Broker Liability in Trucking Accidents After MAP-21

This federal statute was implemented on October 1, 2013.

The section of the statute most important for discussion here is 49 USC §14916. Whereas, prior to passage of this statute, entities using titles such as “transportation managers,” “third party providers,” “3PLs,” or “freight forwarders” may have been able to escape broker regulations, this is no longer the case.

Under MAP 21 if an entity is not a carrier and it gets any money for doing anything related to transportation of goods it is a broker. If it is a broker then it has to register, satisfy the financial security requirements, and otherwise comply with the statute. If it does not comply

with these requirements then the statute provides that it is subject to “Civil Penalties and a Private Cause of Action:

(c) Civil Penalties and Private Cause of Action.—Any person who knowingly authorizes, consents to, or permits directly or indirectly, either alone or in conjunction with any other person, a violation of subsection (a) is liable—

(1) To the United States Government for a civil penalty in an amount not to exceed $10,000 for each violation; and

(2) To the injured party for all valid claims incurred without regard to amount.

The statute goes on to state:

(d) Liable parties—The liability for civil penalties and for claims under this section for unauthorized brokering shall apply, jointly and severally—

(1) To any corporate entity or partnership involved; and

(2) To the individual officers, directors, and principals of such entities.

Suppose a shipper/freight forwarder/carrier having no operating authority as a broker, arranges to haul a load through a common carrier. The carrier then negligently causes the death of a third party. The shipper/freight forwarder/carrier in this example, and their “officers, directors, and principals” is exposed to the risk of paying $10,000 per violation

and claims to the injured third party “without regard to amount.”

The potential scenarios for similar exposure are unlimited. For example, assume that the entity originally brokering the load has proper operating authority, but the carrier chooses to re-broker the load. There is potential exposure unless the re-brokering carrier has proper operating authority as a broker.

The pitfalls for brokers created by this statute are broad. The best defense against these dangers is extensive vetting of carriers and business partners; monitoring carriers and business partners; and updating the vetting processes on a reasonably frequent basis.

15 Trial Tips for Novice Trucking Defense Attorneys (or "Other" Attorneys)

As you may know, I started my legal career as a prosecutor. I literally tried hundreds of  bench trial and scores of jury trials. In five years as a prosecutor, I was fortunate to have tried more cases than most attorneys try in a lifetime.

Recently, I was asked to associate with another attorney who in thirty years of practice had never tried a jury trial. I was honored to assist him. We actually did not go to jury trial; we settled the case. However, I believe because of my experience as a trial attorney I was in a better place to assist with the resolution.

This is not meant to puff up my skills. It is just a reality that trial practice is becoming a lost art. The following are few ideas that I came across. I like these I have shared. Whether you are a defense litigator or plaintiff's attorney, skilled or unskilled, novice or nostalgic, these are some good ideas that you may want to try.

Trial Preparation/Trial

1| Read, Read, Read
"Reread your petition and research the law, so you know what you have to prove," says Ted Horowitz, a member of the College of American Trial Lawyers and a plaintiff's attorney with 50 years' experience in negligence actions.

2| Gut Feelings

"During voir dire if some guy makes you so uncomfortable that you wouldn't want to go have a beer with him, keep him off your jury panel," Horowitz says. "You want only sympathetic jurors. Trust your instincts."

3| Do You Hear What I Hear?

"Ask the jurors, Can everybody hear me?" Horowitz says. "Lots of times the jurors don't even realize they're uncomfortable because they can't hear you or your client. As a result, they become irritated and unreceptive to your case."

4| Make It a Chat Room

"Keep it conversational," Horowitz says. "Know your case well enough so you don't have to read your opening statement or closing argument." The worst thing is to read questions to a witness. "But do keep a checklist of questions for each witness," adds Horowitz, "and make certain you've asked them all before you dismiss him."

5| Look for an Opening

"Never waive an opening statement. You need to win on that, especially in domestic violence cases or family law," Mustille says. "If you are representing the defendant, you cannot afford to give up that first impression after the plaintiff's attorney or prosecutor has made your client look bad. The judge is predisposed on first impression. You need to set a framework, to give the judge a filter by which to hear the case on your side."

6| Prove It All Day

 Don't make claims you can't prove. You'll lose credibility with the jurors and the judge.

7| Lie Detecting

 

"The facts are gossamer by their nature," Floyd Abrams says. "It's absolutely essential to know all the facts and the non-facts, too, the false statements. You need to be able to predict as best you can everything someone might say. People frequently say one thing to the police and another in a deposition or in your office, or in trial even if it's not deliberate." People remember one way at one time and another way at another time. "If your witness contradicts himself, don't look surprised," Abrams says.

"But when the other side's witness does it, look stunned."

 

8| Humanize the Company

 

"Jurors are won over by humans, not abstract legal concepts like the First Amendment. Your job is to make the jurors want your guy to win," Abrams says. "If your guy is a publishing giant, focus on his days as a reporter in the field."

 

9| Swing Back

 

"If your opponent is mocking or intimidating you, stand up and strut your stuff," Abrams says.  "When pushed, they shut down. You have to ask the court for everything. Whether you get it or not, what's important is the confidence you show. It's your credibility as a lawyer. Why should the judge or jury take your case seriously if you don't? Act bold not brash even if you don't feel it."

 

10| When you're winning, be quiet

 

"When the judge is on your side, zip it and let him or her talk," says Joe Mosk, partner in Woodstock, Illinois, near Chicago.  "It's a very difficult lesson to learn, but keep quiet after you've won. Same thing in marriage"

 

11| Control Your Temper

 

Whenever an  opponent is rude and raises his voice, don't take the bait and look bad. Lower your  voice and speak more slowly. The louder he gets, the softer you get.

12| Don't Become a Lawyer Joke

 

Drop the legalese and industry lingo. Nobody says "conspicuity" in every day life. They say, I couldn't see it because there was no taillights. Also, always talk to the jurors in a respectful, polite manner.

 

13| Respect the Judge

 

Never argue with the judge on rulings, but don't thank him or her either if you are ruled against. Just say "Note my objection, sit down and shut up. Jurors pay attention to how the judge reacts to lawyers. By the way, rude and nasty judges can antagonize jurors, too.

14| The Soft Sell

 

"Get what you need from the witness and get out," Horowitz says. "The second and third time a lawyer goes over the information, the jurors get bored."

15| Get Over Yourself

Focus on the interests of your client, not your ego. You have to do everything you can for your client, even if you look bad in doing it. For example, maybe you have to apologize for being an ass or you have to settle a case even if you think you can win.

These are just a few thoughts, please feel free to share some of your ideas. If there is anything we can do to assist you in North Louisiana or Northeast Texas, feel free to call day or night.

Mark