In this episode we sit down with Mike Thomas of Pennington Law’s Tallahassee office. We discuss Pennington Law and a bit about what makes them qualified to represent transportation companies and insurance companies.
John Davis: All right, today I am interviewing Mike Thomas with Pennington Law Firm in Tallahassee, Florida, and we’re going to talk a little bit about trucking defense and some best practices with trucking. I wanted to start off a little bit just tell us a little bit about Pennington. Do you have some offices around the state of Florida?
Mike Thomas: We do. Our primary office is in Tallahassee where we have about 25 to 30 lawyers. We also have two lobbyists there in our branch in Tallahassee. We also have a location in Tampa, seven or eight lawyers down there. Also a office in Miami where we’ve got, I believe, two lawyers down there.
John Davis: Okay, great. And your firm does insurance defense type work, is that correct?
Mike Thomas: Primarily, we like to describe ourself as a full-service firm. Having said that, we primarily do insurance defense type of work, we don’t do any criminal defense, white collar defense, anything like that. No white collar criminal, no criminal defense actually at all. It’s all primarily general civil litigation with … Actually, now we’ve got a family law lawyer as well. So it’s administrative, it’s civil litigation, it’s regulatory, it’s, again, full service certainly.
John Davis: Okay. In the past we have talked about some of the things that are going on in the trucking world as a … does with litigation and defending trucking companies, and working with their insurance companies, and those kind of things. And, you know, there are some hot topics right now and some of those, you know, ELDs are really big right now, the electronic logging devices. I’m seeing some interesting cases come down the pike on some of these things about …
John Davis: You know, I was talking to a Miami client recently and they had a case where a truck was in the right lane, going down the interstate. It was within the speed limit, the driver was not on his phone, wasn’t doing anything wrong, and another car ran into them. And the interesting thing that happened with the trial, the plaintiff’s attorney was to get in the electronic log device and see that the truck driver was speeding about 30 minutes before. What happened is they were able to get that into evidence and the trucking company actually lost. That insurance company lost that case because of that evidence.
John Davis: So one of the things I wanted to ask you about is so you’re defending that case and you’re representing the insurance company for that trucking company. What are some of the things you would do to try to eliminate that, because the electronic log device, they have a whole bunch of different things they’re looking at?
Mike Thomas: Right. Well, I think one of the first things I would do is move in limine, file a motion in limine to prevent that testimony ever seeing the light of the courthouse. And why is that? It’s just not relevant in my eyes, and in order to preserve certain things on appeal, you’re going to have to file the appropriate motions. So what I would do before trial, months before trial, maybe early on in the litigation process, once I appreciated this information was out there and the plaintiffs were trying to use it against my insurance company, my trucking company, I would immediately move in limine to exclude that evidence from trial, and ultimately have a hearing on it. And if the judge granted the motion it would be excluded and I would win. If the judge excludes it, he or she already has it … If the judge denies my motion and that testimony is admissible, they at least have a heads up going forward before trial as to why I don’t think it should be admissible or certainly considered at court or during a trial.
Mike Thomas: At trial, again, to preserve that I would object based on relevance. And, if at that point in time, the judge denies it again, I can appeal the denial of my motion of limine and the trial denial as well. So I’ve got two grounds, if you will, that have been preserved with respect to that issue. And my argument in that case would be, where does this end?
Mike Thomas: Can I also say the plaintiff is the cause of this accident? Or is comparatively negligent because of let’s look at what he or she did 30 minutes before. If they had taken a different route or had been going slower or faster. Maybe they could have avoided this accident, Your Honor, does that make sense that we should bring that up and do we also look at what happened, where my driver was 45 minutes, an hour before? Maybe he was going slower than the speed limit, maybe it’s a wash. I would do whatever I could, in short, to move in limine to exclude that testimony if it was denied at trial. Make a contemporaneous objection and if the trial went bad you’ve got an appellate issue built in and I would like my argument on the relevance of that issue.
John Davis: So that’s a very interesting point there. This issue is more of an evidence issue versus the driver driving the truck did anything wrong or the relevance of the driver being in that spot. So it all has to do with the evidence versus facts.
Mike Thomas: 100% accurate. The facts are what they are. It’s the lawyer’s job to convey to the judge as to why that is not relevant.
John Davis: But that is the importance of the defense lawyer is to know that and to go after the evidence versus the fact that this other attorney said, “Well, they were speeding 30 minutes before.”
Mike Thomas: And that’s why it’s important early on to file this motion of limine to put the court on notice. And they may hold that in abeyance, they may say, “Well, it’s a little early, but thanks for giving me a heads up. I’m not going to rule on that motion.” And then at trial when that information is elicited you object to it and have a sidebar and say, “Your Honor, remember my motion of limine, you held that in abeyance. This is what I’m talking about, it can’t be relevant what my driver was doing 30 minutes before with respect to speed.”
John Davis: And you made a whole point there, too, is well, what was the other driver doing 30 minutes before?
Mike Thomas: Right. Should that be relevant?
John Davis: Yeah, absolutely.
Mike Thomas: They could have avoided this had they’d only woken up 30 minutes earlier.
John Davis: Right, or didn’t stop at Starbucks or whatever, you know? They just … I see what you’re saying. So in that case that I heard about, it was interesting that that’s what happened. So it’s an evidence thing.
Mike Thomas: And look, we try a lot of cases and you’re going to get different judges and they’re not all going to rule the same way on these issues related to relevance. That’s why it’s important to preserve the record, so you can appeal something. You may not know that … If you don’t object to that at trial, you’ve waived that on appeal. So if you don’t make the appropriate objection at trial, you’ve waived it. That’s why I kept saying, “Do the motion of limine first and then object at trial.” And then, you can even object again before the jury gets the case. The fact is you’re preserving the record for appeal. If you don’t do that, you’ve waived it.
John Davis: Right, right.