, and Shashi Nambisan in “Relationships Between Personality Facets and Accident Involvement Among Truck Drivers” Journal of Research in Personality, Vol. 84 (2020), the following are common characteristics of drivers involved in major accidents:

• Realistic: very “black and white, right and wrong.” They don’t spend much evaluation of the gray areas of life. This can be problematic when the “reptile theory” is used to confront the driver with the rules of the road.
• Risk-takers, exhibitionistic
• Less empathetic
• Anger and anxiety reactive

The authors write “ … a propensity towards anxiety could lead drivers to hesitate or freeze up under pressure, which may lead to poor decisions or delayed reactions. A lack of empathy—the ability to put oneself in another’s place—may also contribute to behavior that endangers other drivers. And although creativity is highly valued in many professions, truck drivers who operate outside the norm may be more likely to contribute to accidents.”

Authors Karen Landay and P. D. Harms write in “Certain Personality Make Some Professional Truck Drivers More Dangerous Than Others” Character & Context (May 2020) that being a truck driver is a grueling and often thankless job. Time away from home and a generally unhealthy lifestyle are only two factors impacting high turnover rates—more than 90 percent in 2017.

A 2017 study published in the “Transportation Journal,” Vol. 56, Issue 1, gives insight into truck driver frustrations:

• Wellbeing. Truck drivers experience loneliness and isolation. They also experience health issues that may go unaddressed. Being away from home and an overall unhealthy lifestyle take a tremendous toll.
• Respect. Truck drivers feel slighted by four-wheelers, customers, dispatchers, and managers. Perhaps drivers should not take all the antagonism personally, but now that you understand the personality traits of drivers, the fact is that they do.
• Regulation. While most drivers recognize the purpose of regulations, they also worry about their pay, eligibility to drive, and being told how to do their job.

In rapid response, our task is to gather all the available information about a particular incident. We focus on who, what, when, where, why, and how.

Trauma-informed interviews require more than “just the facts.” For survivors, logic and rationality do not always apply. Often a survivor will demonstrate signs of deception, such as the inability to deliver a coherent narrative, lack of consistency in recounting an event, and remembering vital details later.

“When Just The Facts Doesn’t Work,” was written by Bryan Barlow, CFI. Barlow joined the Chicago Police Department in 2002 and was promoted to detective in 2008. He serves as a training coordinator and instructor for the CPD’s Bureau of Detectives, where he has researched, written curriculum, and delivered training to new officers, newly promoted detectives, and in-service department members. His training and instruction has covered investigatory topics such as interviewing victims and witnesses, interrogation of suspects and trauma-informed interviewing, with a focus on interviewing sexual assault victims.

According to Barlow, we must understand the effect of trauma on the brain and adjust our style accordingly because the trauma survivor’s impression of us will affect, not only their participation in the investigation, but also their ability to recover from the trauma.

In trauma, the brain takes self-protective measures. The amygdala (the emotional center of the brain) releases hormones that increase stress and energy levels (adrenaline and cortisol) as well as hormones that dull physical and emotional pain (opioids and oxytocin). The hormones flood the prefrontal cortex (the rational center of the brain), which leads to the traumatized individual acting on the fight/flight/freeze instinct.

This hormone deluge also affects the parts of brain that forms memory. Trauma survivors do not remember in a logical, sequential manner; they remember sensory and emotional fragments.

When asked what happened, the trauma survivor likely will not respond to the typical “who, what, when, where, why, and how” because the prefrontal cortex was overloaded at the time of the trauma. We cannot treat trauma survivors as witnesses to their own trauma. We should ask sensory and emotional or experiential questions.

A lawyer must understand his or her personality traits and suppress them. A lawyer must understand the common personality traits of truckers, which may be reactive, defensive, aggressive, distrusting and “all or nothing mentality.” Superimposed over those personality traits is loss of control and loss of power for the trauma survivor.

Start by empowering the driver

Be empathetic and patient. The typical lawyer charges around like he or she is on their way to a fire, but a trauma-informed lawyer may take several meetings to get all the necessary information. Initially, get the truck driver to discuss his history, his family, the reasons for becoming a truck driver. Put their mind at ease, regardless of fault.

Questions and statements should be prefaced with a request for permission: “Can I ask you…” or “Can I tell you…” This empowers the trauma survivor by giving them choices.

Questions should also be open-ended. Allow the trauma survivor to lead. Start with “Can I ask you what you are able to remember about the incident?” Because the traumatized brain recalls incidents in sensory bits, sensory-based questions act as cues to retrieve memories. “Can I ask what you are able to remember about what you saw … heard … smelled … tasted … felt.”

The traumatized brain may concentrate on certain details more than others. This focus may frustrate or seem unimportant; however, lean into seemingly insignificant detail. Ask the trauma survivor to tell you more about the detail. This may trigger recall to a bigger picture of the overall incident. The process takes time to emerge.

Conclusion

Our own personality traits and those of the driver influence our ability to collect information. Additionally, by understanding the impact of trauma, we concentrate on the overall experience rather than specific details. Being open-minded, taking our time, and focusing on the needs of the trauma survivor will greatly improve our ability to obtain reliable, helpful evidence and mitigate the effects of trauma on the surviving truck driver.

Mark Perkins is the managing partner of the law firm Perkins & Associates, LLC in Northwest Louisiana where he practices primarily in commercial and trucking defense, as well as premises and products liability defense and general insurance defense. Mark is editor-in-chief of the Quarterly Newsletter for the Trucking Industry Defense Association. He is also a trauma-survivor witnessing the shooting death of another child when he was 12 years old. For more information, he can be reached at www.perkinsfirm.com or perkins@perkinsfirm.com.

In chess, as in trucking litigation, the field is constantly evolving and changing. One must constantly be thinking many moves ahead. Every move has a reaction that has game changing results or consequences. In the trucking litigation field, we are constantly seeing changes that include revisions to the FMCSA, state laws and regulations, and industry safety practices. Currently, we are seeing a rise in the amount of trucking accidents across the country. See National Safety Council Study: https://injuryfacts.nsc.org/motor-vehicle/road-users/large-trucks. Additionally, there is an increase in injuries resulting from trucking accidents as well. Id.

We are also seeing jury awards for trucking accidents balloon. A study completed by the American Transportation Research Institute indicates that the average jury award increased 1,000 percent from 2010 to 2018. See https://truckingresearch.org/2020/06/23/new-research-documents-the-scale-of-nuclear-verdicts-in-the-trucking-industry. Given this increase, the likelihood of a verdict in excess of the policy limits has become a major litigation concern. First, an obvious one, the client is stuck in a position of paying significant amounts of money from nuclear verdicts. Second, insurers are faced with further exposure on the ever-growing bad faith litigation front.

In chess, as the game changes and develops, so does our opponent’s strategy. The same goes for trucking litigation. As our field changes as a result of the rising number of trucking accidents and nuclear verdicts, the Plaintiffs’ bar develops strategies to put additional pressure on defendants and insurance carriers. One of the most prevalent tools used by the Plaintiff’s bar is the settlement demand letter. Plaintiff counsel generally send these letters for two reasons:

1. Attempting to settle the claim before having to spend any time or resources in investigating and litigating the claim.
2. Setting up the bad faith claim.

Responses to demand letters can be viewed as an opening move in chess, as our response can have major ramifications in how the trucking accident litigation and the potential bad faith claim are handled. This article endeavors to provide some practical tips on how to adequately and strategically make your “opening move” when responding to a demand letter in an effort to reduce the risk of a bad faith claim down the road and hopefully avoid falling for the Queen’s gambit.

Understanding the Basics

In order to win in chess, a player must checkmate the opponent’s king. Additionally, it is common etiquette to resign to your opponent when there is an insurmountable advantage that a path to a checkmate is clear. However, if you believe that checkmate is not clear, then one does not have to resign just because your opponent believes he is unstoppable. When we receive a demand letter, it is invaluable to understand when to settle to not act in bad faith, or “resign to our opponent.”

There is no uniform rule on when a liability carrier must settle a claim to not act in bad faith. Simply put, there are many different tests and rules that each state and jurisdiction follow that need to be analyzed prior to responding to a demand letter. Taking that into account, a majority of courts have held that because the insurer has exclusive control over the litigation and settlement, as reserved in the liability policy, it obligates itself to settle claims asserted against its insured for the amount up to and including the policy limits, when the claim justifies a settlement. See Herges v. Western Casualty & Surety Co., 408 F2d 1157 (5th Cir. 1969); State Farm Mut. Auto. Ins. Co. v. Skaggs, 251 F2d 356 (10th Cir. 1957); Groce v. Fidelity General Ins. Co. 252 Or. 296 (Or. 1968); Herges v. Western Casualty & Surety Co., 408 F2d 1157 (8th Cir. 1974).

Most courts place a burden on the insurer to act in good faith in responding to demand letters that are within policy limits. See Comunale v. Traders & General Ins. Co. 50 Cal 2d 654, 328 P2d 198, 68 A.L.R.2d 883 (Cal. banc 1958); Zumwalt v. Utilities Ins. Co. 360 Mo 362, 228 SW2d 750 (Mo. 1950); Brown v. United States Fidelity & Guaranty Co., 314 F2d 675 (2nd Cir. 1963); Murray v. Mossman, 56 Wash. 2d 909, 355 P2d 985 (Wash. 1960).

Some courts require the insurer to act with due care of in a “non-negligent” manner in responding to a reasonable settlement demand. Trahan v. Central Mut. Ins. Co., 219 So 2d 187, (3rd Cir. 1969), application den. 254 La 12, 222 So 2d 66.

As is the case with the duty to settle, there are numerous definitions of what constitutes “bad faith.” Many states have statutes that prohibit specific acts of unfair claim practices of insurers. Generally, an insurance carrier, acts in “bad faith” when the insurer had no reasonable basis for denying benefits under the policy and the insurer knew, or had reason to know, that its denial was without reasonable basis.

Generally, the fundamental foundation for a bad faith claim is established at the time of the initial settlement demand letter. The demand letter is significant as it establishes

• the claimant’s requests to completely and comprehensively resolve his or her claim
• lays the blueprint for any potential subsequent bad faith action.

This is the equivalent to playing two games of chess on two boards against the same player. Given this, it is good practice when responding to the demand letter to think steps ahead. For example, when you review the demand letter, it is important to determine the reasons why the Plaintiff requests settlement. Compare those reasons against why you believe denial is reasonable. Think about the investigation that you need to undertake to defend the claim. If you strategically review the demand letters like you are playing two games of chess, then you are more likely to obtain a better outcome for your client and the insurance carrier.

Your Opening Strategy

There are hundreds, if not thousands, of opening strategies in chess. You can start with the Baltic Defense, or maybe even the English Opening, or my favorite the Fried Liver Attack. (Don’t ask me what these mean). These opening strategies become the cornerstone for how the game will play out.

Because the demand letter is usually the cornerstone of a bad faith claim, a practical opening strategy in responding to a demand letter is to understand what the Plaintiff included and more importantly what is missing. We have all seen well-thought-out demand letters and poorly drafted demand letters. We have seen the settlement demand packet full of information supporting the claimant’s position for settlement. These demand letters usually contain the claimant’s medical records, medical bills, supporting documents evidencing special damages, witness affidavits, emergency response records, expert data and opinions, truck engine downloads, citations to FMCSA regulations, and other relevant records and documents. However, with every well-thought-out settlement demand packet there is the one page “pay the money” letter, which contains no supporting documents.

Generally, a bad faith claim is ultimately based on the information known to the insurer at the time of denying a claim. A practicable tool in responding to a demand letter is to simply identify what is contained in the demand letter at the outset of the response. This will establish what information was known at the time of the response and, more importantly, confine any argument that the insurer knew or should have known of information that was not presented to it at the time of the denial.

Additionally, identifying documents and information that are missing from the demand letter is great evidence for establishing that the insurer is acting in good faith. Either way, setting forth what the demand letter contains or does not contain also helps evaluate what further investigations that need to occur. Allowing you to think many moves down the road like a chess grandmaster.

Make Sure You Hit the Timer

Making sure you make your move within your allotted time is extremely important. Likewise, many demand letters will be time limited either by a specific date set out in the demand or upon a future event, such as the filing of a lawsuit. Many claimants assert that the insurer’s failure to resolve the matter within the arbitrary time limit set out in the demand is evidence of bad faith. However, many courts have held that an insurer has not committed bad faith if it cannot determine the validity of a claim and respond to a demand letter within the time limit set forth in the offer. See e.g. Allstate Ins. Co. v. Herron, 634 F.3d 1101 (9th Cir. 2011); Grumbling v. Medallion Ins. Co., 392 F. Supp. 717, 721 (D. Or. 1975), judgment aff'd, 545 F.2d 686 (9th Cir. 1976).

In fact, many courts have determined arbitrary and unreasonable time demands that do not allow for an insurer and its counsel to evaluate a claim is not evidence of bad faith. See e.g. Walbrook Ins. Co. Ltd. v. Liberty Mut. Ins. Co., 5 Cal. App. 4th 1445, 7 Cal. Rptr. 2d 513 (1st Dist. 1992); Hartford Acc. & Indem. Co. v. Mathis, 511 So. 2d 601 (Fla. Dist. Ct. App. 4th Dist. 1987); DeLaune v. Liberty Mut. Ins. Co., 314 So. 2d 601, 603 (Fla. Dist. Ct. App. 4th Dist. 1975); Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990). 

In responding, you should evaluate the timing of the demand letter. Was it sent shortly after the alleged accident? Has an investigation into the claim been completed? What further investigations need to be completed? This will need to be a case-by-case evaluation. However, when responding to demand letters which set out short arbitrary time deadlines, be sure to include an argument that the time provided was unreasonable and arbitrary.

What amount is being demanded?

Finally, it is strategically important to understand what the demand letter actually demands and what is offered as the release. This may seem to be common sense. However, some demand letters are written so vaguely that you are left guessing at what is actually requested or offered. When an opponent makes a move in chess, it is important not to just respond. Rather, one should attempt to evaluate why that move was made. Likewise, when you receive a demand letter, be sure to understand what the end goal is.

In order to recover against the insurer for bad faith, generally, it must be shown that the claimant made an unequivocal demand to settle the claim arising out of the occurrence and for an amount equal to or within the policy limits. See e.g. Seward v. State Farm Mut. Auto. Ins. Co., 392 F. 2d. 723 (5^th Cir. 1868), see also 14 Couch on Insurance 3d § 203:18 (2005). As mentioned previously, the rising number of nuclear verdicts and growing number of bad faith claims arising in the trucking litigation field is an ever-present thought for the Plaintiff, the insurer, your client, and you. Given this, the terms laid out in the demand letter need to be established and should not have to be guessed. The reasoning for understanding what exactly is being requested is simple: establishing the exposure.

Courts have held that the absence of a settlement offer within policy limits is not dispositive of the issue of the insurer's good or bad faith, but just one of the factors in determining whether an insurer acted in bad faith by failing to settle. Id. § 203:20, citing Berglund v. State Farm Mut. Auto. Ins. Co., 121 F.3d 1225, 1228 (8th Cir.1997); Hartford Ins. Co. v. Methodist Hosp., 785 F.Supp. 38, 40 (E.D.N.Y.1992); and State Auto. Ins. Co. of Columbus, Ohio v. Rowland, 221 Tenn. 421, 427 S.W.2d 30, 35 (1968).Given this, be sure to determine whether the demand letter is requesting settlement within or at the policy limits or if it is requesting more than what the liability policy limits that are available.

Further, you should make it a habit to determine and highlight what is being offered in response to a settlement: i.e. is your client being protected? It has become commonplace for Plaintiff’s counsel to demand the world in a trucking accident, yet take an unreasonable position of not giving anything in return. Despite the common strategy of “sacrificing a pawn” in chess, we do not want to place our clients and their insurer in a disadvantage. When a Plaintiff’s demand letter sets out unreasonable demands, I believe it can be helpful to highlight the unreasonableness of the demands in order to stay ahead of any potential bad faith claim.

By taking into account these opening strategies in responding to a Demand Letter, you can effectively and strategically reduce the exposure of your client and its insurer in the ever-evolving trucking litigation field.

David A. Nasrollahi is an associate in the Wall Templeton & Haldrup, P.A.’s Charleston, South Carolina office. David concentrates his practice in Trucking and Transportation litigation, Insurance Coverage and Defense, Premises liability, and Construction law. David can be reached at David.Nasrollahi@WallTempleton.com.