My response to the Trucking Industry Defense Association’s article about me

The Trucking Industry Defense Association recently posted an article analyzing my recent $13.2 million verdict against Covenant Transport in federal court in Phoenix. http://bit.ly/GVupni It wrote “DO NOT underestimate the importance of a lawyer like Leizerman to produce the mega-verdict.  There are about 12-15 lawyers around the country that are the best of the best in transportation related verdicts.  After all it had only been a few days prior to the Arizona verdict that Leizerman received a $5.2 million verdict in a BROKER LIABILITY case in Oregon.”

Wow! Thank you for the compliment, TIDA. And thanks to Chris Stombaugh, who represented the father in the case, and Ken Levinson, who assisted me at trial.

I would like to respond to the analysis of trucking defense lawyer Charles Carr, who believes the verdict was the result of the following. His analysis is in red and my commentary in black.

1.        The jury was unaware of any settlement to the wife and children and probably felt that this was the only award that would ever be entered for the wrongful death of Mr. Bachrach.  At least half the states in the United States don’t have wrongful death statutes that provide the right for a parent to recover for loss of consortium of an emancipated, married, adult child with children.  In those states that do allow for parental loss of consortium, the vast majority of the parents’ claims for loss of consortium are settled when the decedent’s widow and children settles her/his claim.  A trial forced by the parents only is almost unheard of.

I thoroughly support telling the jury EVERYTHING; how much insurance, who else has settled, the effect of finding less than 50% fault, the effect of non-party apportionment, whether there will be a second bifurcated part of the trial for punitive damages—everything. But this is not permitted in our legal system.  I did stress the legal obligation of the jury to only consider the claim before them. In jury selection, one potential juror asked about whether the widow also had made a claim. I told her that she would not be able to consider that one way or another and asked if that would create problems with her doing her job—evaluating the loss of love of an adult child. This verdict reflected the value of the loss of love between the parents and son.

 2.      Because of the fact that liability was admitted, the trial was short… less than 2 days.  Thus, it was less than 48 hours between the emotional, sobbing breakdown by two potential jurors and the time when the jury deliberated and returned a verdict.  Often, the longer a case takes to try, the more likely it is that a jury will be able to become desensitized to the hyper-emotions they may feel in the beginning of a wrongful death case.

Perhaps ironically, I actually wanted a much longer trial. I wanted to put on a representative from Covenant. I wanted to put on facts that before this job, another trucking company fired the driver for falsifying his application. I wanted to put on evidence that both team drivers had their Commercial Drivers License for less than a year. I wanted to put on evidence that the driver fell asleep at the wheel after driving over his hours of service. But, Covenant’s lawyers won all the arguments to keep this information out. It was necessary for me to be fluid and adapt to the ever-changing nature of the case—from the Court’s decision to keep out punitive damages, to Covenant’s admission of liability relatively late in the case which completely changed the case, to the inability to argue any of the facts of the collision. It is difficult for plaintiff and defense to foresee what the strategic effect each of these events has.

Your point is an interesting one. Do you believe there would have been a lower verdict had the jury heard that the driver likely fell asleep while over his hours of service because that would have made the trial last longer? I don’t believe that the length of trial matters as long as the jury doesn’t get bored. I do believe in streamlining trials and getting witnesses on and off the stand in a way that keeps the juror’s interest.

3.        Plaintiff’s counsel was particularly effective at developing a “conversational toned,” emotion producing exchange with the jury.  You don’t get a feel for Michael Leizerman’s effectiveness by looking at his web site.  The website has the look of a “t.v. lawyer’s” infomercials.  Mr. Leizerman’s dress before the jury could be best described as “frumpy.”  He is diminutive in size and was allowed by the federal judge to “stray from the podium” and get close enough to the jury that he could have reached out and touched them.  This type of approach is often strongly discouraged and perhaps even forbidden in federal court.

I have worked hard over the years to drop condescending “lawyer talk” and adopt a conversational tone. I often wear slacks and a sport coat, instead of a suit, to also minimize barriers between myself and the jury.  But, somebody commented about that recently, so I actually wore a suit, white shirt and nice tie for each day of this trial.   Perhaps my love of pizza and ice cream consumption can account for said “frumpiness.”

I understand the “t.v. lawyer” comment. Some lawyers advertise but don’t work up cases. I am proud of my website and the fact that I am a lawyer who markets and actually takes cases to trial.

Defense counsel and I both strayed from the podium. I did not get any closer to the jury than the defense lawyer. In any event, I don’t believe that these things ultimately make a difference with the jury. Judge King was very fair in the way he conducted the trial and also was very strict. He gave only ten minutes of lawyer-conducted questioning of the potential jury panel, over my repeated requests for more time. He cut me off at 10 minutes despite the fact that I only had one more question to ask. Anybody watching this trial saw that the judge kept control of his courtroom, and that all the lawyers acted quite professionally.

4.         Plaintiff’s counsel had some particularly effective and unique approaches to push the jury to consider a very large award.  The Arizona Bar Association’s website refers to loss of consortium as:  “loss or harm suffered by each person based on his/her relationship with the family member who died.”   The jury in this case was somehow required to put a “value” on what that loss was worth.  Mr. Leizerman spoke of the “value” of Steve Nash to the Phoenix Suns basketball team and the millions of dollars he was paid just to play basketball.  He referred to paintings in the Louvre that had a value of $100 million.  How could a jury think the value of a parent’s relationship with a child could be worth less than $1 million when a painting was worth $100 million?    Leizerman spent significant time in his argument guiding the jury around a possible hesitant juror, reluctant to enter a verdict in excess of $10 million.  He used the “preponderance of the evidence” burden of proof standard that he knew the judge would charge the jury.  He reminded them that one juror or even two might feel that a “huge verdict” was unreasonable yet, “beyond a reasonable doubt” was the burden in a criminal case.  They could award a “huge verdict” if it felt more likely appropriate than not because they were using a “preponderance of the evidence standard” and not a “beyond a reasonable doubt” standard.

This is not accurate. I never said that a huge verdict was unreasonable. I did say that the fair and reasonable verdict in this case was a huge number based on the relationship between parents and child. Yes, I did compare other items on which society places value, including Steve Nash and the $150 monitor in the courtroom. Whoever relayed the “beyond a reasonable doubt” argument to you appears to have heard something slightly different than what I said in court.

5.         The “perfect storm verdict” often has to have the “perfect storm jury.”  That was certainly the case here.  You can start with the emotional responses of the two jurors noted above, consider the large number of jurors with children the same age as these parents, and finish with the recognition that at least this long-time defense lawyer saw the make-up of this jury as one that would scare me to death.

There was no perfect storm here. Our judge, at times even without prompting from counsel, excused any juror who appeared to have an emotional or sympathetic response to our case. The relationships in this case, especially between the mother and son, were particularly close and moving.

Defense lawyer Tim Casey is an excellent lawyer with a good firm in Arizona.  He has the exact type of low-key, soft spoken, non-emotional tone about him that you would think would be perfect to defuse an emotionally charged case like this.  He has 20 years experience trying difficult cases and I don’t attribute anything that happened in this case to the defense lawyer.  Often defense lawyers get too much credit for winning cases and too much blame when there is a big loss.  Generally when you get a $10 to $20 million verdict against you, you are trying some of the worst of the worst.  The fact that this was a loss of consortium case makes it unique.

I agree that Tim Casey is an excellent lawyer. He certainly was aggressive for Covenant, yet mostly reasonable in accommodating requests for extensions and the like. He definitely was professional.  As for unique, while I am proud of the results in this and other cases, and each of my clients has a unique and important story to tell, there certainly have been other multi-million dollar verdicts on behalf of parents in wrongful death cases in courts across this country.

What does it mean?  What do we learn?  My first reaction was the wife and children’s claim should not have been settled unless the parents’ claim was as well.  That was not going to work in this case.  There was already bad blood among the two sets of claimants and refusing to settle the wife and children’s claims may have meant a substantially greater verdict if the case was tried.  In hindsight, I suspect that everyone involved on the defense side could have struggled more and more to get the parents claim settled. 

* * *

Cases like these receive all the publicity.  They quickly get onto blogs and websites like that Mr. Leizerman has (www.truckaccidents.com) and newspapers and magazines can easily and quickly find an article to fill their publication without conducting much effort.  However, DO NOT underestimate the importance of a lawyer like Leizerman to produce the mega-verdict.  There are about 12-15 lawyers around the country that are the best of the best in transportation related verdicts.  After all it had only been a few days prior to the Arizona verdict that Leizerman received a $5.2 million verdict in a BROKER LIABILITY case in Oregon.  The broker/shipper liability area is another trending area of the law that would have never been considered a “high verdict” potential just a few years ago.

Mr. Carr, I do appreciate your thoughtful analysis of this case. I believe you did the best you could given the information you had at your disposal. The next time I am in Birmingham, I will look you up and would love to continue our conversation over a beer, coffee or whatever you drink. It is my supreme hope that the work that we all do as lawyers on either side of the bar will ultimately make the roads safer while permitting our country’s great trucking industry to thrive.

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