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Prep for your Case FAQs 
1) What should be my first
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? 
 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
ü Annual inspection report ü
Inspection, maintenance, and repair records
data and/or printout
ü Any drug and/or
alcohol tests taken after the accident
Accident register
ü Any bills of lading
ü Weight tickets ü
Hotel receipts for the week preceding the accident
Any policy and procedure manuals or training documents
Medical records of the defendant driver
Medical records of your client
The motor carrier profile from the DOT
The DOT safety audit and rating of the trucking company
All electronically recorded data relating to the truck, trip, and accident in
question Also, request the following:
Any 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.)
Any contracts or agreements between the truck driver and owner of tractor being
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:
Truck driver
ü Trucking company
corporative representative
Safety director
ü Trainer or
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.
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.
 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
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.

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