Ep. 41 - Trial Lawyer's Perspective | After the Crash

Mark Metzger:
David, you and I do disagree on a lot of things, but I still respect you. At the end of the day, I still consider you a person that I know, a friend, but when we’re going to head to head it’s like a basketball game. I want to win. There’s no holding back. I’m going to play as hard as I can, but you can do that civilly and not have all the heated information association and all of that that happens quite often.

David Craig:
I’m attorney Dave Craig, managing partner and one of the founders of the law firm of Craig, Kelley & Faultless. I’ve represented people who’ve been seriously injured or who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash.
Today, we have Mark Metzger as our guest. Mark is an attorney and has been practicing for over 35 years. He’s a founding partner of Metzger Rosta, a law firm headquartered up in Noblesville. Mark is a trial lawyer, which not everybody can say that. Mark has tried over 120 cases to jury verdict as lead counsel. He does both plaintiff and defense. He mainly does insurance defense work. He does litigation, but he also does personal injury. So he has a unique perspective because he’s been on both sides, both plaintiff, the person who’s injured, and defense, working for the defendants who’ve been sued or their insurance company. He’s also a mediator. He also does arbitration and he also teaches. So, Mark, welcome to the podcast.

Mark Metzger:
Thank you, David.

David Craig:
So I guess let’s start off with just telling since you’ve done both and our audience is mainly non-attorneys, what do you think the difference is as an attorney representing the victims of a crash versus representing the insurance company, if there is a difference?

Mark Metzger:
Now, I think the burden of proof is the difference because as the plaintiff, you have the burden of proof with regard to liability and damages. Defense, we really don’t have to prove anything. We just throw up as much as we can to talk about the liability issues or talk about the damage issues. So, I think the burden of proof is really the biggest issue that separates the two.

David Craig:
How about contact? Normally, I’ve never done defense work. I’ve always done injury. I represent victims of injury cases and oftentimes, especially on the front end of a case, there’s medical bills. They’re worried about wages or working and stuff like that. So there’s, I guess, a lot of client contact in the beginning. I would imagine on the defense there’s probably less of that?

Mark Metzger:
That really depends upon how quickly the case goes to suit, because once it goes to suit, then it’ll be referred. I do some pre-suit litigation, but not a lot. I would say the more is matters that are already in litigation and then we reach out immediately to any new clients and discuss the case with them. But a lot of times, again, I think a plaintiff has the opportunity to be proactive, whereas a defense attorney is reactive. Not always, but most of the time.

David Craig:
And I’ve taught seminars before though, where defense lawyers, especially those who do trucking defense work, and I’ve actually seen their contracts where they say they have to be at the scene of a wreck within so many hours, especially some of these bigger national truck defense firms. And they actually have to have either themselves or they have to have staff at a scene of a wreck. Sometimes, I think they get hired quicker because semi drivers in a wreck call dispatch, dispatch sends an email to their lawyers and then, boom, they’ve got a team out there.

Mark Metzger:
Yeah, emergency response teams from the bigger defense firms that handle the bigger litigated trucking cases, the more serious accidents, with higher limits, and things like that, are usually onsite within 24 to 48 hours, very proactive in that circumstance. But I would say 90 to 95% is more re-active because we’re being notified of a car accident a year and a half or two years later.

David Craig:
I know one of the things that have changed dramatically since I started practicing is what we do on the front end of a case. When I first started, there weren’t all the downloads…you couldn’t go do downloads of cars. There wasn’t the scanning available, the 3D scanning. You would hire an investigator to go out to the scene of a wreck, take some photographs, do some measurements, and maybe you did a crush analysis. But today, it’s completely different. When we get hired, you start off immediately trying to preserve the evidence, sending preservation letters out, finding the vehicles, finding the police, getting the police report, and scanning the scene. At least from the plaintiff’s side, that’s hugely different than when I first started out. How about the defense side?

Mark Metzger:
Yeah, I think the same is true. Provided that you’re given notice if there’s an inspection, and say it’s a total loss valuation and the vehicle’s at IA or somewhere, and we have to go do an inspection, you’ve requested a download. Then I get retained and we can get proactive rather than being re-active, later. Not to toot your horn, but you always do a good job regarding pre-suit information, pre-suit investigation, doing the downloads, sending out the preservation letters, and things like that. So, we get more involved when we have a firm like you than probably with 90 to 95% of all other firms.

David Craig:
It’s kind of scary to me because we get hired sometimes by lawyers who have had a case and they don’t do that front end. Then they try to settle it and then when it doesn’t settle, they call me and say, “Hey Dave, would you help us out with this case?” And I tell you what, and maybe it’s just because we’re getting spoiled, but it’s so easy to preserve evidence. It’s so easy to go out and scan. I had a semi case out in Missouri by Kansas City, years ago, and I remember I had to hire a pilot to fly over the scene to do aerial photographs. Now you go look at Google, you can send out a scan, and do a scan of the scene. But back then, I was always very proactive, but I had a plane fly over, and it turned out that intersection was changed. Had I not done that, I wouldn’t have had a good aerial to be able to prove my case.
It was a semi pulling out of a truck stop area, a rest stop. I think I started doing that in the very beginning just because I was scared I would miss something. I would work with reconstruction early in my career, and the reconstructionist would say, “Did you measure this?” And I’d go, “Oops, no.”

Mark Metzger:
[inaudible]

David Craig:
Yeah, why did you measure? Now the great thing about it is if you go scan it, you have all the measurements forever. 75% of the time it doesn’t matter, but at least that 25% of the time it does. So I would assume you do that on both sides?

Mark Metzger:
Yeah, the same thing. And you see some drone technology in use, too. That’s really good, especially for the environment as an issue, surrounding the corn fields, or whatever it would be that led to it. That is really helpful, but the scanning is just phenomenal what they can do now with 3D scans and all of that.

David Craig:
We did one in Newcastle, a semi, and I didn’t realize there was obstruction of view. It didn’t look like it. It turns out the defense raised an obstruction of view, but luckily we had scanned it and we were able to show to the defense that it wasn’t an issue. And it turned out to be a non-issue, but it could have easily been an issue had we not scanned it.

Mark Metzger:
It’s like a farm field. When the corn’s up, there’s an obstruction. When the corn’s down, it’s not an obstruction. I go out and I look at a field and I see all kinds of corn and say, “Oh, no wonder you couldn’t see.” But you have to look at the circumstances on the date of the incident.

David Craig:
Again, not everybody tries cases. Certainly on the plaintiff side, the side that I’m on, I know lawyers who have never gone to trial, and who’ve told me that they’ve never gone to trial. They’ve either settled their cases, referred their cases out, or they do some other type of law that doesn’t require them to go to trial. I think on the defense side, that’s probably different, because you guys are hired to represent, litigate a case, and go to trial, if you have to. You guys end up, I think, with a lot more trial experience probably than the plaintiff’s side. Let’s talk a little bit about trials, because I don’t think jurors understand what’s involved. So, first of all, does every case that gets filed go to trial?

Mark Metzger:
No, absolutely not. I would say 95% of all cases are resolved either by way of settlement or by way of mediation. The 5% that we’re trying are cases with liability issues or severe damage issues.

David Craig:
And then, the other thing clients always ask me when they hire me in the very beginning is how long does this process take?

Mark Metzger:
Well, that kind of depends on the venue. So, typically, we see a year and a half to bring it to trial, could tweak out a little bit more. Marion County is always the bellwether, because we’re closest to that court and they’re really up in the trial dates. They’re getting them set earlier and trying to be more proactive in their scheduling of everything. So, a year sometimes, but typically a year and a half because all the discovery has to be conducted.

David Craig:
And Indiana has a statute of limitations, so you don’t have to file your lawsuit for two years. Every state has a statute of limitations. It can vary a little bit depending on what state you’re in. Missouri, for example, we’re over there, it’s five years. We don’t tend to hold our cases. We tend to file our cases if they’re bigger because, while our clients are getting better, we’d rather work the case and give the defense what they need to value the case and move it along. But one of the things that we’re limited by is if it’s not a wrongful death case, but if it’s an injury case or a catastrophic injury, we have to wait until the client gets better or we know the client’s as good as they’re going to get.

Mark Metzger:
And I agree with that. But there’s also things that you do that a lot of other firms don’t do with regards to, again, being proactive on your case. Early filing means early discovery, which means you can go out, and you’ve done this on our cases. You go out and you depose the first responders, the police, the fire, the emergency personnel. I’ve had cases with you where you’re taking 10, 12 depositions in the first few months because those people have a much better memory closer to the event than two years later when you pick up and they say, I really don’t remember anything.

David Craig:
Absolutely. I can remember going down, I had a wrongful death semi case down in Kentucky, and I reserved a conference room for a week. And for a week, I just deposed every person that was at the scene, every firefighter, every paramedic, and every police officer. And the reality was that I would say nine out of 10 of those people had nothing really to add. But there was always the one person who overheard a conversation, who saw something, and you never would know because you’ve got all this list of people on a catastrophic on I-65 fatality, there’s all kinds of people there. There’s different police departments. Sometimes I find the smaller police departments, they’re not as active in the investigation. They’re standing around listening or talking to people. So it’s amazing to me how much information you can find. But you’re right, if you wait two years, first of all, those people may go away, but in addition they probably don’t remember much.

Mark Metzger:
Also, during your investigation, I’m sure you’ve run into this where you’re deposing first responders and then you find out that a trooper came on site and did an accident recon, and it’s not noted in the report anywhere. So, if you’re not early in that, you don’t ask the right questions, I don’t think you get the type of information that you can usually get.

David Craig:
I know with us, we always request the 911 calls because the people who call 911 aren’t listed necessarily on the police report. So, they may see it, a wreck on I-65, and then they may just keep going rather than getting stuck there all day. Those people a lot of times have a lot of information, but you don’t get that unless we get the 911 calls. I always hire a private investigator. The private investigator talks to every one of those people who called 911. And again, nine out of 10 may not have a whole lot to say, but that one out of 10 may be critical to your case.

Mark Metzger:
And, just by way of personal experience, I was heading downtown one time and I was on 70, and a truck merged and hit a car. He was trying to go from the middle lane to go north on 65. I witnessed it and I called in, but it wasn’t safe to stop. And about 20, 25 minutes later, trooper calls me back and says, “Hey, were you a witness to this?” “Yes sir, I was.” “What did you see?” I told him. He said, “Well, the truck driver’s here and he’s telling me that the car hit him.” I said, “Absolutely not.” I think that 911 is very important, especially if they’re an eyewitness and they can tell you what they saw.

David Craig:
The other thing that’s time sensitive to me – and one of the reasons we’ve tried to move quickly is – it’s amazing how many wrecks now are caught on video. Either truck dash cams, a lot of trucks have cameras, a lot of cars have cameras. Police have cameras, they have body cameras, and they have car cameras. Down in Tennessee and Indiana all over the country, they’ve got cameras on the highways. In Tennessee, you can request those, you can actually watch them right away. Some states are harder to get. But the reality is, there’s so much on video. With businesses, I don’t know how many times we’ve had different versions, and we’ll go to a Speedway gas station.

Mark Metzger:
Retailers, right?

David Craig:
And it’s like, holy cow, even DoorDash or door cameras on people’s doors will catch it. It’s amazing. A lot of those places don’t keep that stuff very long, especially when they’re not involved in the litigation.

Mark Metzger:
I don’t know if you just saw this, but Ring has just come out with a new procedure that they’re not going to cooperate in investigations voluntarily because they’re getting a lot of feedback from privacy issues. You are going to have to request that information by way of subpoena or otherwise in order to get it from Ring now, but so many times we see those dash cams or the retailer videos or I have a client he says, “I wasn’t speeding,” and then he’s going 70 miles an hour in a 35 and we see him zoom by a Shell.

David Craig:
I’ve done that with adverse weather where the roads were bad and the driver at the time says he is not doing excessive speed, but then we go back and find footage of him flying. Other times we get stuff that’s damaged in our cases and our clients, but I would rather know that on the front end than find that out two years, or a year and a half down the road.

Mark Metzger:
Another thing is to just follow up with regards to the investigation done by the police officer. A lot of times witnesses are identified in there and just making sure you call them and making sure what they said. Because so many times they say, “Well, that’s not what I told the officer. Here’s what I saw.” And so just little things that we do on both sides, I think plaintiff and defense, but some do it better than others.

David Craig:
So one of the things is that, it’s how do you determine value? Clients are always asking me, how do I determine the value of a case? And it’s not like a crystal ball where I can turn it up and all of a sudden there’s the answer. But how do you go about, as a defense lawyer, or doing the plaintiff side, how do you go about valuing cases?

Mark Metzger:
So with regard to any valuation that’s on a serious case, I think the less serious case we have, if you get a soft tissue injury, we know how to evaluate those. On a more serious case, what I do is I round table it with the other attorneys in my office and I’ll send them the facts. If liability is at issue, I might let them know. But, typically I just say, “Absent liability, here’s the injuries. Here’s the billed medical. Here’s the Stanley. Here’s the ongoing nature of the complaints and the effects on the activities of daily living.” Then I kind of let everybody respond because there’s some that are more liberal and there’s some that are more conservative. So I just take that into account and try to get a feeling. The more difficult ones, as you know, are the wrongful death or the quadriplegic, paraplegic cases because maybe you haven’t seen the life care plan, the loss of earnings plan and those are hard to evaluate until we get those types of materials.

David Craig:
With the plaintiff, the injured party, how important is it for the plaintiff lawyer to get the defense lawyer and the insurance carrier the information? We try to update medical records regularly as we get them. We try to forward it to the defense. And it just seems to make sense to me, because, if I was on the defense side, I would want to see the records, I would want to see the documentation. I assume that’s what everybody does, but how important is it for you to get that information?

Mark Metzger:
It’s of utmost importance because my adjuster could not evaluate the case without bills and records. That’s what he or she needs to evaluate the case. If I don’t have that, I can’t take it into account. Sso many times, both as a mediator and a defense attorney, I go in, and the plaintiff has not provided supplementation. This just is devastating at a mediation because we have to shut it down. It used to be probably 10 years ago, adjusters could adjust on the fly. They get some additional information at mediation, they could handle it, bump the reserve, do things like that. Can’t do that anymore. Everything is done prior to the mediation. We send out a notice 30 days before that says, if you have the information, you must provide it to us within two weeks. If you provide it to us at mediation, it will not be considered because no companies that I work for can adjust on the fly anymore or very rarely.

David Craig:
And I think if you’re listening to this and you happen to have an injury claim with somebody, the one thing that I hear a lot is why should we have to give them that? Especially on wrongful death cases. A wrongful death case, they’re upset, you’ve lost a family member, it’s a catastrophic situation to you. And it’s just tough. And then I ask for prior medical records, and the reason I asked for it is that I want to provide it to the defense so they can see it to make sure that this person didn’t have a heart attack or a seizure or whatever. My thought process is let’s get this information, and let’s get it to the defense. So, if I have hospital records, if the person lives and they go to the hospital, let’s get that stuff and give it to the defense so they can evaluate the case.
We do this day in and day out, but for the families, they’re like, “Well, wait a minute. It’s clear my husband or my wife died in this wreck. Why should we have to give them that?” But, I think in fairness, if I was in your shoes and someone lived and there was any question, I would want to see the medical records.

Mark Metzger:
It completes the picture. You’re going to show here is Mr. So-and-so that died and this is his family. Okay, well, what about Mr. So-and-so? I need to know how was he health wise? Was he disabled? Does he have a debilitating illness? I think that is all things that go into the evaluation, not only for me, but for the insurance company as well. So they have to have that prior medical history. If you don’t give it to them, it’s difficult for them to evaluate. You go into litigation and I’m going to get it.

David Craig:
I’ve even had cases where I had a lady, a mom who was dying of cancer, who was coming back from her last vacation with her family and a semi crossed the center line and kills her, her husband, and one of the two kids. So, the family, they were concerned because she had cancer. Again, we were very proactive. I said, “No, as soon I can get that to the defense, the better off we are in my opinion.” Because she still died before she should have and there is still value. But not giving that stuff to somebody, and then having them find that out down the road is not doing anybody any good, not the plaintiff, nor the defense.

Mark Metzger:
From a defense perspective, if I know she has cancer and it’s terminal, then I’m going to be able to talk to a doctor and say, “Okay, this is what she has. How long is she going to live?” If it’s six months or a year, then that severely limits the damages, at least in my opinion with regard to the defense perspective, that would be recoverable compared to if that person were to live another 25 years with the injuries and permanency sustained in the subject motor vehicle accident.

David Craig:
And I would say that it increases the value of every day. You and I would disagree on it, but the point is I guess is okay, what we should be doing is arguing about the impact, the effect, and not trying to not give information to each other.

Mark Metzger:
And weight versus the ability to have that information. The more information that you can provide to me, that I can provide to my adjuster to evaluate the claim, the better off that you are. If we don’t get things, it goes to litigation, I’ve got to go get them myself. We talked a little bit about trial and we talked about what’s going on, but I think the real issue on a defense perspective is what we call nuclear verdicts. Over the last, I would say 15, 20 years, in reported cases over a million dollars in trucking cases, the average verdict was $2.3 million. Within the last few years it’s gone up to $22.3 million, 1000% increase called nuclear verdicts. We have to find a way from the defense perspective to get ahold of you like that. We do not.
I think that’s why there is a very close scrutiny on very serious truck cases with regard to trying to get them resolved, trying to get them resolved early, and probably less cases going to trial in the future depending upon, again, the liability and the damage aspect of it.

David Craig:
I don’t like the word nuclear verdicts as you would imagine. There’s a lot of legislation, a lot of misinformation out there about it, but I will say that especially since COVID, I’ve seen jurors being fairer, I would consider fairer.

Mark Metzger:
More money given to the plaintiff, I understand what fairer means to you.

David Craig:
I think that the verdicts have seemed to be on the higher side I think overall than before. But I think if you look at those, what the defense – or the trucking industry calls, nuclear verdicts I see that, first of all, not all those cases are collected. So some of those verdicts – I just saw an Indiana verdict, which I won’t talk about, but that really wasn’t tried. There wasn’t a defense put up. Because there’s no insurance, there’s no way to pay it. So, sometimes I see verdicts like that. Sometimes I see ones that are set aside or reduced. Then sometimes, – and some of the ones that are really quoted – when you actually go back and pull the transcript, or look at those trials, they’re horrendous cases where there was a trucking company that had five horrible fatalities in a really short period of time, or the driver’s high on drugs and goes out and kills a bunch of people.
And so you are going to see if there’s insurance coverage or if there’s assets available. I think you’re going to see high verdicts on those type of cases. Quite frankly, the best way to reduce big verdicts is number one, run a safe trucking company. You run a safe trucking company, you hire good drivers, reputable drivers. A lot of the big, reputable trucking companies aren’t necessarily the ones that are getting hit with the big giant verdicts. A lot of times it’s the smaller, kind of fly-by-night companies.

Mark Metzger:
Well, there’s a reason for that, though. The bigger companies can pay better, and there is a shortage of truckers. There’s anticipated that there’ll be 160,000 less truckers in 2030 than right now. They just don’t have people to draw from. So what is happening is: the smaller people that can pay less have less experienced drivers, younger drivers, and that leads typically to accidents.

David Craig:
Yeah, I find that the safe trucking companies are getting safer. They’re getting better equipment, they’ve got better technology. They’re monitoring in real time. The drivers, they can monitor, are they sleepy? How are they doing? And the worst trucking companies are getting worse. Unfortunately, I have cases where you have situations where we have what’s called a chameleon carrier. So you have a trucking company that’s really bad, and they can’t get insurance or the federal government’s going to put them out of business. Then, what they do is they change their name and then they go out and – I had one down in North Vernon where they killed two people. This company, they could not get insurance. So the insurance company actually helped them.
They changed their name, told them what they needed to do, and they then carried the minimum insurance which, under the Federal Motor Carrier Safety Regulations is $750,000, and they got minimum coverage. They had the same crappy equipment, they had the same bad drivers. They had one new driver and he’s out driving for them. His equipment was so bad, he pulled it off the side of the road and said, “I’m not driving this. My brakes are not working. I’m done.” And the owner of the company said, “Hey, get back in the truck and drive.” The guy says, “I’m not driving it.” The owner said, “Well, then you sit there until I get there.” The owner drives over, gets in that truck drives it, brakes don’t work, and he kills two people. Now, those kind of cases drive the value up because it’s horrible. It is terrible facts. There’s no person who is going to listen to that and say that is a good fact. On the other hand, a good trucking company would never be in that position.

Mark Metzger:
Yeah, but what that bad truck trucking company does is now flip it to another LLC, open another company, put everything in there, and move everything and try to get that insured. But what happens in that situation is that that company still had insurance at the time of that loss. So say it’s a million, say it’s $2 million, whoever insures that risk is going to have to pay that. And when they pay that, premiums increase, and then when premiums increase, trucking prices increase, everything goes up.

David Craig:
Yeah, I keep looking at the insurance companies who still seem to be making a lot of money. I look at their financial statements and I don’t see a correlation. I think the bad companies carry minimum, they carry 750. The only companies I’ve ever put out of business, one in Iowa and one in Indiana, both were just fly-by-night outfits that had nothing. Their equipment was leveraged. They just had nothing and so we’re not seeing it. I do still say it’s a tough business. It’s tough. Truck drivers work hard to make a living and they keep all the supplies coming to our stores, our offices. So, I respect truckers and I honestly believe the majority of truckers are really caring, safe drivers. I think the majority of trucking companies are good businesses. It’s just unfortunately the bad ones can cause a lot of damage because they’re driving 40 tons.

Mark Metzger:
I agree with that, and I think what’s going to happen if you look at the outlook for 2024 tonnage is supposed to go up 30%. So, we’ve got to find drivers to drive that, and again, you have a shortage. You’re going to have good companies that do a good job. I’ve literally gone to a mom and pop trucking company and their record keeping was in boxes below a shelf that they just threw and I literally had to pick it all out. With what they can do today with electronic record keeping, watching the drivers, everything, it’s just cost prohibitive with regard to a lesser trucking company.

David Craig:
Well, and I think ,that’s probably true with a lot of businesses. You have to figure out a way to run your businesses in an economical manner. And we see mergers and big companies merging, and I think there’s a lot of issues out there. I’m against lifting the speed limits for truckers. A lot of wrecks happen at high speeds. One of the things right now is that trucker drivers have no place to pull over. They don’t have enough rest stops or parking spots, and they’re only allowed to drive so many hours. In adverse weather they’re supposed to get off the roads if it’s icy, but a lot of times, they have no place to park. I know Indiana, I think their legislature just agreed to put some more money into it, but across the country, that’s a problem where these truckers are like, “Where do I pull off?”
And if they pull off the side of the road, they’re a danger to the rest of us. So, there are definitely things in the industry that are challenging. But hiring the right drivers, drug testing, having safety committees, safety policies in your company to make sure that your company is safe: There’s a lot of things that can be done that will help keep verdicts down. And that’s fine with me because we’ve got other areas that we can practice in.

Mark Metzger:
Maintenance of vehicles, vetting of all drivers, tracking technologies, everything like that can be used to be safer on the road.

David Craig:
Like you said before, the education of the drivers, so that now the drivers go through driver training school. I represent a lot of semi drivers who get hit by other semi drivers. They tell me the quality of the drivers have gone downhill because there are some trucking companies that just want to push people through to get their CDL and get them in a truck and they have no experience, or very little experience actually on the road.

Mark Metzger:
And like I talked about before, younger, less experienced, and we’re also seeing a lot of foreign drivers. That can be difficult for the defense because a lot of times when someone hires you, David, you know where they are, or at least you think you do, and you can get ahold of them. I had a case where I had a driver and he no longer worked for the company – It was a couple years ago, sometimes it’s difficult to find those people. And I have had several that have gone back to India or other countries and I just have no contact with them whatsoever.

David Craig:
I think that’s one of the… Go ahead, I’m sorry.

Mark Metzger:
I was going to say, a lot of times when a driver has moved on from a company, he really doesn’t want to participate in litigation so it makes those tasks much more difficult on the defense side.

David Craig:
I’m seeing more foreign drivers. I had a case up in northern Indiana where a semi lost its trailer as it was pulling out of a facility where it got loaded. Pulling out, turning left, and the trailer just comes disconnected from the fifth wheel, and then it loses all power, electricity when it gets disconnected. Unfortunately, my client’s coming down the road at night and he runs into the trailer and gets hurt severely. When I deposed the driver, I had to go down in Texas along the Mexican border. The driver was from Mexico and so the challenge was that he had not driven in cold weather. He had not maintained equipment in cold weather. He had learned how to drive in warm weather, maintain equipment in warm weather.
So, here he was delivering auto parts to Indiana and it turned out he was using the wrong grease on the fifth wheel and it just came disconnected. He did go through driver school in Mexico and got his CDL, which then he was able to get a United States CDL. He had an equivalent in Mexico, but just because you have that CDL doesn’t mean you’re qualified to drive.

Mark Metzger:
Right. But so many times you see employers that say, “What do you want me to do? He had a CDL.” He is qualified to operate a tractor trailer, so they’re willing to hire them, especially if they have a limited cost that they can spend on a driver.

David Craig:
So what’s the biggest challenge for you as a defense lawyer when you have one of these big trucking cases or a big catastrophic case? What’s the biggest challenge for you?

Mark Metzger:
Just that all the information that needs to be gathered is gathered in a timely fashion. We talked about that earlier, but it’s really absolutely necessary that we get out to the vehicle, inspect, download, photograph, everything that needs to be done, witnesses, logs, make sure we have all the record keeping necessary. We can usually anticipate what we’re going to need through litigation process, so we make sure that we protect that all. All the things that you put in your protection letter that you send to me all the time.

David Craig:
So I tried a case over in Fayette County, and the defense lawyer had his hands tied. The insurance company would not allow him to try the case the way he wanted to try it, which I found that out after the trial. It’s a tap, they don’t let him admit fault. When it should’ve admitted fault, but argued causation that the tap didn’t cause the injury, but they don’t let him, so they make him argue liability. We get a direct verdict, then we’d go closing on the damages, the jury pops big, and then the insurance company comes and took all his files and fires him.
It’s a firm that had been doing this work for this company for years, and I saw him later at an open house at my Richmond office. He came in and said that was the best day that had ever happened to him because he was tired of the insurance companies telling him what to do and not letting him try cases. And quite frankly, he would’ve beat me had he been able to try the case the way he wanted to try it. So I see that on smaller cases, I don’t see that on bigger cases. I see the lawyer being very involved in the strategy and involved in how it goes. Is that accurate?

Mark Metzger:
Yeah, I think that’s absolutely accurate. I think the adjusters are more skilled that handle those type of claims. They’re more willing to, what do I say, spend defense dollars to make sure that all the information is thoroughly investigated, dot the I’s cross the T’s, do everything necessary on a trucking case. I see that much more so than on a minimal automobile accident.

David Craig:
I think, from my perspective, I enjoy when I have these bigger cases. Quite frankly, the quality of the lawyers on the defense are better. I get to go against you, and you’re an extraordinarily good lawyer. I get to go with other defense lawyers that are extraordinarily good lawyers, and I don’t mind that. I actually enjoy that better, because you’re dealing with people with experience. And we will disagree, but at the same time, there’s a mutual respect, typically, and you see what everybody’s doing. Everybody’s working the case. There’s not this pettiness that sometimes happens in some of the younger attorneys that don’t have any experience. You fight over little things that have no meaning, but I, quite frankly, like going up against you and the other defense bar that handles these cases.

Mark Metzger:
Yeah, I think that’s absolutely true. You’ve seen it when you have a supervising attorney at a bigger firm and some young guns come on and they want to try to prove their worth. And then you’re fighting unnecessary fights. Fight the battles when you need to fight them. Not everything has to be a battle. It’s called civil litigation. I’ve done seminars on this, and you just try to remain civil. David, you and I do disagree on a lot of things, but I still respect you. At the end of the day, I still consider you a person that I know, a friend, but when we’re going to head to head it’s like a basketball game. I want to win. There’s no holding back. I’m going to play as hard as I can, but you can do that civilly, and not have all the heated information, association and all of that that happens quite often.

David Craig:
The one thing that we all have to remember is that you and I are both very competitive. I always encourage all my young attorneys that work for us to remember that it’s not about us. There’s times when I really would like to go to trial because I know I have a great case, and I know we’re going to really get a giant verdict and we’re going to win, and that competitiveness is there, but my client looks at me and says, “I don’t want to.” It’s about my clients, it’s about our clients. Or it’s about your insurance carrier and there’s times there’s probably cases where you wanted to try and they decided to settle, or maybe you had to go try it and you would’ve preferred to settle. But the same thing with us when we represent families is that I don’t ever force my clients to go to trial. I don’t force my clients to settle.
If they want to go to trial, I’m happy to go to trial. If they want to settle, then I’m happy to settle, because it’s not about me. In the heat of battle sometimes that’s a little challenging, because you do want to win.

Mark Metzger:
But in fairness to you, we mediate a lot of cases with you as the plaintiff’s attorney and myself as a defense attorney, and you have been very honest with me and say, “I think the case is worth this amount,” and we don’t offer that amount, but that you leave it up to your client to make that decision. And it’s their decision to make. But what you see so many times is that plaintiff’s attorneys will get a good offer on a case, their client wants more, and they don’t want to try that case, so a lot of times they’ll end up sending it to you or just discharging the client because they don’t want to go forth with everything that needs to be done for trial purposes.

David Craig:
Quite frankly, I’ve never been a mediator. I went through the mediation training, but I don’t think I have it in me. I give you credit for that and to all the mediators. But I’ve sat there with other plaintiff lawyers and two things shocked me. One was that they didn’t know really what their liens were. They didn’t know what they had to pay back. And two, was that they were asking the mediator to really push settlement on their client because they did not want to go try the case. I just can’t imagine not going into a mediation not knowing all the facts there, or at least doing everything that I can do to learn the facts, whether it’s a lien, medical bills, all that, but in addition, not leaving it up to the client and letting them make that decision.

Mark Metzger:
There’s another attorney, and she’ll say, “For trial, the most essential thing is to prepare, prepare, prepare.” For mediation, the most essential thing is to prepare, prepare, prepare. You have to know what your bills are. You have to know what your expenses are. You have to know what reductions can be taken. How else can you give an informed information to your client for them to make a decision? Because, at the end of the day, the plaintiff wants to know, after attorney fees, after expenses, after payback of my bills, what am I going to get? That’s what they want to know. So I think it’s imperative that you have that information for purposes of mediation.

David Craig:
If both sides have all the information available to them and they go into a mediation, do you find that as a mediator – obviously, there may be a little bit of difference in the value – but is there a range? Do you feel like both lawyers are within a range usually?

Mark Metzger:
So, as a mediator, I’ve been doing this again for 35 years. I get to practice a little bit on the plaintiff, but more so on the defense, so I always look at a case and I evaluate it. Then, I kind of look where everybody else is, and sometimes everybody’s within shouting distance, and other times the plaintiff is really high or the defense is really low, and then I know where my focus has to be as a mediator to try and say, hey, I’ve evaluated this. Sometimes, you just get a sense early on what parties are looking for, and you try to work toward a common goal. Sometimes, it’s just it’s not going to settle. You just have a feeling right away, or you get a sense right away that the plaintiff’s expectations are way too high, and I can’t manage them or help to manage those. The defense is just not offering any money because they think that there’s a tremendous liability, but as a mediator I’m just trying to find some common ground.

David Craig:
So I have utmost respect for you as an attorney, as a person. You do litigation. You’ve built a very successful law firm that’s headquartered up in Noblesville. You’re teaching, you’re mediating, you’re doing some arbitrations. Out of all the stuff you’re doing, what do you enjoy doing the most?

Mark Metzger:
Well, I think I’m getting a little bit older, so I think I enjoy the mediation. I’m unlike you, you say you can’t see yourself doing it, I can see myself doing it. I really enjoy it because it is just trying to find a unique way to get a case settled. Anybody can carry a number, oh, $10,000 in demand, oh, $1,000, but what’s the substance of that? What is important in this case? What I learned really early on is that you have to keep the plaintiff involved. Because in one case, I went back and forth, and I ended up settling the case – or, so I thought… I got a $25,000 offer on it, and I thought that was great, and I took it in. And the whole time that we’ve been negotiating, for three hours, the plaintiff’s been sitting right there listening, listening. And so I brought back the $25,000, and the guy looks at me, he goes, “Oh, no, no, no, no, no, I want $25,000.”
So, even though he was there for three hours didn’t mean that he was necessarily involved. So, you really have to keep the plaintiff involved, and find out what their expectations are. A lot of times as a mediator, they’ll tell you, “I do not want to go to trial. I want to settle this case.” They’ll tell you that, and you know that you want to get it done and maximize the recovery to your client. But some people are dug in, set in their ways, and they want to be righted and they want their day in court. So you have to just read the rooms properly when you’re doing mediation.

David Craig:
Well, this is the podcast After the Crash. Is there anything else that you would like to add that we haven’t talked about or any areas you want to talk about we haven’t talked about?

Mark Metzger:
No, I appreciate the opportunity. I think it’s going to be an interesting 2024. Again, increased tonnage, inexperienced drivers, I think you’re going to see even more litigation in the trucking industry.

David Craig:
This is David Craig, and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website, ckflaw.com. Or if you’d like to talk to me, you can call 1-800-ASK-DAVID. If you would like a guide on what to do after a truck wreck, just pick up my book, Semitruck Wreck: A Guide for Victims and Their Families, which is available on Amazon, or you can download it for free on our website, ckflaw.com.