A 9-0 Supreme Court ruling in favor of injured plaintiffs — against a conservative court, with the Trump administration's Solicitor General arguing the other side. That's what Rena Leizerman and her firm pulled off in Montgomery v. C.H. Robinson. Rena, a partner at The Law Firm for Truck Safety and one of the country's foremost architects of freight broker liability law, joins host Brendan Lupetin to break down the 15-year battle that culminated in a landmark ruling affirming plaintiffs' right to sue freight brokers for negligent carrier selection. The episode covers the legal mechanics of the Federal Aviation Administration Authorization Act’s (FAAAA) safety exception, the strategic decision to frame the case around safety — not plaintiff's rights — and recruit conservative Supreme Court heavyweight Paul Clement, and what trucking lawyers must do now that the preemption fight is finally over.

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1. Freight brokers like C.H. Robinson used a 1970s economic deregulation statute — the FAAAA — to argue that state tort claims for negligent carrier selection were preempted by federal law, threatening the ability of injured plaintiffs to go after brokers at all.
2. Rena's firm had been winning this argument in lower courts roughly 70–80% of the time, but the case that became Montgomery arose from a Seventh Circuit loss, and client Sean Montgomery — a truck driver who suffered a below-knee amputation after a Carib Transport truck ran him off the road — chose to appeal all the way.
3. The decision to take the case to the Supreme Court was as much an ethical question as a legal one: Rena had to weigh her duty to Montgomery against the risk that a loss could wipe out freight broker claims for plaintiffs across the country.
4. To win before a conservative court, Rena deliberately framed the case around safety and plain statutory construction — not plaintiff's rights — and recruited former Solicitor General Paul Clement, widely regarded as the LeBron James of Supreme Court advocates, to argue the case.
5. Twenty-eight states plus D.C. — including both California and Texas — filed amicus briefs supporting Rena's position, while C.H. Robinson's side managed to attract only two; the justices noted the unusual bipartisan alignment during oral argument.
6. The Trump administration's Solicitor General filed on the side of C.H. Robinson just days before oral argument, a move Rena describes as nearly devastating — until the court ruled 9-0 in her favor anyway.
7. With the preemption battle now resolved, Rena walks trucking lawyers through the new frontier: building a negligent selection case on the merits, including the discovery, expert, and causation requirements that will define future litigation.

Ready to refer or collaborate on med mal, medical negligence, and catastrophic injury cases? Visit our attorney referral page at PAMedMal.com/Refer. We handle cases in Pennsylvania and across the United States.

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I was here in my pajamas working on and writing some document. I get a call on FaceTime. Oh, so you're going to have me find out in front of everybody with the bun in my pajamas and everyone's laughing like, "We've got this, Rita. It's okay." Everyone's nervous. And then Michael says, "It's

Unanimous." Welcome to Just Verdicts with your host, Brendan Lupitan, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in- depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom. Produced and powered by LawPods.

Rena Leizerman, thank you for being here.

Thank you. Thank you for having me.

I know that you're going to be doing the circuit of podcasts as you should be for this very noteworthy thing we're going to talk about today, but I appreciate being one of the first people that gets to interview you about this and I'm just super excited to have you here, so thank you. So let me toot your own horn a little bit about you. So I've known about you, which I don't mean to sound this creepy, but I've known about you and of course your law firm for a super long time. I do mostly mid-mal, but we handle trucking from time to time and you can't not know about your law firm, law firm for truck safety where you're a partner with your husband, Michael, and a bunch of other superstar trial attorneys. But you in particular are really interesting because I woul d say what?

People call you one of the architects of truck accident law basically. I mean, reading about you, you've been involved in so many different significant legal battles within the realm of truck accident law. There aren't a lot of people nationally like you. So I think it's really interesting to interview somebody like you and somebody that's so smart. I was reading your background and of course your order of the Coif and Law Review at St. Louis and-

At some point that doesn't matter anymore. I'm not sure it ever did, but at this age it doesn't matter.

Well, then I was like, oh my God, she worked at Skadden Arps. I mean, that's crazy town. So first curious question, I'm going to keep going on about you for a minute before we get into the Montgomery case, which is the-

Rutgers just talk about me. It's so much easier. I can't make a mistake. I know the information.

No, but out of curiosity, just real quick, why would you leave one of the pinnacle law firms in the entire United States or the world to move into doing the amazing stuff you're doing in the civil injury world for truck accident victims?

So I was at Skadden for eight or nine years, somewhere between there. And it's not what I saw myself doing, but I did love the work. I loved the challenge. I loved my colleagues. I loved the role they let me take. They let me cargo out a very tight niche that I couldn't do in a smaller work environment where I can just do this one thing, which is just a lot of writing. And then I negotiated a one-year sabbatical, a paid sabbatical before I was up for partner and I was going to bike around the country. And instead I went with a friend on a retreat. She dragged me first before I went on Viking and I went on that retreat and I met someone named Michael Lieserman.

Oh, interesting.

He lived on a farm in Swanton, Ohio with two boys and I wasn't going to move two boys and there was no telecommuting then. So I took a leave from Skadden, a leave from my leave to do a practice trial with him to see if I liked it. I loved it. We did fantastic, got a great result. When I told the partners at my firm the result, they're like, "Yeah, we do that too."

Amazing.

And I love getting to represent individuals. I had a bottom line at Skadden that I would never represent insurance clients. So it really was the universe took perfect care of the situation.

Very cool. I think this will dovetail into the Montgomery ruling that just came down in the Supreme Court. And for the listeners, that is not a state Supreme Court. We're talking the United States of America's Supreme Court, which is truly rarefied error. But over the course of your career working with Michael and this great firm you both have, you've opposed and been involved with a bunch of petitions for cert to the Supreme Court that in the past you had opposed, right. From my reading, at least a number of those were directly on point to the sort of core issue of the Montgomery case, right?

Yep.

Can you sort of set the table for the background procedural aspects in these other cases that you would oppose and then how that led to you wanting to take this case up?

Sure, sure. Us opposing cert was because of good news because we had won in lower courts. Our duty to our client was to preserve either the verdict or usually the summary judgment ruling or the motion to dismiss ruling where the motion was denied. And because this is a preemption issue, which we can talk about, but usually it doesn't get to trial. This is, can you get to a jury? Can you even get to summary judgment? And so when we won in the Ninth Circuit, for example, in a case called Miller versus C.H. Robinson, we won in the Ninth Circuit. C.H. Robinson, the defendant broker in that case, filed a petition for cert. We were vehemently opposed to it. One, the current Supreme Court doesn't often follow the Ninth Circuit. Two, we had already won and we were still winning in most places around the country on the issue.

Over 70% of the time up until the end, we won at the trial court level and there wasn't a circuit split yet. This was it. This was the only circuit court ruling. So we had no reason to have it go up. It only could harm us is what we though. But they filed a petition for cert and the Supreme Court didn't just deny cert. They did something they do in about 2% of the cases, which is that they requested the view of the solicitor general. It's called call to question or something like that. I forget the tech, SVG, something like that. Whatever it is, asking the views at the solicitor general to say whether or not it was cert worthy. Usually it's a quick stamp of a deny cert, there's no circuit split. It hasn't percolated and the court's done. But instead, it became this whole drawn out procedure that very few people have.

It's hard enough to get to the Supreme Court, let alone to have the Supreme Court say, "We think this is an important enough issue that we want the solicitor general to weigh in on. " And that was high pandemic. So I got to argue to the Solicitor General from a hotel room on Palm Beach. I was wearing a bathing suit because they didn't even Zoom yet. It wasn't considered safe for the government to Zoom. I was on the telephone arguing to the entire Solicitor General's office, my career highlight at the time and I didn't even get a picture. I got nothing.

It's true. You're virtual. And that was in the Miller case.

That was in the Miller case and that went outstanding. It was so fun to argue the Slicitor General. They had so many questions. We did a follow-up brief. It went great. And then they filed a brief, not just taking our case saying deny cert, but substantively also. So they were 100% on our team, the federal government. And the court usually follows the Solicitor General on the decision of whether to take cert or not. So it wasn't a surprise then that the court denied cert in that case. Fast forward years later to this case, or did you have questions about that?

Well, yeah, I think for listeners and myself just starting at a foundational level, can you walk us through what this FAA is in the context of trucking and how the brokers were attempting to use it to escape responsibility?

Sure. So I'm going to talk about the law for about 45 seconds just to say what the law is. I'm saying that because I often want to fall asleep the minute someone says they're going to start talking about the law and it's not in my case right then that day. It'll be super short.

Go for it.

The statute says no state law affecting the price, route, or service of a freight broker can be allowed. That's it. That's the law. And what we're talking about is a negligent selection claim for negligently hiring when a freight broker ... A freight broker stands between the shipper. Shipper's got stuff to move. They need someone to take the stuff. Who's going to find the person to take them? They don't want the responsibility. They want to put it off to someone else. Also, they can probably save money of someone else who knows how to conglomerate mass amounts of data and things to do it. And so they hire a broker. The broker's got to find someone cheaper to take that load to make any money. You get paid $100 to find someone, you got to find someone to take it for 80. So they're very incentivized to find the cheapest possible trunk company.

Over 80% of shipper's loads right now are brokered loads. So the brokers really control what gets on the road. So you want to bring, let's say, so there's a crash. Yo try to see the truck company, but as many of you have maybe experienced in your careers, there's not enough insurance to cover your client's injuries and the lifetime of care they might need when an 80,000 town tractor trailer crashes into them. So you want to go up the chain and up the chain is to a freight broker. They're the ones that set the wheels in motion. The guy wouldn't have been on the road, but for the fact that they were hired to take this load. So if they were negligently selecting that company, if they hired someone they knew was unsafe or had reason, you'd have a negligence claim. You would think under what you learned in law school.

But they claim we got ... Oh, and I'll just note, in about 2009, we got the first punitive damage verdict against a freight broker for negligence selection. They were not expecting it. They were not happy. It was a case called Linhart versus Heil. The freight broker's name actually was Hyle, which was interesting at trial if you want to know about punitive damages. But as a result, they started looking for arguments, legal arguments to not get this in front of a jury. And someone got smart and found this old preemption statute that was designed for economic deregulation back in the '70s. It had nothing to do with state tort law. It was about tariffs and what routes you could take and all that. But you can see they have a point. No state law. What the law says is no state law affecting the services of a freight broker.

Well, tort law is state law. The service of a broker is to find a carrier. We're suing them for negligently selecting the carrier. It does seem from a hyper technical reading of the statute, even though that wasn't the purpose of the statute, no one disputes that, that it covers it. It looks bad for us. Not all courts found that way just because the purpose of the statute was so clearly different. It had nothing to do with tort law. They weren't thinking a tort law, but that's not what the Supreme Court decided. The Supreme Court said whether or not it's preempted is irrelevant. The question is there's a safety exception. And the safety exception says what state law is allowed, what can't be preempted is state law the safety regulatory authority, so state safety regulatory authority with respect to motor vehicles. In the early days of litigation, they challenged whether tort law was regulatory authority.

They stopped arguing it because no court bought it. If it can be a law on the side, it could be regulatory authority for the exception. All of this came down to everything. All the years of fighting, the Supreme Court, everything is a claim against a freight broker for negligence selection is whether or not it's with respect to motor vehicles, safety with respect to motor vehicles. That's literally the only issue that was really ... Lots of complication around it, but fundamentally that's the issue that was before the court and that's it.

So the way this makes its way to the Supreme Court, you guys had basically been winning this argument at the Circuit Courts for the most part up until this Montgomery case and then you guys lost the issue in this particular case at the Circuit Court level. Is that right?

So how it happened is about 70%, not exact, but approximately 70, even 80% of trial courts went our way at this federal circuit level. And also at the state appellate level, it almost always goes our way, but at the federal circuit level, even split at this point, not when the Ninth Circuit decided, but the Ninth and Sixth Circuit go our way, the Seventh and the 11th Circuit go the other way. But notably, when we filed our petition for cert for Supreme Court review, the Sixth Circuit hadn't ruled in that case yet. So what we had, just to note, and in the Seventh Circuit already had found in a case that wasn't ours that's called the Ye case. In that case, the Seventh Circuit had already found the safety exception didn't apply and it was preempted. That was in a different case. So in our case, we didn't even argue it at the Seventh Circuit.

We just said we want to preserve this issue for appeal. We're not going to try to convince you to go against the court that decided this. You're welcome to see our district court briefs, but we're not going to try to get you to do that, but we are preserving it for appeal. Did we want to necessarily appeal it? This to me is a matter of legal ethics. Did I think it was risky for all of our cases across the country and for all of our friends' cases who do what we do and for the safety of the public roadways and all of that? Of course. Considering the court is not a plaintiff-friendly court in general and just in general, it's risky. If you've got some statutory construction questions, it's risky. We've won so much in so many cases and we're still getting so much value for our clients that I really want to appeal it, but this client wanted to appeal it.

That's my duty to that client.

So Mr. Montgomery wanted to.

He wanted it. And we always present the option of appeal to our client. It's up to them to decide what to do. I received in the early days calls from lawyers all over the country saying, "What are you doing? I have a case. Why are you doing this now? It's good in my circuit. It's good in my district. It's good. I hear you. I got cases everywhere too, but on this case, my duty I believe is to this client and this client wants to go forward and we said, we will go as far as you want us to go. " Did we think the court was going to take cert? Not a freaking chance. They had just said no in ye in the Seventh Circuit about four months before, five ... I mean, within the year before, maybe two. It was short time expanded contracts at this point, however, but they had just said no.

Well, unequivocally, no. But while our circ petition was pending, the Sixth Circuit and a case called Cox versus blah, blah, blah, blah, I don't remember the Cox case. In the Sixth Circuit, the Sixth Circuit went our way. Now you have an even circuit split, two and two. Plause, some lower state appellate courts were going against the Federal Circuit Courts and the seventh and 11th district and finding our way. The courts don't like that. If there's a chance a state Supreme Court's going to go against a federal court on a purely legal issue, that also makes them nuts. And by the time we were at our reply brief stage, we had to tell them that. One last piece, the broker consented to the court's granting cert. Another huge ... So I'm giving you all of the reasons why the court would take cert here. You've suddenly got a circuit split.

You've got both sides agreeing to it. Now it's starting to look like something that they should take. Well,

It's a great ongoing saga too because C.H. Robinson, who is the significant player on the other side in the Montgomery case, was also the significant player in the Miller case, right?

As well as in almost all of our cases.

Right. So this battle has been raging for a long time with C.H. Robinson and now it's kind of time for the main event. They're like, "Okay, fine. Let's go do it up at the Supreme Court."

When we all were at the Supreme Court, we took a picture all together. Once the Supreme Court lawyers left and it was just us, the lawyers handle it who've been at the trial court and even at the lower appellate court stages, we all were like, "Let's just get a picture, shake hands. We don't know how this is going to go, but we have all fought the good fight." There was a moment of camaraderie of- Yeah,

Yeah. It's like Ali Frazier taking the photo together.

And everyone had their families with them. So it was definitely a bit, we could appreciate that it was a big deal on all sides.

And so point being basically the stars align because you have a client who wants to go, even though the amount of time it's going to take that they're good trying to take it up. Then you have this peculiar sort of set of circumstances procedurally in different courts with these split opinions and then you have C.H. Robinson saying, "Yeah, we're on board too to take it up." So I mean, truly on a case like this, these cases usually never stand a chance of getting up to the Supreme Court, but here there just was that perfect set of circumstances that allowed it to get up there. And let's just take a step back. You've already sort of talked about how the broker situation works, but let's talk for a moment of how Mr. Montgomery got into this position in the first place. So what were the basic facts of the case that you and your firm were representing him for?

And then sort of quickly, how do we get up to this point? Tell us about your client.

Yeah. So Sean Montgomery, 2017, the story always starts with the freight broker when you're representing somebody ensuing a freight broker. But the first line of your brief should always be because they want to make it like they had nothing to do with the dirty scene of the crash. They're up in the boardroom somewhere. They don't know about this crash. So the story starts, and I'm not going to tell the whole story bell. I always like to note that to other lawyers as a teaching point. The first word of your brief would be the freight broker's name because it gets it focused on this is the actor. This is the negligent actor that set this fall in motion. The queue of the pool, all sorts of different things.

And that's a great trial tip as well. Focus on who's the focus of judgment on, that you got to point the right direction.

So C.H. Robinson hired, we both don't know whether it's Carib or Caribe, but hired the truck company to haul a load, cross-country load. And our client, Mr. Montgomery, who's a truck driver himself, so in the industry, he's in his tractor trailer and lawfully on the side of the road, way off the road on the right shoulder. And this Carib transport/C.H. Robinson load guy drove off to the shoulder, slammed into the back of his truck. It was so forceful that it detached Mr. Montgomery's tractor trailer from the cab spun him around and his injuries included a below knee amputation of his leg. The driver was so out of it, he left the scene without stopping with his detached trailer left behind. He just kept driving until he was then stopped and he had falsified his logbooks. And what it turns out is that C.H. Robinson had hired them despite of a horrific history that was all available on federal government websites that they could check in addition to their own course of dealings with this company.

So even without the government, it's not even just that they should have known, it's that they knew and it's like they had actual knowledge.

And it's not as though this is the only trucking company they can work with. They have a bevy of different companies they could go with. They know this one is particularly problematic and yet here we are with them getting the load.

Right. And they do it all the ... And not all freight brokers are bad, meaning not all of them act negligibly, not all of them are careless. But C.H. Robinson, I could tell you the most poignant moment of the ... I had the exact words just because I wanted to quote them, but I don't have the exact words. But either way, the gist is during oral argument when Justice Kavanaugh asked the council to D.H. Robinson said, "So it looks like since the Ninth Circuit and the Miller that was in the early 2000s, whatever, 2020, it was over five or six years ago, that it said that you clearly are responsible for your negligence. What procedures have you implemented since then to evaluate carriers now that it's clear that you can be sued?" I said, "We were waiting to see what you would say. We were waiting to see if the Supreme Court would find it.

" I believe we won in that moment

On that answer.

I mean, because the justices were genuinely concerned with the safety issues. What I say to a trial court judge, which I wouldn't say at the Supreme Court, nor was I the voice at the Supreme Court, but even if I was, I wouldn't have said, "If you find against us today, I don't want to drive home on the roads today." There is zero incentive and they claim they have zero duty to check anything about this company except for the fact that it is technically legal to be on the road, which requires $300 and filling out an application promising to be safe. That is it. So the fact that Justice Kavanaugh asked that, it went right to the heart, "What have you done since then?" Basically, they were saying, "If you find for us, the roads get worse." I was delighted that they were so honest.

Yeah, that's still shocking in how candid they were.

I take you off the track of your questioning. I'm sorry.

No, no, no. So much of this stuff I'm just really curious about, most likely I in my career will not have a case that gets up to the Supreme Court of the United States. So once you are granted cert, Supreme Court makes this pretty significant decision that, yeah, we'll hear this. What happened next and what was eyeopening to you about this process of going from, okay, they granted cert, now what? What goes into that process? Because it's a very, very significant event to get a case up there. It's not just like going and arguing to the typical appellate courts.

Sure, sure. A lot of things I'll just tell, I could say some of the things that I didn't know about, I didn't know what was going to happen. Some I learned from the last run at Miller, but they apply. The first thing is that within 24 to 48 hours of risk getting served, something you need to do is you need to tell Georgetown University their Supreme Court practice that you're interested in having your case mooted with them. If you don't do that, you lose the chance and they have mooted, they've done a moot court for almost, I believe it's every single Supreme Court case of the past, I don't know how many years. Is it 50? Is it 70? But if only one side says they want it, they'll just do that other side. So you don't want that. So right away you have to know and if you don't know, now you know if you're listening, you immediately get on the phone, you look up Supreme Court practice, Georgetown, get on the phone, put your name in.

So we did that and then there's a coin toss both sides do, which usually it is both sides. At this point, everybody knows everybody wants it to have it done. It's really a great thing to do three days before the main event and we won the coin toss, so that was exciting. That was the very first thing I was concerned with before anything was like, get that call and do not forget. I had it on my calendar. We knew the date that the decision was going to come based on the Supreme Court's calendar when they announced these things and I had it written down, "Do not forget. Call Georgetown."

So two questions on that. One, who does the coin toss and two-

I don't know.

Oh, so it's not like a Zoom and you see the ref walk out and flip the coin. No,

No, no. We just have to trust them and they bound for us.

So they find for you, why is it so significant or important to have the case mooted? Does the Supreme Court take notice of it or is it just like helps with preparation for your own team?

So we ultimately did talk about what we did and we did have another moot court and some had even more than that, but it worked to have two. But they handle it. They bring in one from a financial piece. I mean, we'd already, it won't matter. In our case, we put so much money towards it. This wouldn't have made a difference, but for a lot of people, it's expensive to bring people in to get the space for it. People need to prepare. Then you have all the students who, in order for them to watch, they prepare, they have questions, but it's the chance to ... And they have different judges play the Supreme Court justice. People DC lawyers and judges and things who come in and stand in the shoes of a specific justice and they're asking all the questions they think that justice is going to ask based on all of their background.

And a lot of them are Supreme Court practitioners themselves. I mean, it's really a tremendous opportunity to get ready for the main event.

Very cool. Now is this something you, going back to my initial introduction where a large part of the architect of this issue getting up to the Supreme Court, do you go and argue this yourself or is this something you defer out to people that do this all the time?

So the first thing I did was the coin toss. The second thing I need to do is find out who the heck was going to take this on. I'm not a Supreme Court practitioner. To me, the magic of Supreme Court practitioners, no one will know this area substantively the way I do. I've briefed it I think 70 times, maybe more. I almost can't look at it ever again, but I don't have to. So it's not that I'm so smart and on this one particular thing, it's like most of my career was doing like 15 years of arguing this issue. I mean, it was other issues too, but that was a big part of it. And so I certainly was the subject matter expert on the issue. But the thing that I don't know is to, when one's justice is asking a question, they're not really asking me a question.

They're communicating to another justice about their views about something. They're trying to telegraph something and I won't know I couldn't possibly in a year's time become nuanced enough in all of that when there are people that just do that. But I knew it was going to mean letting go a little bit of the fact that some details might not get conveyed to the court because we can't answer every possible ... There's only so much information. So all of this to say, I talked to a few people in my world, I won't say who the people were. You know what even to say that would say who it was because it's a lot of people in firms that don't normally do plaintiff side stuff and I wanted somebody that was not plaintiff's side. That was my next thing. This is a conservative court. I wanted nobody tagged as plaintiff's side on anything.

I mean, not an amicus brief, not our advocate. If we frame this as a plaintiff's rights issue, we would lose. So I needed it to be about safety and statutory construction. The exception says this and we are within the exception like plain language we are in it. This couldn't be like a victim's bleeding heart situation. It wasn't going to fly. And so not that there's been people do bleeding harve, but I needed someone who represented conservative legal thought. So everyone suggested, concurred with what I found and is that it needed to be Paul Clement. So I wrote him on a Saturday afternoon that we got Cert was granted on Thursday. I called Georgetown on Friday. Saturday around 11 o'clock, I texted in the text line in the subject line and put Cert granted help!

This is to Paul Clement.

Yeah.

Nice.

I found it. And his email address, I just got off his website. I was like, I did mention somebody I knew that might know him in the message that I not just might know who knows him quite well, but that was irrelevant to him. He immediately saw the CERT granted help and I put the name of the case. He said, "I'll read the papers and talk to you in 15 minutes." He got back in seconds on a Saturday morning. I was like, "Okay."

So Rena, for those who don't know Paul Clement, who is he and what is his sort of notoriety in the Supreme Court argument world?

I'm going to say this only because that's what the internet says, but this is not how I talk, but he's considered the LeBron James of lawyers. I mean, it's so embarrassing, but that is what it says.

I probably loves that.

Yeah, I'm sure. But he's argued more than any lawyer in front of the Supreme Court over a hundred times. He was the solicitor general under George Bush. He predominantly represents conservative causes, many conservative causes of which I find really horrific given my own politics. I'm just being completely forthright. And he's even had to leave firms because of the views he's representing. What I appreciate is he goes, "You don't even know my view." To interviewers, he'll say, "You don't even know my views. I believe everyone deserves representation, the best possible representation." So I do appreciate that about him. And I will say this, he is extremely collegial. The minute within seconds of talking, he was like, "I don't even see how it's any other way. Of course this is safety with respect." He's like, "You're going to have to make this complicated for me because to me, this is not complicated." And that's exactly what I needed was someone who had the gravitas who could say that to the court, which is exactly what he said.

When I was called about this, I tried to make this complicated and I couldn't. So there were some complex issues to work out. We worked them out. I'm not going to get into that, but within two days he was signed up for the case. I will note that it was an expensive proposition. I won't say the dollar amount on the podcast, but to me, that's not a client cost. Our client gets a percent of our cases. That's what our contracts say with their client. I would not charge a client for that. It can't be charged anywhere. It's just a cause. And within the minute, he actually thought that would be a deterrent and I just said yes, because I knew that to lose it is hundreds of millions of dollars of recovery for all of our clients. Now I'm not just fighting for this client.

I am fighting for all the potential futuring current clients for all of us and the safety of the roadways. It needed to be him and that would have was. I will note something really tremendous as that a group of trucking lawyers learned that we had retained him and the amount is not secret. I just don't wish to talk numbers, but it's certainly noble and they can't charge it as a client cost. They already knew we hired them and paid, so it wasn't about helping us hire them. They already knew we did it. They knew we took it on and obviously we can do it because we're still functioning and they sent us checks, some anonymous, some not anonymous, but those checks added up to covering a substantial portion of what we paid. It gave such a sense of importance. I mean, if the pressure increased, I felt like, whoa, this is a big deal to a lot of people.

We can't mess this up. But I also felt just really moved by people. I don't know if I would've thought to have done that for somebody else. And so I wanted to share that because for whatever people think about plaintiff's lawyers, what I saw was people who just really cared about their clients and about the safety of the roadways and also wanted to do their part because this was going to go forward the exact same way, whether they sent us money or not. We already hired them and we paid them. We had to pay cash to keep going. So I was just very moved by our peers to do them.

Yeah. And I think, I mean, you talk about the stakes and you're saying hundreds of millions, but it's very likely more than that. I mean, because if the Supreme Court rules against you, there is just a huge portion of injured people's ability to recover money is just basically wiped out. These are catastrophic cases. They're happening all around the country. They're happening year after year. I

Sometimes they hire carriers with no insurance, which is the crazy part. They get a benefit for a benefit. You

Know what I'm saying?

What's it called, bootstrapping or whatever?

Yeah, no, 100%. I just put it in further context the significance of this and why understandably you probably had attorneys reaching out and saying, "Why are you doing this? Just leave well enough alone and everything." So there is a lot at stake. One thing we talked about that I thought was really interesting, can you talk about the process that many, many states sort of lined up in support as well? Can you explain how that unfolds and the extent to which you guys had to wrangle them up or they did it on their own?

To me, this was my biggest role I could take given that Paul Klet was arguing. Because he basically said I handle the oral argument, but I had asked him, "What's your avocado strategy? What do we do for this? " And he was like, "That is- That's

On you.

That's you. Yeah. I mean, he didn't say it that way, but that was pretty much it. And so I had to move fast. And I quickly learned that I needed to reach out to ... It's an organization. It's like the national organization. I'm not going to get the letters right, but the gist is it's for all the state attorney generals. It's this national organization for them that has conferences for them and all that. And there's someone named Dan Schweitzer who can help wrangle them, but that's his job. He does a lot more than that. He's an extremely impressive individual in his own right. But I reached out to him and he said, send me a letter from you and Paul Clement, good time to use his name, because I had a phone call with him. Said, "Explain the position and I will send it to all the states and we'll see what happens." So what we needed is my goal above all was to get red states.

I wanted this and I wanted the blue states, but I didn't care so much. I knew that the liberal justices that they would right away get about the safety implications of this case and the statute supported us so I wasn't as worried. I mean, there's some worry, but not so much. But I wanted as many red states as possible. And I did do some backroom, nothing illegal, but certainly reaching out to people I knew from law school, reaching out to other lawyers saying, "Do you know someone in this attorney's general's office? Do you know this? " And I leaned on as many people as we could. Amazingly, I happened to live in Ohio and Ohio was the state that agreed to go forward, a very red state, particularly on legal issues. And also the Sixth Circuit in Cox went our way and they wanted to support the Sixth Circuit.

And state's right is a big deal to them and they agreed to write what's called the Stalking Horse Brief. So they write the brief. They don't call it that. I'm calling it them. When I say what it's called, I call it the Stalking House Brief. I don't think I've never heard anyone else call it that. But they did the Stalking Horse Brief. And then for one week, not even Monday, it goes out on a Monday to all of the other general attorneys general. And then by Friday, they have to say whether they're going to sign on to it or not. That was the week that the phones were worth all over the country. Hilariously, every single, maybe one wasn't Blue State Attorney General was in Japan at a conference just for Democratic Blue State Attorney General. They all were in Japan up until Friday night.

This was due Friday during the day. So you know what? Lots of people helped with me. I'm like, "You have their cell phone number, you write them. You have this person's number." And our goal wasn't to push them to do something they didn't want. It said, talk to your office, read the brief, talk to your office, read the brief, talk to your office.

So the idea is getting them to join in on it.

Right. They needed to pay attention. That's the problem. They're busy. They only have so much time in five days and somebody who's got ... I can't imagine how many things get put before them. I just wanted to get it across people's eyes, get it in front of them and explaining the safety issues and to note that Ohio, strictly to the red states, they might want to get on board with this. Once Texas jumped on, it felt like, okay, through the night, it was all Thursday night on that one. It was crazy. But 28 states signed on plus DC when California and Texas, and it was noted by the justices. They asked the other side, "What do you got to say about that? You got California and Texas on here. What? You got New York and Illinois and also other red states." It was just very interesting.

Were there states that joined in on C.H. Robinson's behalf?

Two states they got.

Only two.

And those two states, their brief was about, because how are they going to go against safety on their own roadways? How are they going to go against state's rights? They represent these states. So instead what they went with is we have a lot of freight brokers in our state and it would be bad for business, like bad for our tax ... They didn't fit back space. And when that got filed, I will say that we were like, "Oh my God, the tide has turned up. We've got Paul Clement. We've got all these states. We also, and I'll get to the other point on the other solicitor general issue in a second, but we also had a group of truckers filed on our side and no one else from the carrier industry filed on their side. So the only people that are the trucking industry, and they're always claiming on the other side their policy argument, "This is going to hurt the mom and pop brokers." Well, we had an organization called the American Truckers Union.

Well, if you look up their website, Donald Trump is on the first page. They are Trump supporters, vocal Trump supporters and they supported our side because they didn't want the race to the bottom. They can't afford to be safe anymore. Given that we got a group, I reached out to a bunch of law professors. I wanted as much conservative or at least center professors that I can get. And I researched which professors are the most cited on preemption issues and a team was created and they filed a brief. So we really were feeling strong that day until midnight. As I was getting into vet, it occurred to me that the most important person did not file for our side and that's the Solicitor General of the United States.

And is that somebody that historically would weigh in on one side or the other?

Especially on preemption issues. And even though they waited on our side in Miller, that was during the Biden administration, this administration has no problem flipping and we didn't know for sure if they would flip. So I will not share all of the efforts between that date and the date that Solicitor General decided to file when they were waiting until the other side filed their reply and then they filed the amicus freeth were filed on their side and then they filed supporting the other side. And it was pretty devastating. And we though, I mean, I remember writing Paul, he was like, a litle bit all hope is

Lost.

Oh, really?

That carries that much weight for the solicitor general.

It carries a tremendous weight, particularly with this court and this administration, particularly on preemption issues.

Is it an extension of the president? Do they look at it or is it just-

But not only that, they're also the solicitor general is getting great deference for good reason. They really do generally in normal days, whatever these days are, but in normal days they have the best interests of the country. They are nonpartisan. They are a mix of people from different administrations who really want to get to the right result for the right reason. So there is good reason to give them deference, especially on preemption issues, which is such an issue about federal policy so it would make sense. And it's not so much the details, it's the purely legal question, right? It's such a legal issue. They put a footnote. We just ... Different times. So different result with no explanation. Their brief did not make much sense. It was not a particularly strong grief. It didn't make much sense actually, but them filing it was a big deal and it seemed a little bit hopeless.

So I'll know one interesting thing, like a political interesting thing is that the state of the union was eight days before the date that was the deadline for the solicitor general to file a brief. And during the state of the union, I'm looking at my notes if you catch me looking away because I don't want to get any names wrong. During the state of the union, President Trump introduced someone named Marcus Coleman. I was introducing something called Delilah's law. His daughter, Delilah, is five years old, horrific tractor trailer crash. She suffered traumatic coma, traumatic brain injury. Life will never be the same, needs intensive care to this day. And the driver or the truck company was undocumented here illegally. And Delilah's law was to prevent banned states from certifying undocumented individuals driving large commercial trucks. It was named Delilah's law. The thing is, is the truth about Marcus' case, it's not our case, but we were in contact with him just the day before was when I met him, but not over the phone, but C.H.

Robinson was the freight broker and there was no insurance at the truck driver at the carrier level. So here you have Donald Trump, the individual sad story that's being introduced and look what we're doing to help this family to make a statement about safety. Eight days later, the assistant solicitor general stood before the Supreme Court and argued everything the opposite. Not on behalf of Delilah, not on behalf of the American trucker on the road, but simply on behalf of industry. That's it. A $20 billion freight broker corporation.

Well, let me ask you a couple of things. Was the driver from Carib or Cribe the company that injured Mr. Montgomery?

It's a Cuban national.

Okay. Was he documented?

I don't believe so.

Okay. The reason I bring that up, not to make judgments one way or the other on people's immigration beliefs and policies, but the dynamic it's so similar. I mean, you have this injured person, Montgomery. You've got Delilah both injured by sort of a reckless company, both drivers potentially undocumented. Trump regime is making a lot out of the fact that, hey, we're going to have this new law probably focused predominantly on the immigration issue more than anything. But then you've got C.H. Robinson involved in both eight days before it's we're all for Delilah and the injured person and yada, yada. And then eight days later you've got, well, within that period of time, the solicitor general taking basically the completely opposite standpoint on behalf of the broker industry.

100%. And it was a difficult call for us in terms of our own individual ethics, our legal duty to our client and this issue because throughout this whole period of gathering solicitor general, state solicitor generals that talking to people in the solicitor general's office, I went and argued to them too for this case too, just like they asked our views when we came in and argued, I got to see them this time, but the government was during the government shutdown, so it might via Zoom, so I got to see their faces this time. It was a real question as to what we going to ... We knew that was a big issue to this administration. They were looking to do something about undocumented CDL drivers. A lot of our cases, that happens to be the case. That's not all of our cases, but it happens.

And that doesn't necessarily align with our politics. We want unsafe drivers and unsafe truck companies not hauling loads if there's not a necessary correlation. It does happen. And so it was tough. American Truckers Union, that's a key issue to them. They are for the American trucker, the American trucker. And then Justice Kavanaugh or Alito, I can't remember, which asked during oral argument of Paul Clement was trying to help him was basically like ... And I've been reading in the newspaper about these, because there's been a lot. There's stories in CVS News and 60 Minutes all during the time of this case saying, I've been reading about these undocumented, it's not the word he used, drivers and truck companies. And this will make sure that the brokers don't do that. And I really appreciated that Paul Clement, who is a traditional conservative, maybe what I believe.

I mean, it's hard to know for sure what he believes because he's so focused on his clients, but I've always believed as a principled conservative, but you never know for sure about anybody. But in that moment, I knew for sure who I experienced him, which was, I think it's illegal for us to consider that let's focus on safety. In the moment, to me, I was delighted that he handled it in a very principled way because he could have gone down the rabbit hole that would have might have alienated other justices, but also it would have been pretty seductive not to go down the nativist rabbit hole and he didn't. But it was something we had to massage throughout the case because that was how we were getting the most support to be bipartisan. It was tough to ask things like American Association for Justice who wants to show their members, we support your cause, but we asked them not to file a brief and they understood why we were asking them not to file a brief.

So I think that's some taste of the political stuff in the background.

I imagine so you went and were in the audience and observed the argument, right?

I can show you on my thing. There's a quill we got that's up there. We've got a quill. If you're sitting on the main council's table, you get a quill. So that was fun.

And I imagine it's a pretty awesome experience to watch an argument that you were pivotal in bringing up and creating and whipping up all these different state solicitors to get support and so forth and there's so much riding on it. Did it at all from a control freak perspective, bug you out to somebody else arguing it?

Oh my. It was horrible. It was horrible. I must have written like 500 notes. They knew that was a risk, not just with me. I imagine it's in every case because he can't be a subject matter expert on anything. And the person, me, the person in my shoes is always going to know more.

And you hear one thing that's slightly off and it's going to drive you crazy, right?

Well, the guy, he actually puts someone in between him and the person that's me wisely. And I was just scribbling and he just kept collecting them and being like ... It's a gentleman named Harker who's fantastic and a partner with Paul Clem, but he's more than just the guy in between, but he also clearly for that day, his job, and I'm glad because if he would've been reading my notes, he wouldn't have been able to have those quick answers that he has. So it worked out. The two things that exactly didn't come out right in my mind are the kinds of minutia, which is why trial lawyers should be in front of the Supreme Court, even though our egos tell us we should be there because I would've focused on that minutiae and gone down a rabbit hole with it. So I'm so glad that he was like, swipe left, keep moving.

Yeah. No, that's the price that you're paying for that level of expertise and experience. What was it like being there watching it? I mean-

It's a small room.

And then all the justices are there in this sort of dais blooming over everyone.You're

Just sitting right in front of them. It's such a small room. My desk where I was at was touching where they're sitting. It was feet between us, not- I

Don't want to get too bogged down, but procedurally, how does it work? The case gets called, your people go up. Does Paul start because it was your cert issue that got taken up and then I know you hear that these topics of a hot bench or not. Does he start getting interrupted by questions or is it-

They get a certain amount of time now. I forget. It might be two minutes. It used to not be this way, but now they get a set amount of time before they can get interrupted. They get to get a little intro. That's new. I don't know, new a year, but that's in modern times. And also now there's a period at the end where each justice, there's a moment to see if they each have a question. I'm guessing that that's so that everyone has a voice. The makeup of the court is different and it would be very easy for voices to get. That's what my guess is, but it could be so that Gorsick can stay, who knows, but it gives them each a moment to speak at the end.

And which side got peppered more with questions from your observation?

I think equally. I really did not feel like all hope was lost at the end of that oral argument. What I felt was for sure Justice Sotomayor, Justice Jackson and Katian were 100% an Arc Porner. They came up with arguments that I was like, how did they only look at this for a couple of weeks, maybe a week, they're law clerks, that they got deeper into it than ... I mean, they were great questions, they were helpful. It was deep. It was great. And the questions from the other justices showed that they hadn't decided yet. The biggest credibility issue with the court is that they decide questions before there's been any analysis or legal argumentation. They decided and then they go back. I teach jurisprudence. I'm like, that's all I was saying about. They go on a gut feeling or political feeling or whatever and then they go back and find a legal theory to make it make sense.

That's like the thing you don't want, but that's a reality that happens, especially with these big political issues like on abortion, let's say. They know how they're going, I believe. They're just finding how are they going to get there. But the really great decisions to me are the ones where they don't know and they're really open to seeing where the law takes them and that can only happen on a non-political issue like this, but it's not inherently political. So I was delighted because they genuinely seemed curious about the industry. They had never heard of it, it seemed before any of them. So it was exciting to teach them a little bit about it, but also that they really, they didn't know the statute. It was such a new out of the blue thing for them that they all were just curious. They had real questions.

So I felt like there was a shock, I will say. I was worried, terrified, and the minute I heard it was unanimous, I knew which way it went. Until the moment of unanimous, I did not.

Well, I want to talk about that for a second. So wrapping up this odyssey. So you leave, you're probably sounds like cautiously optimistic. You take the photo with the whole group of adversaries and everything and then you head home. How long is it until you start to get news that the decision may be coming down?

So the oral argument was on March 4th and the decision came on. It was sometime in May, maybe May 15th. But the point is that just that morning, because there are days where the court says on their calendar, there are decision announcing days. And I had just asked that morning, I asked my friendly Claude AI bot, my new special friend, what were the odds of a decision coming down today or any time in the month of May? And it said, absolutely zero chance based on everything. But also Paul Clement also thought, no way it was coming down this week. It was going to be June because it was too soon. But how I found out is that Michael, my partner in crime and all things, he was speaking at an AAJ event, a deposition college of some kind in Detroit. And in Dallas, we alternate these things that was.

I was here in my pajamas working on and writing some document. I get a call on FaceTime. We don't usually do FaceTime. I answer in pajamas with a bun on my head, which is not my way normally to be get on a screen. And he said, "I'm sitting here in front of 50 lawyers that I'm speaking to. " I'm like, "Well, all of you, I don't know why he has me on video because I haven't brushed my teeth yet. What is happening?" And he said, "Well, we just got word that they're about to announce the decision in Montgomery." I'm like, "Oh, so you're going to have me find out in front of everybody with the bun in my pajamas." And everyone's laughing like, "We've got this, Rita, it's okay." Everybody was nervous. And then Michael says, "It's unanimous." And I didn't hear anything else. I already knew he won because there's no way I really believe that I didn't know Justice Barrett was with us enough to write an opinion, but I did see that Barrett seemed to be going our way.

I even thought Gorsick seemed like it. Their questions seemed like they were sympathetic with our side. Also, knowing their views on state's rights, it was great to get the confirmation though, that's for sure.

I imagine. Now, Barrett suggested in her opinion that it was a relatively easy decision, but Alito or Kavanaugh or both, they not as much. They concurred, but they had some different thoughts, right?

Yeah. So basically they wanted to say that it wasn't such a close case. They gave all the reasons why about the specific details. The arguments that the trucking industry has been making and losing 70% of the time and 30% of the time approximately people would buy them. And so they kind of rehashed, just stated them, nothing we haven't seen. They did at the end suggest that if the broker industry wants a fix, there's lots of fixes they can do, including going to Congress. We do expect they've already started to seek regulatory change so they can bring that to Congress to seek immunity. They call it things like broker accountability law saying that if they do X, Y, Z, then essentially that should be considered reasonable. We will be seeking help from our fellow plaintiff's lawyers in that battle. Interestingly, they didn't put it in the current bill that's pending surface transportation.

I think they put it in and rescinded it realizing that there was too much public outcry against ... It got too public. There was a 60 minutes thing two weeks before the decision. There was a CVS news article talking ... I mean, people don't want to be on the roads with such dangerous companies with dangerous companies, but they are going to get savvy enough. It's worth enough dollars. And Amazon filed an amicus brief on the other side and Amazon dollars are also at play in addition to all the other freight brokers. They are a freight broker among other things. They're also carriers in my opinion, but we can save that for another day.

What are the takeaways for trucking lawyers given this decision and Kavanaugh's sort of admonishing the broker industry to take this up with their legislator or Congress or whomever, where do things stand right now and what advice do you have for truck accident lawyers?

So the first thing I'll say is if you have an intra, which means between a truck accident will know that it's within one state the whole load or they argue that it's interest state, do not go with that alone. I encourage you to reach out to me or ATA, which is the Academy for Truck Accident Attorneys or AAJ. I don't want to get into the fine legal coins, but the court's decision doesn't necessarily affect, doesn't address the preemption issue for intrastate, but a later decision they recently did called Flowers Foods and Arbitration Act case that that actually addresses, it challenges the whole concept of intrastate load, but their Emmy load actually can be. So definitely reach out to me so I can just give you a little blurb or two on that. So I just want to note that. So that's just like a very few loads are intrastate, but I just want to note that.

Okay, don't go with that alone. There's so much to argue. And then now the hard part is building the negligence case. Building a negligence selection case is not easy. You have to show what they knew or should have known. So you need an accident reconstructionist to show what happened. Then you've got to show what a broker could have known, that's trucking what data they could have found out about, what did they know in their own files? So there's two kinds of discovery. Then the third leg is what's reasonable in that industry. Then you need a broker expert. And then finally that you need causation, that the thing that caused the crash is the thing they could have known about and how tight that nexus needs to be to get past summary judgment before that we had this preemption battle. All of our cases were about that battle.

Now we're going to be back in that battle. I mean, these are not easy cases is my point. And so they're highly technical. They take a long time, but they are worth it for sure.

If you had to guess, how long is the current state of affairs likely to stay this way? I mean, what's the process for the broker industry trying to change it through different avenues?

So I don't know, but I do know ex post facto means any case that's currently pending, whatever law they get, it won't apply to. I don't know about crashes without things being filed, but I would keep things, especially if you get word that something, if they've proposed legislation and it looks like there's traction and you're deciding whether to file a case, you're holding off, you're busy, you've got vacation, maybe file it, get it on file. I just want to know that's my view about that. Why not be safe? That's really it. It's just watching what they're doing and combating their efforts. We might need to do a big lobbying effort.

And with Amazon weighing in, do you think they do that because this decision reaches beyond brokers to shippers and these big app-based freight companies?

They argue that they're just a broker all the time.

That's the position they take.

Yeah, because if they were a carrier-

Then they're cooked.

Then they're liable as a matter of law, not as a matter of ... Or if they were in control of the load. So they want to be broker because you still have to prove fault. And up until a couple weeks ago, they had a good chance on the net. They had some chance on the preemption front.

But this applies to, I mean, not just the straight up normal brokers, but these mega companies that we're trying to hide behind the broker avatar. Amazing.

Right. I'm not going to get into the politics of Amazon's role in the current administration alike.

I mean, there's just-

Your listeners can do the math. I will not be on record saying anything further.

No, without a doubt. And there's so much more that you could cover about this, but we'll bring it to a close sort of in a sense where it started. How did the gentleman who allowed this to go forward in the first place respond to it? How did Sean Montgomery take it? When do you explain this to him?

He was delighted. I think to have a case after his name, I mean, part of his leg was taken from him. He'll never be the same. And I think it feels like it mattered. Whether however it goes to trial or settlement or whatever happens with his case, because now we're finally starting the case. However it goes, he knows he made a difference, a real difference and that matters to people. He will always be associated with this case. His name will be associated with roadway safety. He has allowed all these people to get recovery and now all these freight brokers are putting out little blurbs saying that, especially since the thing on 60 Minutes, that when it happened the week while this case was pending, they're putting out things talking about what practices they're doing to be safe. So he feels good. I mean, I think he'd rather have his leg and also know that the lifetime of care he needs was being taken care of, but also this is another piece of the journey our clients go on to rebuild their lives.

I mean, it's amazing and noteworthy for him just because so many people would say, "Gosh, the amount of time this is going to take and delay my potential outcome," a vast majority of people would not have chosen what he chose. So he should be proud. And obviously, Rena, you and your law firm should be super proud because it's an amazing, like I said, odyssey to get where you got and then to win truly noteworthy as demonstrated by all the media coverage of this. So congratulations to you. Certainly something you'll never forget for the rest of your life.

No, no, I won't, but I'm glad it's done.

Yeah. And I'm sure there's a lot of other people that will be thanking you and your law firm for doing this and seeing it through. So congratulations and thanks for talking about this today. And that's the pod, Rena. Thank you so much.

If you enjoy the show, please subscribe to the Just Verdicts podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling or referring a catastrophic injury case, we'd love to work with you. Call us at 412-281-4100 or visit our attorney referral page at pamedmal.com/refer. Thanks for listening.