PREP FOR PERSONAL INJURY CASE BY THE ATTORNEY

Prep for your Case FAQs 

1) What should be my first steps? 

2) What are key things to look for in discovery? 

3) Should I hire experts? If so, what kind?

 4) Is litigation testing worth it? 

5) Could I argue there was more than one accident? 

6) What are common theories of liability in trucking cases? 

Pre-Suit

 Investigation Remember, even if you get the case early on, your investigation is already behind. By the time you meet your client, several investigations have already been performed (law enforcement/DOT, trucking company, and insurance company). So, after the initial client interview, send preservation letters to every potential defendant and nonparty in possession of evidence, informing him/her of his/her legal duty to preserve evidence in a potential civil trial.

For example, send a letter to the trucking company requesting preservation of driver logs, onboard computer data (i.e., electronic control module “ECM” data), and dispatch records. Otherwise, DOT regulations require that these records only be kept for six months. Preservation letters not only keep defendants from discarding evidence in the normal course of business, but also prove notice if spoliation becomes an issue at a later date. Further, to prevent spoliation and inadvertent loss of evidence, you should locate, inspect, and secure the accident vehicles as early as possible in your investigation. Go to the scene of the accident with an investigator or accident reconstructionist and take your own photographs and video of the scene. Then, identify and contact all potential witnesses. Getting eyewitness information about speed, distance, and driver behavior is crucial to your case. Since memories tend to fade with time, the sooner you are able to contact and interview witnesses, the more details you will be able to obtain.

After identifying the truck driver, obtain a complete driving history from each state in which he was issued a Commercial Driver’s License (CDL). Also request a copy of the Uniform Traffic Accident Report. If there was a motor carrier inspection performed on the date of the wreck, obtain that report as well by contacting the Motor Carrier Safety Division of the Department of Public Safety. Further, if fatalities occurred, a Traffic Homicide Report from the Department of Public Safety should also be requested. It is also imperative that you contact the appropriate state agencies and request copies of any other filings or certificates concerning the trucking company. Discovery Your discovery should focus on establishing liability while still considering factors that substantiate a claim for punitive damages. During discovery, below are some of the things you will want to request:

ü Driver’s qualification file and driver logs ü Daily inspection reports ü Annual inspection report üInspection, maintenance, and repair records ü OEM data and/or printout ü Any drug and/or alcohol tests taken after the accident üAccident register ü Any bills of lading ü Weight tickets üHotel receipts for the week preceding the accident üAny policy and procedure manuals or training documents üMedical records of the defendant driver üMedical records of your client üThe motor carrier profile from the DOT üThe DOT safety audit and rating of the trucking company üAll electronically recorded data relating to the truck, trip, and accident in question Also, request the following: üAny writing that relates to driving safety system in place at time of accident

ü Any device or system used to record the speed of the truck before and during the collision (e.g., a GPS tracking system) ü Any writing in place at time of collision relating to safe operation (driving, loading, etc.) üAny contracts or agreements between the truck driver and owner of tractor being driven ü Any contract or agreement between the truck driver and the people for whom he or she was driving50 You should always use a rules approach because it is the best way to show the jury that the trucker or trucking company did wrong in the case. Have a list of rules prepared before sitting down to take the deposition and be sure that the list is thorough and efficient. Ultimately, the existence and violation of these rules will form the liability backbone of your client’s case. After obtaining the responses to all written discovery, depose the following: üTruck driver ü Trucking company corporative representative üSafety director ü Trainer or instructor ü Lay witnesses Be sure to question the safety director thoroughly regarding hiring criteria, safety policies, safety records and procedures as well as methods of driver monitoring. The FMCSA maintains company safety profiles on carriers, available at http://www.fmcsa.dot.gov/.

Early in the litigation, determine the existence and amount of insurance coverage available in your case. Beyond the obvious discovery requests, take a look at www.safersys.org to determine the amount of coverage the trucking company has obtained. Remember that FMCSR Part 387 sets out the minimum levels of financial responsibility for trucking companies. Also, it is important to note that one of the unique considerations of insurance coverage involving commercial carriers is the MCS-90 endorsement. This is a federally mandated endorsement for all commercial carriers in excess of 10,000 lbs., enacted to prevent parties involved in the shipping of freight from denying responsibility and pointing the finger at each other and in effect preventing and/or delaying recovery to an injured party.

EXPERTS

 Carefully consider the facts involved in your case and select appropriate experts. For example, if your case involves a serious and permanent injury, the use of an economist to prove loss of future earning and the use of a life care planner to prove future medical costs can greatly impact your case value. It is a good idea to hire an accident reconstructionist early in the case, so he can be involved in the inspection of the accident scene and vehicles while the evidence is fresh. This expert is invaluable in your determination of liability and also in determining any aggravating circumstances such as speed or failure to take corrective action. An expert knowledgeable in the FMCSR is also an important asset. Such experts can greatly assist you by determining if a safety or logbook violation exists as well as providing testimony regarding improper vehicle maintenance, inspection, and equipment. Also, an expert can assist you in preparing for the trucking company’s depositions in your case.

LITIGATION TESTING

 I spend a great deal of my practice handling product liability claims against automobile manufacturers (see our Chapter Three section devoted to product liability claims). I have learned that litigation testing is a necessary fact of life for the product lawyer. A thorough understanding of how testing can be offered at trial is critical in these cases. The car companies certify their vehicles to Federal Motor Vehicle Safety Standards through crash testing and heavily rely on that testing in litigation to defend the product. These well-funded defenses routinely run litigation testing to counter plaintiff’s expert’s positions and we do the same to attack the defense positions. Moreover, even when attacking the credibility of the other side isn’t the purpose of the testing, Daubert concerns about the admissibility of expert opinions many times require the experts.

on both sides of the case to support their positions at trial through litigation testing. A few years ago, I found myself handling an increasing number of commercial vehicle cases, especially those involving tractor trailer trucking wrecks. Without fail, at some point in the case, the defendant tractor trailer driver comes up with some ridiculous excuse as to why the accident occurred. Sometimes the positions raise their ugly heads during interrogatory responses, but mostly, the truck driver offers them for the first time at deposition. I always wonder if these are planned out or off-the-cuff excuses for a horrible tragedy. The first time I faced this was in a case where the defendant driver made a left hand turn from the center lane of travel and hit my client who was also to his left. He claimed my client was speeding in the lane to his left and that the lane would have been clear but for my allegedly speeding client. The logical question I asked at deposition was, “Why were you turning from the center lane?” The driver’s response was unexpected. This defendant truck driver explained that it was impossible to make the turn in his truck from the left lane. He further went on to lecture me that not only did he always make the turn from the center lane, but that every truck driver who took that route did the same thing. To finally drive the nail in my coffin, Mr. Driver then tells me that the police in this small town allow these turns from the center lane to assist the drivers in this impossible task of making the left turn.

I left the deposition realizing that I had a serious issue that needed to be addressed. Even though this case was pending in Alabama, where such turns are statutorily prohibited, the driver’s turn was not negligence per se. Even worse, I could see a conservative jury buying this argument. My instincts kicked in, and I immediately began devising ways to disprove this position. Surely it wasn’t impossible, I thought. I hired a commercial motor vehicle expert who had a commercial license and could operate a tractor trailer. We rented an exact truck, and by exact, I mean the same year, make, and model as the one involved in the case. I then took a video camera and set out to film my expert make the turn the defendant driver had said was impossible. We discovered the “impossible turn” defense was a complete fabrication. We made the turn multiple times with no problem. The driver really did me a favor by throwing in that all the other drivers made that left turn the same way he did. While we were videoing our expert, we were fortunate enough to video several other drivers make the same turn from the left lane with no problem. Even though the other drivers were driving different trucks and carrying different loads, it was relevant to counter the defense’s assertion that everyone did the same thing. Producing this video tape at my expert’s deposition was the end of the case. The defendant driver lost all credibility, and since I had also gotten the trucking company’s safety director to agree with the impossible left turn defense, the defense was left with zero credible witnesses and no solid theory to rebut our allegations. The litigation testing I conducted in that case disproved the defendant driver’s ridiculous excuse and resulted favorably for my client. The success I had with litigation testing in that case led me to use litigation testing in almost all of the trucking cases I have handled since that time. The key to litigation testing is finding the issue. I recently heard that every case is about something. Our job as lawyers is to find out what that something is and then take hold of that issue for our clients. I have learned that litigation testing in a tractor trailer case can do just that under the right conditions.

It is often difficult to have litigation testing admitted into evidence. To comply with the evidentiary hurdles, a product lawyer must first decide what the litigation testing is trying to accomplish. Then, the lawyer must devise a plan for the litigation testing that anticipates any problems with admissibility. In my case above, it wasn’t enough to have a truck make the turn. I needed the same truck, with the same load, traveling at the same speed, and under the same driving conditions. Obtaining that information takes planning through discovery. A product lawyer can offer litigation tests for multiple purposes. A lawyer can use litigation testing to recreate the event or to illustrate physical principles in play. The evidentiary standards are different. This is an oversimplification, but a recreation usually is attempting to show the full event of what happened. An illustration is a small piece of the puzzle.

Recreation Testing The evidentiary burden is raised if the purpose of the test is to recreate the accident or some aspect of the accident. The most important hurdle when doing this type of litigation testing is making sure what you are showing in your test is substantially similar to the actual events. It is well established that “[a] test is not admissible unless the test conditions are so nearly the same in substantial particulars (as those involved in the episode in litigation) as to afford a fair comparison in respect to the particular issue to which the test is directed.”51 Making sure that what your test depicts is substantially similar to the actual event is of critical importance. That is not to say that the testing must be exactly similar; substantial similarity by definition is not exactly the same. The jury must be able to compare what is shown in the test and then make a fair judgment as to the actual incident. We recently handled a case where our client was a truck driver who started out as a defendant. Another trucker had hit him from behind while our client’s tractor trailer was stopped in the roadway. The impact killed our client so we were never able to ask him what had happened. Our client had put out two of the required warning triangles prior to his death. We initially believed our client’s vehicle was disabled since his vehicle was stopped in the middle of the roadway, but mechanical inspections failed to reveal anything wrong with the tractor trailer. This case posed a serious problem. Our client was in violation of the law in several aspects, including blocking the roadway and failing to appropriately warn oncoming traffic.