Within the last week or so a Gulf Coast arbitrator awarded $2.325 million to a plaintiff whose dump truck collided with an 18–wheeler.

The accident occurred years ago on a four lane road in Jackson County. The 18–wheeler ran a stop sign and crossed two of the four lanes and stopped, with the trailer blocking two lanes. The plaintiff’s dump truck collided with the 18–wheeler. All fact neutral fact witnesses agreed that the accident was the 18–wheeler’s fault.

The forty-seven year old plaintiff suffered severe injuries and was permanently disabled. The plaintiff had over $180,000 in medical bills. In addition, the plaintiff losing his job caused severe economic hardship for the plaintiff and his family.

The case was originally filed six years ago in the Circuit Court of Jackson County. But the parties agreed to binding arbitration after three trials were continued due to the priority of criminal cases.

At the arbitration hearing, the defense argued that the plaintiff should have stopped his dump truck to avoid the 18–wheeler. The defendant’s accident reconstructionist—who had questionable credentials—basically flipped on the witness stand and testified that the plaintiff had only 2.5 seconds to stop, which was impossible due to the size of the dump truck. The arbitrator cited the defense expert in support of his decision.

$1.2 million of the award was for non-economic damages. But it was a pre-cap case, so the caps do not apply. The defendant is not expected to appeal.

The defendant offered $200,000 to settle before the arbitration. There was a workers comp. lien for the medical bills of over $180,000.

Kasie Braswell and Richard Taylor with the Taylor Martino firm out of Mobile represented the plaintiff. Jim Galloway and Shannon Favre with Butler Snow in Gulfport represented the defendant.

Word on the street on the Coast is that defense counsel is outraged by the result and that Butler Snow has canceled all future mediations with the arbitrator, who is well known and respected in Mississippi.

My Take:

If the defendants only offered $200,000 to settle before trial, then they did not want to settle. Offering $200k to settle with a comp lien of $180k is usually the equivalent of offering zero. If you want to settle, you have to offer a good bit more than the lien. In this case, it probably would have taken an offer of over $500,000 for the plaintiff to even think about it.

I have heard of the “hey, you hit my 18–wheeler” defense. But most lawyers view it as a weak defense asserted when there is nothing else to argue. Few people actually believe that they will win the case with the defense.

This case could have been a situation where the defendant fell in love with their defense and loss objectivity. You see this happen to lawyers on both sides, who have to buy into their cases in order to do a good job. Published studies show that on average, lawyers do a poor job of predicting the results of their cases. Sometimes lawyers lose all objectivity, which can lead to a really bad—but unexpected—result.

In my opinion, this phenomenon is usually more dangerous for defendants and defense lawyers than plaintiffs and plaintiff lawyers. On the plaintiff side, if you poorly evaluate your case, then there is not a lot that you can do after the case is filed. Defendants will not offer more than nuisance value to settle, which the client will not accept. So you have to try the case and work on doing a better job of evaluating the merits of a case before it is filed. A wise plaintiff lawyer will spend many hours analyzing a case that he ultimately rejects, knowing that the decision can save him countless hours and dollars down the road.

On the defense side, however, the phenomenon can lead to avoidable huge verdicts that take the defendant (often an insurance company) and defense counsel by surprise. This hasn’t always happened when you see a large verdict in a case, but it has a lot of the times. Many times, neutral trial observers were not surprised by the verdict, which often means that the defense fell in love with their case and lost objectivity.

Lawyers have to be careful not to fall into this trap—myself included. Using expected value calculations can help, as discussed in this post. But there is no substitute for experience and having the ability to stay objective in evaluating the range of possible outcomes.