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I think for anyone who’s successful in the business of defending truck drivers and trucking companies, there’s a few things, first of all, you don’t ever put empathy aside. The moment you start to look at a case only as a case, not as involved people who were involved through mere happenstance, usually, with a catastrophic event that is forever altered lives, you can’t ever lose focus of that.
David Craig – Host:
I’m attorney David Craig, managing partner and one of the founders of the law firm of Craig, Kelley, and Faultless. I’ve represented people who have 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.
David Craig – Host:
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.
David Craig – Host:
Today’s After the Crash guest is Michael Langford. Michael is a very successful trial lawyer. He is very skilled. I had opportunities to go against him multiple times. He was a partner at the Scopelitis law firm, which is a unique firm because all they do really is transportation law. They do all different types of transportation law, only part of it is litigation, but they do all kinds of other stuff. Michael was a partner there. He was a very successful trial lawyer, as well as an appellate lawyer, and handled cases all over the country.
David Craig – Host:
He defended commercial motor vehicle carriers, as well as truck drivers in wrongful death cases and serious injury cases. He was a Fellow of the American College of Trial Lawyers and Chairman of the American College of Transportation Attorneys. Like me on the Plaintiff’s side, he goes around and spoke frequently at defense lawyers’ conferences, or insurance industry conferences, and spoke to lawyers on how to handle these types of cases and what was the best way to protect their clients and their drivers. Michael, welcome to the podcast.
Mike Langford:
Thanks, Dave. It’s my pleasure. It was always a pleasure to litigate with you, against you. Now, I’m happy to talk with our audience a bit about what we both do.
David Craig – Host:
Yeah. Mike has pivoted in his career for a little over a year now. He moved out of the trial and appellate world and has moved into the mediation world. He’s joined a group called the Mediation Group, which is a group that we like to use, which is a bunch of experienced trial lawyers.
David Craig – Host:
The great thing about that group is they have lawyers on all different sides. They have all tons of experience, handing all different types of cases, and they’ve come together and they provide top notch mediation services to the clients. First of all, Michael, how’s that transition? How did that go?
Mike Langford:
It’s going well. Thanks. I have explained to a lot of people now I’m a peacemaker, not an agitator. It’s been a nice move for me. There’s parts about being in the courtroom that I definitely miss, the advocacy part, representing the client, trying to see a case from cradle to grave, from beginning to end, is a fascinating process. I certainly miss aspects of that.
Mike Langford:
There’s a fair amount of stress, as you well know, in trying to provide the most perfect representation you can. Understanding that perfection is always a goal, rarely attainable, but it does create a lot of pressure. I do enjoy the aspect now that I’m involved for a day, maybe sometimes two days with someone’s case trying to help lawyers and their clients to achieve an optimal result which is usually a settlement, not a trial. I’m enjoying the variation and the variety. It’s a different pace, but it’s an enjoyable pace. It’s going well. Thanks.
David Craig – Host:
Mike, as I said in the beginning, I mean, you tried cases all over this country and defended commercial motor vehicle carriers, semi-truck drivers, and other people in the transportation industry. One of the things you were really good at it, you were very good at it, you had a great reputation and I’m kind of curious as to what skillset do you think made you so good. What qualities and what characteristics do you think you brought to the table that helped you be successful at what you did?
What Qualities and Characteristics Make a Successful Defense Attorney for Truck Drivers and Companies?
Mike Langford:
Well, thank you for that. First of all, that’s a high compliment coming from you. I think for anyone who is successful in the business of defending truck drivers and trucking companies, there’s a few things.
Mike Langford:
First of all, you don’t ever put empathy aside. The moment you start to look at a case only as a case and not as involved people who were involved through mere happenstance, usually, with a catastrophic event that is forever altered lives, you can’t ever lose focus of that. The moment you lose focus of that and I’m talking about the people who were injured, the plaintiffs, the people you represent. I’m talking about the truck drivers whose lives have been forever transformed because of perhaps a mistake that they’ve made, and the guilt that they live with.
Mike Langford:
The second thing I would say is that you have to have a game plan. You need to recognize that early on, and you can’t just let things happen. You need to orchestrate the right experts, the right legal, strategic moves, gathering the right facts, and an understanding what are the important points being prepared in either direction.
Mike Langford:
Those are really two of the most important aspects, I think, of being a good defense lawyer for the trucking company is bring your empathy and bring your game plan, and using the sports analogy, making an occasional audible as your facts may change and as the law might change as presented.
David Craig – Host:
One of the things that I always respected about you is that you did bring empathy. I mean you did understand that and you did put together great teams, but one of the other things is that I think is underrated sometimes when I go up against folks is the knowledge.
David Craig – Host:
The commercial motor vehicle world is different than just the car crash world. I mean, there’s different laws, there’s different rules, and there’s different industry standards. I mean, there’s a whole bunch of different things that are applicable and how much knowledge do you think you have to have and how did you accumulate that knowledge over your career?
Mike Langford:
Well, that’s a good point. I learned very early on that a semi-truck crash or commercial motor vehicle crash is not simply a big car crash. I mean, yes, there’s 26,001 pounds plus and that is certainly relevant because of the mass itself can cause a terrific gravity of injuries, but it’s way more complicated because we’re always dealing in a regulated environment.
Mike Langford:
The Department of Transportation Regulations, we often commonly refer to it as the DOT Regs as promulgated by the Federal Motor Carrier Safety Administration, you really do have to know those details. You have to know how a driver gets qualified and then you have to determine was that driver properly qualified. You have to determine the rules of the road. You and I have had some cases over the years involving weather issues and whether or not a commercial motor vehicle driver should be operating the vehicle, given the weather conditions, that’s not present for non-commercial motor vehicle drivers.
Mike Langford:
Certainly the logs and the hours of service is a big component. The telematics and what’s involved with trucks these days and the technology, those are all aspects you just simply don’t have in a common vehicle accident. How did I acquire that information?
Mike Langford:
In combination of having experts teach me, on the job experience, doing a lot of reading, I operated in certain environments, certain controlled environments, semi-trucks, myself on skid pad, so that I could understand what it was like to jackknife or to change gears and what that meant. Just kind of a combination of variety of things that it takes about 30 years to completely figure out.
David Craig – Host:
That’s one thing, I mean as I recall, I think you went right out of law school into the Scopelitis firm. So, your whole career was in that area. I would assume that knowledge becomes cumulative after time.
Mike Langford:
Yes. It really does. In fact, I even law clerked for the Scopelitis firm. So yeah, a year before I graduated from law school, I was acquiring trucking knowledge.
David Craig – Host:
I think that, obviously all the years of experience obviously helped you, the specialized training that you went to. I know I’m the same way. I’ve learned through a lot of experts that I’ve worked with over the years. And as I’ve gotten different types of cases, I’ve learned different areas.
David Craig – Host:
I mean there’s such a broad area of law and there’s so many different types of cases that happen, but I think the folks that this is geared towards are people, average everyday people who may have had the misfortune of having one of these types of wrecks, they’ve been hit by an 18-wheeler, or semi, or another big truck, and they don’t know what to do. They’re trying to figure out what kind of lawyers should I hire.
David Craig – Host:
I think in the commercial motor vehicle world, you have a sophisticated purchaser of legal services. Most trucking companies know what they need, but the average everyday person may never have ever hired a lawyer before in their lives. It’s the first time they’re faced with that. What characteristics do you think that the Plaintiff lawyer, the lawyer representing the victims of a wreck, should have or what should they be looking for?
What Characteristics Should a Lawyer Representing a Victim of a Truck Wreck Should Have?
Mike Langford:
Right. Well, it’s a good question. I’ll say this before I address specifically your question. I mean all of those folks who are thinking about hiring an attorney because they or their loved ones have been injured or killed in an accident, keep in mind that some of the large trucking companies I represented would have several accidents a day.
Mike Langford:
Now, not all of them are catastrophic. Some of them are fender bender kind of minor accidents, but in combination, they would have several accidents a day, be involved in dozens of fatalities a year, and probably daily be involved in an accident where someone is injured. To use your term, because I think it’s a good one, that makes a trucking company like that a sophisticated consumer of legal services, because they’re doing it every single day, determining which lawyers they need to hire, thinking about which experts those lawyers need to hire, and what’s the due diligence they need to do on preservation of items and documents.
Mike Langford:
Now, to your question, so what’s that mean? What that means is to kind of balance things out to make sure that the person hiring legal services is at least on equal footing and they need to hire a lawyer who likewise has a large acumen when it comes to trucking knowledge. I mean, there’s a lot of good attorneys out there who can handle personal injury cases, but you don’t want to hire a medical malpractice lawyer or maybe somebody who specializes in pharmaceutical product liability for a trucking case because they are so factually different.
Mike Langford:
If I was a consumer, meaning a person who was hiring a bodily injury attorney for myself or for a loved one, I would want to know first and foremost how much experience does that attorney have that I’m interviewing. Number two, how much experience do they specifically have in trucking? Number three, what about this particular trucking case makes it extremely important that a trucking lawyer be involved. Number four, I’d want to know what is that game plan. I want to hear what are the things that we need to do because this is a large trucking case.
Mike Langford:
Then, I also would want the lawyer to also provide me some recognizance on the trucking company, perhaps the truck driver, and what is the background on the company and the driver? How might that become relevant to the case? The venue, some venues are particularly important to know for purposes of trucking. Those are some of the things that I would want to know.
Mike Langford:
Then, finally, I would want the trucking lawyer that I was considering hiring to tell me what experts I need in this case and how those experts can bring extra value to my case.
David Craig – Host:
How important is it, if at all, and I agree with all those things, but how important is it, if at all, that they are a successful trial lawyer because not all lawyers, I mean, I know a lot of lawyers. I mean, my law firm and I go to trial regularly, but I know not all law firms do. Is that important? Do you think if you were picking somebody or for a family member or recommending somebody, would you want them to have been a trial lawyer?
Mike Langford:
Absolutely, because here’s the part that probably not a lot of people talk about, hiring a trial lawyer who doesn’t really try cases is like hiring a surgeon who doesn’t really do surgery. You wouldn’t do it because here’s the bottom line that we hope, and as a mediator, now I can doubly say this. We hope that in the end the case settles, but the other side knows. As they’re making a determination on how much to offer for settlement, they know whether or not the threat of trial is real or not.
Mike Langford:
The dirty little secret in certain circles is that there are some so-called trial lawyers that simply don’t try cases. I can promise you, the defense knows that and because the defense knows that, they will value the case accordingly. There is no real chance, they may say, that this case will ever go to trial. In the game of poker, which is sometimes what settlement negotiations are, will come up to a certain level and we know they will eventually take it. However, if the defense knows that the plaintiff attorney who has been hired really does try cases, then the bluff gets called.
Mike Langford:
At a certain point, the trucking company may not want to try this case because the facts are bad. The venues are bad or maybe because the plaintiff’s lawyer just has that good of a reputation. Those are all important components to eventually deciding how much the trucking company will pay or not pay. In short, will the plaintiff attorney actually try a case? If they don’t have a reputation for doing so, you’ll probably get less in settlement.
David Craig – Host:
I think that one of the things I encourage people to do, because people watch this podcast all over the country. They may not be considering, I mean, they may be picking a lawyer in California for all I know.
Mike Langford:
Right.
David Craig – Host:
I think that it’s an extraordinarily important decision, all the things that you mentioned and discussed are very relevant. It’s one of the most important decisions that a family may be making if they’ve lost their husband or their wife and they were the breadwinners of the family, it can have a major impact on their children and their lives going forward. I would encourage people to interview people.
David Craig – Host:
There’s nothing wrong with sitting down and talking to people because not only do I think you have to have all those characteristics, the knowledge, the experience, I guess, one thing we didn’t talk about are the resources, because these aren’t cheap cases and the trial experience in a game plan and you have to talk to the lawyers about that game plan, but you also may be working with this lawyer or this law firm for a significant period of time and you ought to get along with them.
David Craig – Host:
I mean, they ought to be people who you like and who you’re comfortable with, because quite frankly, there’s more involved than just getting to recovery. There’s a bunch of good attorneys out there, but not everybody’s the same. The reality is, and from my perspective if I was recommending somebody, I would say, “Go interview them. Make sure they have all the background, the knowledge, the experience,” but then on top of that, make sure that it’s somebody that you’re comfortable with.
Mike Langford:
Yeah, I think that’s right. Just to add some specifics to some of the comments you made, I mean, it is not unusual for a trucking case like this to be in existence, even with due diligence by everyone. All the attorneys working hard, the court setting, the docket as they need to set it for these cases to be around anywhere from three to five years. You hope not.
Mike Langford:
You hope you can get a case resolved in one to two years, but the truth of the matter is, some cases are so complicated, there can be travel throughout the country, court dockets, and certain venues are crowded. There can be mediations that don’t resolve the matter. There can be appeals. The notion that a case can be around for three to five years is not unusual.
Mike Langford:
First point being, it’s not just a short transaction. It’s not a simple matter where you hire somebody for 30 or 60 days. I mean, you think about the last, if you’ve ever bought a house, you thought that was a long transaction. Well, multiply that by three to five times is how much we’re talking about. Then, secondly, the point you raise is a good one also about having the resources.
Mike Langford:
Large trucking cases require lots of experts. I mean, I could easily list five or six experts that almost every large trucking case cost and that’s even before we get into medical experts as someone is catastrophically injured. The notion that it could cost on the expense side, we’re talking about attorney fees, but expense side, tens of thousands to hundreds of thousands of dollars is not unusual.
Mike Langford:
That’s a good interview question to find, is this something that the law firm is capable of fronting? If they’re not capable of fronting, am I going to get the right experts? I can promise you that large trucking companies that I represented understood that early on, and they reserved accordingly to spend that kind of money on experts.
David Craig – Host:
I think and I see, unfortunately, I get cases that are referred to me by other attorneys that have sat on them thinking that maybe the case would settle and they sat on them for a year or a year and a half. Then, they give them to me and they spent no money on the front end. I’ve tried a case where I think the most money I’ve ever had on a trucking case was close to a quarter of a million in an underride guard case. It was complicated because there were multiple defendants. It was a liability that was based upon landowner and my client and the trucking company and the underride guard.
David Craig – Host:
I mean, there was a whole bunch of different types of experts involved, and if you’re not willing to put that money in and hire the right experts and the best expert, I guarantee you, you’re not going to get a good result because number one, I think the trucking company’s going to know this law firm is not hiring the right people, they’re not much of a threat, or they’re not thinking that they’re not really going to go to trial. Secondly, they just don’t have the resources to do it. I agree. I think that and I see a lot of law firms that don’t have the resources to invest in these type of cases.
Mike Langford:
Yeah. It’s all very true. I was often getting hired within an hour or two after the accident, certainly within 24 hours of the accident. I was hiring experts inside of the 24 hours, maybe 48 hours, 72 hours, but in the first week, it would not be unusual for me to retain maybe as many as five experts because I wanted to get those experts the most relevant evidence. I wanted them to accumulate evidence while it was still fresh, while it was still needed. Everything from skid marks on the roadway to downloading telematics, downloading electronic control modules, or also known as the black box.
Mike Langford:
Sometimes, I would hire human factors’ experts who would take into account the way that a truck driver or perhaps the other driver perceived and reacted to a situation and how they perceived and reacted might depend on weather conditions, or more importantly, lighting conditions. I’d want to make sure that we got them early because lighting conditions can change, artificial lighting, positioning of the moon, other factors that can affect lighting.
Mike Langford:
We want to get all those folks in early so that we can get the best possible physical evidence accumulated. If you wait a year or two, it may be long gone. That’s the advantage of, on your end, a family hiring you early, because if you don’t, you could already be well behind the eight ball.
David Craig – Host:
I think that’s a great point. I mean, I think folks don’t realize that, as you mentioned earlier, this is, unfortunately, a part of the business in the transportation world, but there’s going to be a certain number of wrecks just because of how many vehicles are out there. Certainly, not all of them are caused by the truck drivers.
David Craig – Host:
I mean, there are really good truck drivers out there. I represent some truck drivers have been hit by other truck drivers, but there’s good people. There are good truck drivers. There’s good people out there, but regardless, there’s going to be wrecks and there’s going to be some bad wrecks because of how big these vehicles are and some of them a re going to be caused by the trucking company and the truck drivers, but they’re prepared for that. That’s part of their business and they hire people like you or your firm. They knew ahead of time. I mean, they knew who their lawyers were before their wreck happened.
David Craig – Host:
I think that gives you a great advantage. Let’s talk a little bit about that. I mean, a lot of times it’s called a rapid response team. I know that you were very involved in that, but I don’t think when I talk to my clients and they come in, they have no idea that the trucking companies are already working on the case. I’ve had truck lawyers and claims people at the scene while the scene is still active before my family has even got notified. That does give you all a bit of an advantage. Maybe we can talk about that a little bit. What’s involved in that?
Is It Important to Have a Rapid Response Team After a Crash?
Mike Langford:
Yeah, sure. Well, it’s commonly known as a 24/7 rapid response team. That means the lawyer is available for the trucking company 24 hours a day, 7 days a week. I get so many phone calls in the middle of the night that it would’ve been a complete shock to me if I had gotten a phone call in the middle of the night and actually had something to do with my family. That’s just not typically the way that it worked.
Mike Langford:
My clients knew they could call me anytime of the night and the folks that I engaged, which were field adjusters, they would go out and run investigations or accident reconstructions. I had their phone numbers, their cell phone numbers, 24 hours, 7 days a week. It was not unusual in the middle of the night or any time of day, I could get phone calls. I was dispatching phone calls and depending on this, I’ve taken planes, private planes, to immediately go to a remote scene of an accident. I’ve certainly driven to many accident scenes.
Mike Langford:
Part of it is to talk to the truck driver and to get to the truck driver before anyone else does to be able to counsel the driver. Sometimes, depending on the circumstances, I may also retain a criminal defense attorney. The criminal defense attorney can provide counsel to the driver about giving statements to the police and whether or not this is an interrogation and whether or not they’re under custody. I mean, those are all factors that we have to think of and then preserving evidence.
Mike Langford:
I’ll also say this, as you realize, especially as we approach the summer season, how many of these catastrophic accidents happen in construction zones. That is really pertinent to make sure that all lawyers who are involved in the case are retained early because construction scenes change. They can change simply by cones, by the determination of this lane, not that lane, by the determination of an S-curve as opposed to an L-maneuver.
Mike Langford:
I mean, those are all factors that go into construction and the construction might or might not have been a factor related to the accident, but the mere fact that it happened in a construction zone means that by definition, it’s everchanging and evolving. It’s important to get there early.
Mike Langford:
I would, again, often be at a scene within hours after the accident while I could talk to the police officers, I could see the evidence itself, and I could talk to the drivers. That was always a major advantage. By the time I got the call from the plaintiff’s attorney that they had just been retained by a family, I could be several weeks or several months well into the investigation and I had the information and they didn’t at that point.
David Craig – Host:
How important, I guess, obviously the family of the victims of a semi-truck wreck are behind because they’re dealing with the catastrophic events, but normally I find, I’ve been hired quickly, but not nearly as quickly as you. I’ve been hired, usually, sometimes the quick as I can think of is maybe within a day or two, usually it’s a week or so out.
David Craig – Host:
Usually, there’s somebody in the family who’s looking out for the close family members and saying, “Hey, you ought to do something to preserve the evidence,” but how important is it for these folks, ordinary folks, who have family members who’ve been catastrophically injured or killed to hire a plaintiff lawyer as quickly?
Mike Langford:
Well, it’s important and you use the word preserve and that’s the right word to use because there’s a duty to preserve that exists in the law, but sometimes there’s gray area. I mean, does a truck driver, for instance, have a duty to preserve all the evidence on his phone that would show any app that he or she had open while driving? Well, it depends.
Mike Langford:
Do they have a duty, does the trucking company, have a duty to preserve not just the video of the accident, but video that they may have from a dash cam of the hour leading up to the accident, which might or might not show that this driver was not engaged in safe behavior?
Mike Langford:
I could give countless examples of gray area about where information should or should not be preserved. If the family hires a lawyer early on, that lawyer can send letters and have conversations with the trucking company’s lawyer in which the terms can be negotiated, or they can be expanded as to what’s preserved. If the family does not hire an attorney early on, and maybe months later, then a lot of that evidence has been purged in the ordinary course of business, but that determination was up to the trucking company and the trucking lawyer.
Mike Langford:
Then, when the information is requested many months later, it’s awfully easy to say, and not inappropriately said but nonetheless said, well, that information was purged. We kept what was relevant. Bringing in, if the family brings in a lawyer of their choice, the family and their lawyer get to play a part in the determination of what is and isn’t relevant evidence to be preserved.
David Craig – Host:
We don’t routinely send out preservation letters to everybody that’s involved. Again, and I think your point on the construction zones, I’m seeing more and more. There hasn’t been a year that I can remember in recent history where I haven’t been hired by several people, several different crashes throughout the country that happened in construction zones.
David Craig – Host:
Like you said, the signage is extraordinarily important. Depending on what kind of highway it is, what kind of state, what state it is, I mean, sometimes the companies have videos that they run through mornings, every morning, but sometimes they don’t. We hire people who cloud point scan those drive through the construction zones and cloud point scan the whole construction zone, but it doesn’t do us any good if it’s been changed, if it’s been rotated or altered.
David Craig – Host:
I’ve had, way back in the old days, I used to fly planes over and take photographs because that’s the only technology I had, but I can remember there were so many lawyers that weren’t doing that. We would fly planes over because we never knew when something would change or wouldn’t, whether an easement, the way you’d pull out of a gas station, whether that’s safe or not, it may be changed by the time two years down the road or year and a half down the road, or whenever you get to a point where you’re doing depositions.
David Craig – Host:
I think that you’re absolutely right, both the plaintiff and the defendants, the trucking company, but also the plaintiff and the families want to make sure that they look and see how did this wreck happen. Clients never hire me to say how much money do I get. I’ve never had a client that asked me how much money am I going to get. Their first question to me is, why did this happen? In order to do that, you have to get hired early.
Mike Langford:
The other part of that, while we’re on the subject of construction zone accidents, in that process of figuring out how it happened, you might come to the conclusion that maybe the truck driver wasn’t at fault, or perhaps the truck driver didn’t bear all the fault, and that there might have been a violation of the uniform traffic and motor control, road control. You’ve also got issues with sometimes the subcontractors. You mentioned signage, and there could be signage issues. There could be civil engineering issues.
Mike Langford:
In other words, you might have a situation where you file a lawsuit with multiple defendants, and you wouldn’t know that if you hadn’t got out there early enough to truly inspect the accident scene. You’re talking about the old days with planes, of course, but the new days now that still needs to be done, but it’s usually done with drones.
David Craig – Host:
Right. Absolutely. Capturing the evidence, I mean, what we’re both talking about is preserving the evidence. You used to preserve it for the trucking industry and the trucking companies, motor carriers, the drivers, and I preserve it for my clients, getting out quickly. The way we do that is different.
David Craig – Host:
The technology that’s in these trucks, the technology is in these cars. I mean, I had one out in Iowa where somebody was in a Cadillac, brand new, and it’s amazing how much technology there is. There are computers basically in cars that is recording everything that we’re doing. I assume you’ve seen that change as well.
Truck Wrecks and Technology
Mike Langford:
Absolutely. Most of the major auto manufacturers now have airbags, and when the airbag deploys, it goes back and captures somewhere between five to seven seconds of what the speed was and when the hard break was deployed and with the trucking companies using the black box, also known as the electronic control module, you can capture days of activities and specific to that particular truck and that particular activity, at least up to an hour of activity.
Mike Langford:
It used to be that you’d have to measure skid marks and you’d have to look at yaw marks. There were some laws of physics and still some of that is done as a backup check, but the reality is, there’s so much capturing now inside the vehicle. If that information is preserved, obtained, and downloaded, it can give you the entire story of the accident in a way that just simply didn’t exist 30 years ago.
David Craig – Host:
A lot of trucking companies now are monitoring their drivers and that technology, again, wasn’t there. I mean, we know a lot of-
Mike Langford:
In real time monitoring.
David Craig – Host:
Yeah. We know a lot more by capturing that data than what we ever used to. I had a case down in Kentucky where metal fell off a flatbed and the driver continued to drive. Luckily, there’s a FedEx person who saw the markings on the tractor. They thought they knew who it was. We reached out to them. They said, “No, we had no drivers in that area.” We sued them anyway, because the FedEx person was pretty confident. We got hired quickly, and we were able to get a private investigator to talk to this driver. This driver’s like, “I’m pretty confident it was this truck.”
David Craig – Host:
We sued him and the guy said, “No, the closest had, (this was down in Louisville) was sleeping in Shelbyville, Indiana,” but through the capturing the data, the electronic logs and the GPS system that this trucking company was using, we were actually able to show that, this truck driver was in Kentucky at the time where we would’ve initially we wouldn’t have been able to do that. There is so much more information that’s out there than there ever has been, and it continues to grow.
Mike Langford:
Absolutely. It has continued to grow. I’d say just for simple example, five or six years ago, I was having conversations with clients about whether they should or should not put dash cams in their vehicle, outward facing or inward facing. One of the concerns was what if it shows that our driver was misbehaving, then that could be used against us in litigation.
Mike Langford:
Eventually what happened, that was sort of the claim side, but the safety side won because the safety side in the trucking industry was convinced that having inward facing cameras would alter truck drivers’ behavior to the good and having outward facing cameras would either one, show that the truck driver did not have fault for the accident and so it could be used as a great defense, or two, tell us that the truck driver was at fault and so we wouldn’t have to engage in much guessing. We could just see what we can do to get the case resolved.
Mike Langford:
That was a conversation just as recently as five or six years ago, should we or should we not, here are the pros, and here are the cons. I think, if you look at the top 100 trucking companies in terms of number of trucks, I don’t think it’s an exaggeration to probably say that close to 90% of those trucking companies now have dash cams, either inward facing, outward facing or both and that’s just in the last five years.
David Craig – Host:
Yeah. I mean, not only are we seeing more wrecks captured by dash cams on semi-tractor trailers, but I’m also seeing them on cars. I mean, there are more cars on the road that actually have dash cams on their cars that are capturing it, and it’s amazing to me how many wrecks are captured by surveillance cameras. I mean, again, four or five years ago I didn’t see nearly as many.
David Craig – Host:
Now, the first thing I do when I get hired is send private investigators out to the scene and look for any cameras, not only in the area where the wreck happened, but all the way back and the route that the truck would’ve come for quite a few miles to see if there’s anything captured especially in bad weather or construction zones or whatever, but it’s amazing how many cameras are out there.
Mike Langford:
There really are gas stations, convenience stores, and banks, that are sort of notorious for having outside cameras that are for the purpose of mostly monitoring their premises, but inside the lens of the camera also is an intersection or the roadway. That’s a great point. I’ve often had investigators go out and capture that and the gas station that just happens to be at the intersection where a bad accident happens, but it didn’t happen at the gas station. They have no reason to preserve that information unless they’re specifically requested to do so.
Mike Langford:
Typically, if that’s not caught, then it’s a rolling tape, a rolling video. It’s gone after 24 hours, 48 hours, 72 hours, so another point on preservation and the importance of it.
David Craig – Host:
A wreck happens and we’ve talked about preserving the evidence and what’s involved in that. The next step, the family hires a lawyer. Then, a decision has to be made whether we file a lawsuit or not. Obviously, you, the defense side, the trucking company’s attorney, has already been hired. They’re ahead of the game in their investigation and sometimes there’s only a handful of truck wreck lawyers that defend commercial motor vehicle carriers.
David Craig – Host:
I mean, and there’s lots and lots of lawyers, but I run up against the same law firms around the country that handle these cases. They’re well prepared and equipped to handle these. Do you normally see that the plaintiff lawyer files suit right away? Do they reach out to you, to the trucking attorney to see if they can come up with some kind of agreements? What is your experience?
Mike Langford:
Well, I’ve had every experience. I have had moments where a lawsuit is filed before I’ve ever had a conversation with a lawyer. I’ve had situations where I have typically sent some type of letter of representation to the family. Sometimes, it’s a condolence letter depending on the circumstances, but it’s known that I represent the trucking company and I will often get a phone call from the lawyer saying, “What’s your position on the case? Are you defending it on liability? What are the insurance limits? What do you foresee being the issues?”
Mike Langford:
Then, I will have a similar conversation when I get that call from the lawyer who’s recently been retained by the family. What are the injuries? What’s the medical situation? How do you see liability? I’ve had cases, some really large cases that I’ve been able to settle within months because there was a mutual understanding that the issues were understood enough that there didn’t need to be mountains of litigation and years of discovery in order to reach a mutual understanding. Sometimes their accidents are well understood.
Mike Langford:
It’s a rear end collision that happened at a stop light or a stop sign. It’s my truck driver’s fault. Someone was killed. It’s a matter of determining what is the value of the case as value is defined inside the law, not as value is always defined inside humanity. I’ve had a wide range of situations. I’ve also had moments where the trucking company believes the driver did nothing wrong. We’ve got the evidence to support it. I get the phone call from the lawyer recently retained by the family. I’ll say, I’m really sorry about the accident. We all are sorry about the accident, but this is just one that we’re not going to voluntarily pay money to you.
Mike Langford:
I’ve had every imaginable situation. I have always encouraged those who do plaintiff’s work to pick up the phone and have some phone calls. There could be years of litigation avoided or information learned or at the least information exchanged between the parties so at least there’s an understanding as we go forward in litigation.
David Craig – Host:
I mean, I’ve had cases where we don’t know who the attorney is going to be, and we’re worried about preserving evidence. The first thing we do is send out a preservation letter, and then usually we’ll get a phone call back from whoever the attorney is rather than the trucking company. A lot of times you can work out the agreements on how we’re going to go about downloading, and especially in this day and age, I mean, we have a rapid response team ourselves.
David Craig – Host:
I mean, I know who I’m going to call, what experts I’m going to call, and depending on where this wreck was and I can usually work with a trucking attorney and they’ll have their experts ready, and we’ll go have a mutual time where we go download it and do all the preservation, certainly of the vehicles.
Mike Langford:
That’s a good way to do it. It serves as a bit of a checks and balance as well. Everyone is doing it at the same time. There’s cooperation. The information we get, we will share with you. The information you get, you’ll share with us. Everything that we want to do to our truck, we can do to your car. You want to download my driver’s smartphone. We’ll download your driver’s smartphone.
Mike Langford:
There’s some equaling out that happens in addition to the check and balance of making sure that everything’s sort of on the up and up. I always like doing it that way when we can.
David Craig – Host:
There’s certain law firms we can do that with, and there’s others that are a little less cooperative. So, we file and then the court will let us do those things. Normally, once we file, then we work out the agreement anyways rather than get the court involved.
David Craig – Host:
One of the things when we file and on the plaintiff’s side, I mean, we have to look at where we’re filing it. You alluded to it earlier is that the jurisdiction matters. I mean, sometimes in these trucking cases where the cases filed makes a difference. Again, a lot of lawyers just look at it and say, “Well, where’s the wreck? Where did the wreck happen?” We look at it, before we file, and we try to look and see where is the best place that we can file this lawsuit legitimately.
David Craig – Host:
Then, sometimes, we file in state court. Sometimes, we file in federal court. If we file on state court, usually, we’ll move to federal court. Maybe you can explain to the average person out there listening to this, what’s the difference? How important is the venue?
How Important Is the Court Where You File a Lawsuit?
Mike Langford:
Sure. Well, there’s two ways that venue can be changed, if you will, and the plaintiff gets to choose the venue to begin with because they are the one who files the lawsuit. I’m usually reacting to the venue decision. You have to file in state, well, let me put it this way.
Mike Langford:
You can file on federal court for two reasons: One, that there’s a federal statute or a federal issue at play, and usually in a trucking case, you don’t have that. The other possibility is that there’s diversity of citizenship between the plaintiff and all of the defendants.
Mike Langford:
What that means is that if the plaintiff is from Indiana, the trucking company is from Wisconsin, and the truck driver is from Nevada, then suddenly, you now have three different states, and so you have diversity of citizenship. If the amount in controversy is $75,000 or more, which is usually the case in a trucking case, I can remove the case to federal court, but the moment that a plaintiff and one of the defendants, not all of the defendants, but just one of the defendants have the same citizenship, that’s called destroying diversity of citizenship, and you cannot remove the case to federal court so you remain in state court.
Mike Langford:
Typically, on the defense side, representing trucking companies, we would rather be in federal court than state court. I say, typically. It’s not a rule that always applies, but more often than not, we’d rather be in federal court if we can be. We can go through a process called removal which allows us to take your state court action and actually move it to federal court if we do it within 30 days of the moment that we become aware that it’s one that we can remove to federal court.
Mike Langford:
The reasons why we’d rather be in federal court typically is that the federal judges are a bit more stringent about what comes into trial by way of the rules of evidence, number one. Number two, it’s easier to get summary judgment on claims in federal court.
Mike Langford:
Now, usually in a personal injury or wrongful death case, it’s tough to get summary judgment, but sometimes there are certain kinds of claims that are brought, maybe negligent hiring, negligent retention, negligent entrustment, those are the type of claims, and punitive damages that sometimes we want the file summary judgment on in federal court because of the variations and standards. It’s usually easier to get summary judgment. That’s the reason why we often want to be there.
Mike Langford:
Then, in some federal courts, not all federal courts, in some federal courts, you get a case management plan that sets the order of experts and more often than not, the plaintiffs typically have to disclose their experts first. We like that because we can see who your experts are, and we can react to that. In most state courts, there can be something similar to that, but there’s not as much detail often with the expert reports. In combination, those are the reasons why we’d rather be in federal court than state court.
David Craig – Host:
Do you find that the venue that someone files in, let’s say that we have an option that we can file it in Indiana or maybe we can file it somewhere different, let’s say Chicago, the region, do you find that there’s different values given by juries for the same injury or the same fatality in different places in the country?
Mike Langford:
Yeah, absolutely. There are certain venues that just have a reputation, and it’s not a reputation based on anything other than experience and history that tells all the parties involved in a case, that venue is more likely to deliver a high jury verdict. It can be as simple as there’s an interstate that runs through that venue in which there have been notorious and historically bad accidents to there’s something about the particular demographics of venue that causes higher verdicts.
Mike Langford:
I don’t mean the traditional demographics of ethnicity or anything like that. I’m just talking about demographics of professions, for example, or sort of the makeup of the particular county that causes verdicts to be greater. Sometimes there’s not an explanation. Why is that county produces larger verdicts than that county? We can bring in all the sociologists and psychologists, and there’s not a great answer. It’s just true that they are. All of that matters.
Mike Langford:
If a sophisticated plaintiff’s attorney has it figured out that there are multiple venues in which they could file, then they can file where the accident happened. They can file where any of the particular defendants reside. They can file where the registered agent for the company is. Those are all factors they get to choose. They choose the one that’s best for them. On the defendant’s side, many times we can’t do anything about it because the plaintiff gets to choose the venue.
Mike Langford:
The thing we do about it though is that we realize because they’re in that particular venue, there’s more value to the case and we will offer more to settle the case because we are less likely to want to go to trial because of the reputation based on history of that venue as a difficult venue for defendants.
David Craig – Host:
Yeah. That goes back to what we were talking about and picking a lawyer who understands trials and litigation. If you assume you’re going to settle the case, you may not look at those things, but my strategy always has been assume I’m going to try the case and then most of the time the cases settle, but you have to make smart decisions on where to file the case and who to bring into the case certainly is an important decision early on.
David Craig – Host:
Now, you mentioned that a trial can last or litigation can last for an extended period of time because in the beginning, we exchange a lot of written materials and documents. Then, we go through a phase called depositions, and depositions can occur all over the country, depending, again, these trucking companies aren’t always located where the wreck happens. You’re going to their offices or the city where they’re headquarters are. I’ve traveled all.
David Craig – Host:
I mean, I’ve been down with you, down in Texas. I mean, I don’t know how many depositions I’ve taken in Laredo. I’ve lost count. I mean I’ve flown down there so many times and done depositions because a lot of the drivers are coming across the border, bringing in parts from automobile parts or whatever and that just happened to be where the drivers, that’s where the trucking companies will set up the depositions.
Mike Langford:
I’ll also throw in one other factor is that, in every trucking case, there is usually goods being transported. The goods came from a shipper. There’s also something known as a transportation broker. The broker is often a third party who marries together the trucking company and the shipper. Sometimes, the brokers have a major role. Sometimes they don’t, in choosing who the trucking company is, the routes that are run, the particular loads that were taken. The shipper sometimes, sometimes not, has a role in that as well.
Mike Langford:
I’ve had some cases involving flatbed carriers where there’s heavy equipment being hauled on a flatbed and the shipper and/or the broker was the one that determined what type of trailer that was used, what kind of goods were transported on the flatbed, and how it was configured. Then, perhaps there was a rollover that was caused not just by the law of physics, but by the law of physics that were created by the shipper and the broker decisions.
Mike Langford:
That’s a long way of getting to this point. Then, we talk about depositions. Of course the depositions take place with the trucking companies, but sometimes there are these tangential or not so tangential companies like shippers and brokers that get involved as well.
David Craig – Host:
That’s a great point. I mean, because that’s, again, another analysis that the family’s lawyers has to go through is who do we go after? Again, I see cases that are referred to me where they say, “Well, the shipper.” It’s really tough. There’s some case law out there that makes it tough to go after the shippers, but it doesn’t make it impossible.
David Craig – Host:
You want to look and see how involved, whether or not the load, who loaded it, whether it was concealed, where was the driver at when the load was put on. Could they see the defect that causes the load to fall off, for example, in a case like that. There’s so many different things that you want to look at and the documentation on those, the agreements between the parties is so important sometimes.
David Craig – Host:
Those are things that lawyers look at. Also, obviously, if I’m dealing with the trucking company, the trucking company has an incentive. If they believe it was someone else’s fault and to share that information as well, because they want to shift the blame to the shipper.
David Craig – Host:
Now, the problem with logistics companies are a lot of them don’t have much insurance. I mean, the bigger ones do, but you’ve got everybody out there. I mean, it’s amazing. You go on YouTube and watch, if you want to be entertained, look at the folks who are doing logistics.
Mike Langford:
Right. Even then, sometimes it gets doubly complicated because who’s the motor carrier? The shipper thought that they hired a motor carrier, but turns out the motor carrier was a broker who brokered the load to a different motor carrier and then sometimes you get involved in something called trip leases or back haul situations where there are some of these truck drivers that are driving for multiple trucking companies and changing the placards as they go. Sometimes, the simple question of which company is responsible. It’s not easy and it becomes a fairly involved legal analysis, not just a factual one.
David Craig – Host:
Absolutely. Again, a personal injury lawyer who does car crashes may not know those things. The trucking company attorneys do because they’re used to looking at those documents and they’re used to trying to sort that out, but we have a lot more dec actions nowadays than I used to have on which coverage applies and who is the motor carrier.
Mike Langford:
Right. A lot of these, we call them owner operators, independent contractors, where they own their own truck. They have their own insurance policy. There’s something called non-trucking liability or sometimes referred to as bobtail insurance. Let’s use an example, a truck driver, he’s done with his shift. He goes home, realizes that he forgot to turn his paperwork in. He drives back to the terminal bobtail, has a bad accident on the way. Let’s say, it’s the truck driver’s fault, whose insurance is at play there?
Mike Langford:
The trucking company? Was he driving on behalf of the trucking company? He was just trying to turn in the paperwork. He was not dispatched. He was not on a specific route. He was not hauling any goods. Is it his own insurance? Which is at play? Depends on the policy. Depends on the venue. Depends on the facts.
David Craig – Host:
You get the documentation. You get all the right parties in play. You do the written discovery. You do the depositions. Now, it comes time to, in most jurisdictions, a mediation is encouraged. Tell us a little bit about what mediation is and what the roles of both lawyers are.
What Is Mediation and What Are the Roles of Both Lawyers?
Mike Langford:
Well, mediation, sometimes you’ll hear the term settlement conference. They’re basically synonymous. A mediation or a settlement conference is a process by which all the parties come together in a same place. Pre-covid, it was almost always in a location typically, the mediator’s office.
Mike Langford:
These days, maybe half of the time, it’s through a Zoom conference, but the bottom line is a neutral mediator is hired who will help with the logistics of planning the time, the place, whether it’s Zoom or not, the parties come together. It’s for the purpose of seeing if through the art of advocacy and compromise, whether or not they can reach a settlement of a case.
Mike Langford:
Now, you can always settle a case during the middle of a case with lawyers having conversations back and forth, but the nice part about mediation is that for those hours or those days, everyone is not focused on anything else in their life, not their other cases, but simply your case. During this mediation process, the mediator will listen to the arguments from both sides. The mediator’s role is not to be a judge. It’s not to be an arbitrator. It’s not to make decisions, but to listen to both sides and then maybe provide a little pushback.
Mike Langford:
I understand what you’re saying, but could the jury see it differently? I understand that you think you’re going to win, but for these reasons, could you lose the case? I understand that you think that the value of your claim is this, but might you have, for example, some issues with proving up all your lost wages. Those are some things the mediator might say over in the plaintiff’s room.
Mike Langford:
In the defense room, you might go over there and say, “Look, I think you’re going to have problems with your truck driver. I’m not sure the jury’s going to necessarily like them. I think the plaintiff is very likable. I think these are really catastrophic injuries.”
Mike Langford:
Depending on the facts of the particular case, the mediator will talk about those issues, talk about why one party who may consider taking a little bit less, the other side, the defendant who really doesn’t want to pay much money, and talk to them about why they need to pay more and through compromise with going back and forth with one party probably starting a little too high, another party starting a little too low, going back and forth through negotiations, and eventually get to the point where the amount has been narrowed enough that it simply makes sense for both sides to settle the case, finding that number that neither side is typically excited about, but that they both can live with. The most important part of mediation of all is that the parties are in control of the case.
Mike Langford:
Once you go to trial, the judge determines what the evidence is that the jury gets to hear, the jury determines what your case is worth or not worth, and the most nerve-racking time for anyone who does trial work is when the jury is behind the walls in another room, and you are completely uninvolved. You don’t get to put facts forth. You don’t get to put evidence forth. You don’t get to cross examine. You don’t get to make strategic decisions and closing argument. That’s all done.
Mike Langford:
The only thing left is those strangers who are involved in the jury process determining what your case is worth. That’s nerve-racking, but you don’t have control. Back to mediation, during mediation, you have complete control. No one can tell you whether to settle your case or not. No one can tell you how much to settle your case for, but hopefully through the mediation process, the parties can learn what the case should settle for given all of the competing interests of the case.
David Craig – Host:
You obviously went through a lot of mediations as a defense lawyer, as somebody who defended the insurance companies and the trucking companies, and now you’re a mediator. I’m curious, has your perspective of mediations changed since you’ve changed roles?
Mike Langford:
Well, it has changed. Well, first of all, and I don’t say this to put anyone down, but I’ll just tell you, it’s surprising. I’m surprised that there are attorneys who aren’t super prepared for mediation. They don’t provide the mediator with a lot of information before the mediation and that they have not captured all the information and an understanding of the law that they should.
Mike Langford:
I figured because that’s what I was doing in my room that everyone else was as well. I’ve learned as a mediator that there is not always a fair balance of good advocacy and that surprises me a little bit, but my role as a mediator, isn’t to balance things out. My role isn’t to make things fair. My role is to try to help settle the case. Sometimes, I think that the case is settled for what they settle for because one side had so much better advocacy than the other and they sort of overwhelm the side with them.
Mike Langford:
Even though we talk about mediation as if it’s a peacemaking process by which everyone has equal information and equal advocacy, and it all works out just fine, the fact of the matter is it’s still very much a process of advocacy. Parties are still trying to win at mediation. More often than not, one side does win more than the other side. It’s usually because of preparation and advocacy and the underlying facts, but I think I probably, from the outside looking in, figured that everyone was advocating equally. I now understand as a mediator, that really isn’t the case.
David Craig – Host:
Yeah. I recognized that the first time I represented a plaintiff in a severe wreck, and there were multiple plaintiff lawyers that represented different people. I thought, we do settlement videos. We do on a big case, you do a whole lot of preparation. I went in and one of the plaintiff lawyers asked to talk to me and I went into their room and there wasn’t even a breakdown of the liens, I mean, just stuff that I just took for granted that I thought, “Well, how can you even show up if you can’t tell your client exactly how much money they’re going to get?”
David Craig – Host:
Then, I learned from that. The sad thing was that, my role was as an advocate for my client, it was to maximize the recovery for my client. The client actually happened to be friends with the person who was represented by someone else.
David Craig – Host:
I went back to my client and I said, “Here’s what I think that you’re entitled to of this limit. There’s only so much money to go around, but I think that I can get you more, but this is your friend, and it’s going to come out of your friend’s pocket. You tell me what you want me to do. Do you want me to just help work with this other lawyer and your friend and let’s just try to figure out what’s fair, or do you want me to advocate and get as much money for you as I can because this other lawyer is not going to go to trial because this other lawyer is not even prepared for mediation.”
David Craig – Host:
My client said, “No, maximize my recovery.” So, that’s what I did. We drew a really hard line knowing that there’s no way that other lawyer is not going to eventually cave in, which he did. That was a rude awakening to me. I was like, “Whoa!” Gosh, on a big case. There was definitely a difference in preparation.
Mike Langford:
Right. The other thing that’s interesting, as a lawyer, the only attorney-client privilege conversations I’m ever involved in are involving myself and my client. That’s what I knew about attorney-client conversations. I find it fascinating on the mediator side. I’m in the room, just with the lawyer and the lawyer’s client and myself, I’m allowed under the rules of mediation to be present during those attorney-client privilege communications.
Mike Langford:
I see an absolute difference in the way that certain lawyers handle their clients. Handle is probably not the right word. Communicate is probably a better word, how they communicate and part of it is, how much of a relationship have they built up beforehand? I have seen some fascinating and awesome lawyering, but in the end, I know it’s because the lawyer has developed such a relationship with the client that they can just talk at a different level in front of me. It’s almost, it’s a little cryptic, but there’s an understanding.
Mike Langford:
Do you remember, when we talked about this issue with the lien? Do you remember when we talked about this issue with this difficult deposition testimony that you gave? The good lawyers have the difficult conversations with their clients before the mediation. There’s a lot of lawyers that have never wanted to have a difficult conversation with their client ever before mediation. They leave it all to the mediator to sift out. That way, it becomes the mediator’s fault to deliver the bad, tough news. That’s another thing that I’ve learned in mediation is that some lawyers kind of hide the bad news until the mediation. That’s not the time to hide the bad news.
David Craig – Host:
I agree. I mean, I’ve seen other plaintiff lawyers ask the mediator to go in and tell them that this is a good settlement, and I was sitting in the room and I’m like, “They can’t really tell him that.” The lawyer didn’t want to have this conversation with the client and didn’t have the relationship of trust for the client. He couldn’t tell the client whether it was a good or bad settlement.
David Craig – Host:
I mean, I look at kind of mediation as, I enjoy it because I get to spend a lot of time with my clients and I get to spend a lot of time preparing them. Then, I get to spend a lot of time in a room with them. I look at it as more of an empowerment. I’m trying to empower my client to make the right decision. If my client wants to settle, even if I think the number is low, I settle. If my client wants to go to trial, even though I think the client’s asking for a little bit more than maybe I think is fair, I will go to trial. I work for my client. I just want to make sure my client knows the good and the bad and is empowered to make the right decision.
Mike Langford:
As a mediator, that’s what we want to help you do but sometimes lawyers have it all figured out. The mediator’s role is to get out of the way and let the lawyer have that conversation with the client. The mediations I have to work the hardest on are where the lawyers haven’t done a lot of hard work before the mediation ever started.
David Craig – Host:
You mentioned that mediation takes away the uncertainty of a trial. Certainly, you and I both tried enough cases that we cannot predict with any certainty what’s going to happen. We can go based on experience. I’ve settled cases. I’ve had the defense lawyers settle after we picked the jury. I’ve had the defense lawyers come to me and settle after the trial has proceeded.
David Craig – Host:
The jurors, I mean, depending on what jury you end up with, has a lot to do with how you think the ultimate outcome. I always tell my clients that I know the folks in my office really well. I mean, I’ve worked with most of these people for 20 plus years. I know who’s conservative. I know who’s liberal, but if I ask them to give me a value in a case and write it down without talking, after I tell them the facts, I can’t guess the value they will give me.
David Craig – Host:
I can’t guess on my own co-workers what number they will give me. I certainly can’t guess with any certainty what six strangers or depending on what jurisdiction I’m in, what they’re going to give me.
Mike Langford:
Yeah, that’s right. That’s why among other reasons, most cases settle because of that great uncertainty. I mean, look, we can get a jury verdict right if we’re given a lot of latitude. I mean, in certain cases, I can tell you the value is between $5 to $10 million, but that’s a lot of latitude. Some cases I can tell you, it’s not worth less than $50,000 and it’s worth no more than $200,000, but even those kinds of estimates inside that is a wide range that we have to give because of all those uncertainties.
Mike Langford:
Once we understand what the range of verdicts are, then that allows us, and settlement is not about anybody’s best day or anybody’s worst day. It’s about trying to come inside the verdicts and trying to find that reasonable compromise. That’s why settlement makes sense. More often than not, verdicts are there’s a winner and there’s a loser. Somebody’s happy and somebody’s sad.
Mike Langford:
With settlements, everyone’s generally okay. It kind of depends on your level of risk tolerance, but back to a point you made earlier for some people, this could be the biggest financial transaction of their life because there is so much involved. It’s the support of a family when you’re dealing with a situation where maybe the person who was the primary financial support is deceased and the children are still young.
Mike Langford:
I mean, I cannot imagine that the burden that everybody bears in a situation of making sure that a smart financial transaction is made, and that’s only understood if you know what the verdict values are, but then you have to sort of throw away the possibilities and deal with the probabilities and that’s where you have to have a lot of experience with a lawyer, with someone like you, Dave.
David Craig – Host:
I guess I enjoy trials personally more than I do mediations. Mediations can be very frustrating to me.
Mike Langford:
As a mediator, I’ll tell you the same thing. I think I enjoy trials more than I enjoy mediations, too.
David Craig – Host:
Nothing makes me happier than a client reaching the decision they’re comfortable with, whether that’s settlement or whether that’s at trial. I put a lot more faith in the juries than what some mediators do and what some defense lawyers do, or some plaintiff lawyers do.
David Craig – Host:
I genuinely believe jurors try to do it right. I believe, like you said, I mean, there may be a range here, but on some of these catastrophic semi cases, I mean, I’ve walked out of the tens of millions before because it was easy because I knew that the result was going to be large. Maybe I didn’t know exactly how much, whether it’s going to be $10 million or $20 million or $15 million, but you knew that your client was going to be taken care of no matter what.
David Craig – Host:
It’s a lot easier to roll a dice on a case like that than it is on a case where your client may be found at fault. Your client may be 51% of fault in Indiana and lose and get nothing and that’s a lot tougher call.
Mike Langford:
Despite having catastrophic injuries.
David Craig – Host:
Absolutely.
Mike Langford:
Those have to be the toughest from the plaintiff’s side. Those cases where the person has been devastatingly injured and yet there is a real possibility that they may walk away from nothing. Maybe the trucking company has offered 30% of the full value of the case, which doesn’t seem fair, but you have to juxtapose that against the possibility of zero. That’s a tough dilemma for you.
David Craig – Host:
Absolutely. We do things and I assume the defense does as well, but we do focus groups. I mean, we run focus groups. I’m doing one Saturday. We run a lot of focus groups. We try to look at what issues that we have. We try to find for folks that are listening. A focus group is where you get panels of people together and you do it different ways, but you kind of present your evidence to see what independent people will do, and you watch them deliberate.
David Craig – Host:
Even that, you could increase your odds of getting a decent result by listening to what people think of your issues, but at the same time on the tough, tough cases where there’s comparative fault involved, and you’re in a state like Indiana, that is tough. You’re absolutely right.
David Craig – Host:
One of the things I want to end with is just your mediation practice now. I know, I would think and maybe I’m wrong, but I would think with all your experience and knowledge in the trucking industry that would make you a pretty popular mediator. Because, again, just like we talked about when you’re hiring a plaintiff lawyer, you need a lawyer who has the experience and knowledge and resources to handle these cases.
David Craig – Host:
The trucking company certainly is going to pick the lawyers that have the knowledge and the ability and skillset to handle these cases, but if you don’t have a mediator who doesn’t really understand trucking, I think that’s a disadvantage.
Mike Langford:
Yeah. Well, thank you. Well, I’ve been getting retained on a lot of trucking mediations. I think a mediator who understands trucking, I mean, first of all, it allows, quick study, if you come to me and you say, “We did a download of an electronic control module. This is what it showed.” I know what that means. If you tell me this is a case in which we think the broker has liability, and you tell me why I can help evaluate that for you and your client and determine whether that means that this is a settlement number you might want to consider or not, issues, a venue who your experts are.
Mike Langford:
We haven’t talked that much about the medical side, but there’s something called a life care plan and understanding which life care plans have a lot of substance and which ones don’t. I mean, that all matters. Then, another issue is insurance. The insurance issues can get very tricky, not just whose insurance has to pay, but also trucking companies have gotten pretty sophisticated because there’s just so many tens of millions of dollars involved in insurance money and premiums.
Mike Langford:
They’ve gotten sophisticated. They have captive insurance companies. They have deductibles. They have self-insured retention. Sometimes their DOT is self-insured. Sometimes they have something called a corridor deductible which is kind of a deductible above their primary insurance. There’s excess coverage. There’s different layers of excess coverage. Sometimes there’s infighting among the insurance companies about whether certain money should be paid or not. Sometimes insurance companies go into receiverships and you’re dealing with guarantee funds.
Mike Langford:
There can be a very complicated, a web of issues when it comes to these trucking company cases, everything from who your experts are to what your insurance is. Having a mediator that has a fair amount of knowledge coming into the mediation about how that web plays out seems to matter to a lot of folks.
David Craig – Host:
I think for the people that are listening to this that are thinking, “Oh my gosh, we have been involved in this catastrophic event with a semi, why would we want to hire a lawyer who used to defend these folks and made his whole living, his whole career, was based upon defending these folks.” I get clients that ask me stuff like that. Who is the mediator?
David Craig – Host:
I mean, I think it’s important who the mediator is. I would just say to those folks that first of all, the mediator has no power to make you do anything. That’s important, but secondly, Mike has sat in with claims people. Mike has sat in with trucking companies. Mike knows what’s important to them. I don’t. I’ve never sat in a room where I was giving strategy or advice to a trucking company.
David Craig – Host:
I never heard from them what evidence is important to them, what’s persuasive to them. I think having somebody that knows that, who has had those tough conversations and who has personal experience, is far better, personally, than me as a plaintiff lawyer, because as a plaintiff lawyer, if you put me as a mediator in a room with the trucking companies and their adjusters, we don’t talk the same language.
David Craig – Host:
I would find that a disadvantage. The average person would probably think, “Well, hiring a guy like me would be better for their case,” when in fact I would argue that hiring a person like you with your experience is far better than a plaintiff lawyer.
Mike Langford:
Well, the language that does get spoken inside the trucking and the insurance groups that I would be mediating with is risk management. To them, they’re making a business decision. I’m not here to say that a lot of the trucking claims folks aren’t empathetic, that they don’t feel for the injuries and damages that have been created sometimes by their own truck drivers. They are, but as part of what they’re doing in their everyday job is that they are managing risk.
Mike Langford:
As a mediator, what I am typically talking to them is about the language of risk. If you go to trial, you have this risk. If you only make this kind of settlement offer, you have this kind of risk. If you decide to push on that issue, you have this kind of risk. It’s all about risk and then talking to them about the reward of maybe making more money, making more of a settlement offer that they can help mitigate that risk. That’s the language that gets talked about in that room and one that I’m pretty used to talking about for three decades now.
David Craig – Host:
Yeah. Well, Mike, I appreciate you taking the time to be on here. Is there anything else that you would like to add, or do you think is important for the average everyday person that’s out there looking at, trying to protect their family?
Mike Langford:
Well, at the risk of perhaps of repeating myself just a little bit, I think it’s really important for someone who’s interested in protecting their own interests or their family to, number one, hire an attorney early. I know there’s a lot of folks out there that say, “Well, look, if you hire an attorney too quickly, will that make you look greedy?” No, it won’t make you look greedy. It’ll make you look smart.
Mike Langford:
Second, challenge the attorneys that you’re interviewing and I do really suggest you talk to more than one attorney before you make your decision. Find out about their experience. Find out about their game plan. Find out how they’re going to get you from this horrible point that you’re in at the beginning of a case to what will hopefully be a successful outcome, as successful as the law and the facts will allow. Just stay informed. You want to make sure that the attorney is on top of his or her game and the way to do that is having regular communication.
Mike Langford:
I know especially when you’re dealing with serious injury or death, it’s awfully easy to say, I hired my lawyer. My lawyer is taking care of it. I think it’s important that it be an ongoing conversation with you and your lawyer and that you don’t just go from hiring a lawyer to showing up for a deposition, showing up into a mediation, showing up at trial and say, “That’s all I need to do,” and that it has to be an ongoing experience for you.
Mike Langford:
None of it is necessarily a major pleasure. I get that, but it is as we’ve talked about one of the most important things you may ever deal with in your entire life. Choose wisely. Make sure that you are protecting yourself and protecting your family by staying engaged in the process.
David Craig – Host:
Great. I think that’s great advice. I think one of the nice things about COVID is that everyone is using zoom.
Mike Langford:
Right.
David Craig – Host:
There’s really no excuse for a law firm that’s representing you to not have regular Zoom meetings. It may not be easy to get into an office, but boy, it sure is easy to do Zooms. There’s really no excuse for a lawyer not to have updates with you on a regular ongoing basis through Zoom. If I were a client, I would demand that.
Mike Langford:
Me too. Me too.
David Craig – Host:
All right, Mike. Thank you very much. I appreciate it.
Mike Langford:
Thank you, Dave.
