Automobile and trucking accident cases typically share at least one thing in common – the road. Beyond that, they are very different. Because of extensive State and Federal regulation of the trucking industry, commercial truck cases present greater opportunities to prove liability, as well as perhaps preserve, discover and develop a punitive damages claim. Such as it is, a different approach should be taken than with regard to the ordinary car crash case.
Trucking cases are about the company, and not just the driver. Jurors can relate to the dangers presented by big trucks. Big trucks running the road unsafely make jurors angry. That said, big truck cases yield big settlements and verdicts when properly developed and presented. Because of this reality, truck cases are staunchly defended.
Competition is fierce for these high value cases among the defense bar. Commercial trucking defense counsel are generally specialists having an extensive background assisting in the defense of these high value cases before ever becoming lead counsel. You may well find that you have highly experienced local counsel, with national counsel
and/or in-house counsel working together against you. What information you are ultimately provided in the case from the defense has been sifted, filtered and sifted again, with the refined product released to you – and only if properly requested…
1. You have to put the work into this critical deposition and money into these cases; if you are unable – get someone to help.
The deposition of the safety director is critical to making the case more than just a typical auto case. You have to be extremely well prepared to do so effectively. These cases consume resources – both in attorney time and money because of often significant case expenses. You have to do the work, and fight for discovery in theses cases, before ever approaching the deposition of either a driver or safety personnel. You need experts in these cases. The underfunded, underworked case can be both a missed opportunity for client and counsel, and a potential malpractice claim for both. Consideration of co-counsel upon engagement with the client is critical, so as to insure
that the case is properly investigated pre-suit, and well funded.
2. Cogitate, contemplate, and strategize early in the case.
From early investigative work, considerations should be made as to potential areas of discovery in the case. The fruit of this discovery will be in your preparedness for the deposition of the safety director. The case will evolve as more information is added to the investigation. Obtaining additional necessary information when considering
different theories of liability will cover multiple sources and concern numerous potential target defendants. This is because of the voluminous, exacting regulatory obligations placed upon the truck driver, the carrier for whom he is driving, the safety director personally, the broker brokering the load, whomever loaded the truck, and the owner of
the equipment involved, etc.
3. Preparedness requires the documentation: send a spoliation letter.
Trucking operations produce significant quantities of data and information that can provide or support multiple basis’ for liability. When investigating, relevant documents include documents that must be kept that will relate at least to: the accident, qualification of the driver, driver history, the safety of the carrier involved, brokerage of
the load on the truck, the legal relationship between the driver and the carrier, the specific load carried on the truck at the time of the accident, the drivers “hours of service” at the time of the accident, the truck’s history as to recent
locations/deliveries/stops, the equipment involved, insurance, and others.
In trucking cases, requesting and obtaining records as soon as is possible relating to the involved driver/team, equipment involved, and companies, is extremely important. Certain records may not be retained beyond defined retention periods – or otherwise. These records can contain data proving multiple causes of action, including viable claims for punitive damages. Once an accident occurs, one can assume that the involved companies will do a records audit, and destroy any records retained in excess of legal retention periods, calendaring additional destruction as they may argue may be lawful and appropriate. A spoliation letter will make doing so much more risky, if not impossible. As soon as is possible, send a spoliation letter. Some very important records are only retained for 6 months (such as driver logs) – with some exception. Should the spoliation letter be met with resistance, and you feel the records are at risk of loss or destruction, early suit with a Count seeking injunctive relief for the retention and expedited production of records may be appropriate.
4. “You can’t always get what you want, but if you try sometimes, you will find, you get what you need.” Keith Richards and Mick Jagger.
Trucking companies and counsel often will delay the Plaintiff’s investigation. Requests for information are misplaced, forgotten, or ignored. Requests for information or documents are often only partially answered, with omissions that can be strategic. A cynic might believe that some of the delay is in hope of cajoling counsel into missing evidence due to the passage of time… There are hosts of other reasons for such conduct – none that matter though, because counsel simply needs the documents. Regardless – you need to be prepared to depose the Safety Director. That means that you need to fight for what you need. If you do not fight, one thing is likely – you will not
get what you need. This is a critical deposition in any trucking case, with the potential to add significant value to your case.
5. Focus on Safety – After All, this is the Director of Safety….
Get all Safety Policies and the Procedures Implementing the Safety Policies: Pay special attention to those on Inspection, Equipment Maintenance, Driver Training, Driver Employment, Driver Review and Discipline, and those that are Accident Related. Typical written safety policies include: Accident Files, both tracking and investigation, Vehicle Inspections, Cargo Loading and Unloading, Safe Driving: with topics addressing defensive driving and driving in varying conditions, Dispatching, Driver Orientation & Training, Driver Qualification and Hiring, Driver/Employee Retention, Drug & Alcohol(this is required of all), Driver Logs and Log Auditing, Vehicle Maintenance.
6. Spare no expense – research this deposition and company exhaustively and document this deposition on Video.
Research the company, driver and safety director. Run the company through Google, Yahoo, and every other search engine you can – trucker’s get lonely: you can sometimes find driver’s chatting or posting about their employers on the web – actual complaints about management or safety. You may even find pictures from an accident, posted by a third party. Print and download all website information available on your target defendant for future use: it might disappear as a result of post-accident investigation, etc. This is particularly true with smaller companies. Videotape the driver and safety officer depositions – they can be GOLD. Some safety officers clean-up well and essentially become professional witnesses – others do not…
7. Exhaustively depose this individual – it is likely your only chance.
Consider this an opportunity to test whether your driver, safety officer, or training officer is really a trucking professional. Use available industry tools and resources on every aspect of their role. Make them educate you if they can. Technique tip to consider – show these witnesses what they don’t know first – make them question what they do when it counts…Cover every aspect of the trip that resulted in your case, and every record of it. Have each witness interpret and explain each record, including shipping content, stops, rest, and inspection reports, etc. Find out what records might be missing – ask both the safety director and driver “what else should be here concerning this load”? These witnesses can teach you about their industry, their company, and the accident. Confirm what you want or expect from each witness – and exhaustively depose the witness.
8. Have this witness evaluate the driver’s file, qualification, discipline, and conduct causing the accident.
Be sure to cover the application for employment – the driver has to certify its accuracy. The contents are addressed below in the section on depositing the Safety Director. If there is a wedge between the driver and the safety directory, the driver may take the opportunity to drive the wedge in a bit more… If there is no dispute, and the driver acted outside of the policies that were to be enforced, or there was a close-call involved as to an infraction and no discipline was meted, that’s not bad for the case either: looks like discipline was avoided perhaps to shield the company from an admission of a violation of policy.
9. Know your regulations or get someone who does.
Have a firm grasp of the applicable federal and state regulations involved in the case – and compare the target defendant carrier’s safety policies to them. The regulations are a minimum that must be followed – industry standards may be higher Use a Trucking
Industry expert or bring other qualified counsel into the case. Have your expert educate you – issue spot with you, and analyze the involved records. Ask your expert if there is anything indicative of a need for additional experts – i.e., reconstructionists, forensic experts relative to equipment, mechanical experts, communications experts. With
regard to co-counsel, part of a great fee is better than the entirety of a malpractice claim.
10. Explore the culture of the company – did it promote safety?
Investigate the “culture” of the company relative to safety: what type of safety program did it have – accident prevention – or minimum compliance with law. Find out whether the company had an “open door” policy relative to safety, or suggestion boxes, surveys, etc., about safety. Inquire whether there was simply “lip-service” given to the policies, or were they really enforced.
JJ. Keller & Associates, Inc.: everything one would ever need to run or learn how one should run, a trucking company. Some information gathered for this presentation was obtained from one such resource – “The Transportation Safety Pro”, October, 2007. Go to www.jjkeller.com to research and purchase these products.
The Federal Motor Carrier Safety Administration; www.fmcsa.dot.gov and also its site for carrier information – including insurer information – at www.safersys.org.
The Kentucky CDL Manual:
www.trucking.org (the website of the American Trucking Association).
The FMCSA Southern Resource Center is a regional source/official contact for
information in Kentucky:
Southern Resource Center
1800 Century Boulevard, N.E. Suite 1700
Atlanta, GA 30345-3220
(404) 283-3579 (fax)
© Lange 2015
Some content of this work was provided in prior papers delivered in New Jersey Trial Lawyer and Kentucky Justice Association presentations.