Automobile, truck and bus cases share at least one thing in common – the road. Beyond that, they are very different. Because of extensive State and Federal regulation of the truck and bus industry, truck and bus 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 than with regard to the ordinary car crash case should be taken.

 

Truck and bus accident cases are fiercely defended. Competition is stiff for these cases among the defense bar – 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...

 

When considering the strategy for a particular deposition in a truck or bus case, and especially when preparing for the deposition of the truck driver, much has to have been done already. This work should be done both prior to litigation, and in discovery. This is because the investigation of a truck or bus accident requires more than obtaining a police report, some photographs, and hiring an accident reconstructionist to explain how the accident took place. Obtaining necessary information about the case will cover multiple sources and concern numerous potential target defendants. This is because of the voluminous, exacting regulatory obligations placed upon the truck or bus driver, the carrier for whom he is driving, the entity that loaded his truck, and the owner of the equipment involved, etc. Strategic planning for the depositions of these involved parties starts as soon as you get the case.

 

 

Strategy 1: Know and Understand All Case Documentation.

 

  • The documents that must be kept that will relate to the accident, whether as to the qualification of the driver, the safety of the carrier involved, the load on the truck, the accident, the time spent on the road, the equipment involved, etc., provide the Gold in truck and bus cases.

 

  • No one likes to give up their Gold. Beware – trucking and bus companies and counsel often string out the Plaintiff’s investigation – they ignore requests, lose requests, half-answer requests, and delay 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 you simply need the documents.

 

  • Request the records – send a spoliation letter immediately. You will need the pertinent records – and to understand what records are missing from what you get - for the essential depositions of the target defendants.

 

  • No matter what it takes, requesting and obtaining records relating to the involved driver/team, equipment involved, and companies, is extremely important as soon as you get the case. Certain records may not be retained beyond defined retention periods – or otherwise – some of the most critical records, driver log books, are only retained for 6 months from the date of the accident – and you want pre-accident logs, going back several months before the accident if possible. 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 that risky, at least.

 

  • Sue quickly if need be. 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.

 

  • What records? 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.

 

  • Conduct extensive written discovery against the driver and all defendants. Require the driver and other defendants to affirm that any records provided prior to discovery are true, accurate and complete. Take a FRCP 30(B)(6) deposition of the records custodian to determine what records do and do not exist, and where they are retained. Again – you cannot necessarily rely on the defense lawyer with whom you are interfacing’s understanding of what exists – his information has likely been filtered – whether from Mom and Pop in their trucking outfit, to the savvy in-house counsel or risk manager, to national counsel. I suspect that more than one reputable and honorable defense lawyer has been shammed by national or in-house counsel…

 

  • 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…

 

 

Strategy 2: Who to depose.

 

  • Having conducted extensive written discovery against the driver and all defendants, you now know SOME of the players. Obviously, you will depose the driver. If team driving is involved, you will depose both.

 

  • The target carrier. Issue another FRCP Rule 30(B)(6) deposition – this time focusing upon all aspects of the involved driver, company, policies, equipment, accident, etc. This may generate multiple witnesses, but you will get someone authorized to testify on behalf of and bind your target on the issues – bear in mind that different personnel handle different functions in large operations, some operations outsource critical functions (driver qualification, equipment maintenance, etc.) and that you may have to depose persons outside of the target defendant’s employment. Ask who hired this person, who qualified this person to drive, who supervised this person, who trained this person, who disciplined this person, who is responsible for safety, etc. Most importantly, do not be afraid to delve deeper – if someone declines to testify on a material point, ask who would have that information in the company. Do not be stymied or stone-walled. Depose whomever has, or should have the material information sought – the further into the corporate structure that you can go, the more you may learn.

 

 

Strategy 3: Setting the stage – preparations…

 

  • Consider this an opportunity to test whether your driver, safety officer, or training officer is really a trucking or bus 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”?

 

  • Be sure to cover the application for employment – the driver has to certify its accuracy. The contents are addressed below in the section on deposing the Safety Director.

 

  • 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.

 

  • 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 or Bus Industry expert. 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.

 

  • 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. Maybe you will get some Gold – the Facebook photo from earlier in the evening at a bar 300 miles from where the logs put him, doing a shot…

 

  • 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.

 

  • 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. 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.

 

Strategy 4: Effectively Deposing the Safety Director

 

  • What is a Safety Director? Carriers must have an individual responsible for safety. This is a critical witness in most trucking cases. Pre-requisites for the job have no uniformity. Some come to it by experience, some by training. There is a Certified Safety Professional certificate that can be attained.

 

  • A generic job description has the Safety Director responsible for the following critical functions – work the Safety Director through each of his duties exhaustively. There may be others performing the tasks for which the Safety Person is responsible – cover such personnel, and establish where the ultimate responsibility rests for assuring the duties are met. Areas for discussion from a generic job description for a Safety Director include:

 

Oversee the management of the safety department, and monitor and ensure compliance with all applicable federal and state regulations.

 

Develop and implement safety programs and procedures.

 

Audit and take corrective action when safety deficiencies are discovered. For safety related staffing decisions, including hiring and retention of driver personnel, and development and implementation of employment evaluations and criteria.

 

Maintain accident and injury files on drivers/employees.

 

Investigate all serious (reportable) accidents, lost-time injuries and cargo claims.

 

Implement corrective measures – mete discipline.

 

Ensure qualifications of drivers and maintain driver qualification files: responsibility for background investigations of previous employers, driver interviews, driver medical exams, and driver road tests.

 

Maintain federally required accident register.

 

Maintain driver drug and alcohol files and records.

 

Maintain and audit records of duty status – implement corrective action plan and discipline for violations.

 

Ensure safety of maintenance department – and that required records of maintenance, inspection and repair are maintained.

 

Oversee safety training, discipline and corrective action for drivers.

 

Implement/oversee safety awards programs.

 

 

Strategy 5: Effectively Deposing the Bus or Truck Driver

 

  • Drivers have egos too... Consider whether you can use that ego to your advantage. Get the driver to boast of his qualifications. Have the driver admit that he considers himself a safe driver. Confirm that his profession is driving and that he takes it very seriously. Cover his training, and accident/legal history.

 

  • Work the driver through truisms on safety. Have him give admissions that when you establish his negligence later, you can use against him – at trial or in the same deposition.

 

  • Be thorough. Take your time. Save critical event or other issues for late in the day, when you are more likely to get an honest or otherwise useful answer – unless instinct tells you otherwise.

 

  • Test information received in other depositions and discovery against the driver. Have the driver explain safety at the carrier as he understands it, and company policies and procedures. Use the documents obtained in the case to test his knowledge of policies, regulations, etc.

 

  • If there is tension or conflict between the driver and carrier, safety director, dispatcher, or others probe it, and exploit it. Have the driver cover his disciplinary history, driver history, and employment history in detail.

 

  • Find out if the driver was forced to cheat – if you suspect your driver is a victim of an unsafe corporate culture, give him a chance to be a good guy, to make amends, and to blame the company for his harming your client… Drivers are human, and they work under stressful and unpleasant conditions – elect which way to go – sometimes being the driver’s buddy yields more Gold than being his adversary. Everyone operates differently, but in Kentucky, depositions are fairly civil – my demeanor is professional and friendly. That can change as needed, but generally going in and offering a person a chance of “redemption by adverse admission” has never hurt…

 

  • The above notwithstanding… still, with respect to every negative fact in the driver’s history, from disciplinary actions to accidents, prior positions, etc., consider whether to exhaust the incident prior to discussing the crash or other critical case events, or to return to that later. This requires you to take a pulse – is he going to give you more as a buddy? A feeling that such is likely will lead me to talk about safety and the accident before taking him through his history and risking offending him.

 

  • With respect to driver history and discipline, ask whether each incident truly occurred, if the discipline was fair, if discipline is equally enforced against others, etc. This can be done professionally, explaining that his entire driver history is a topic that must be covered for your client as a litigator but is not meant to embarrass or harass; this technique can actually disarm some deponents and yield helpful discovery. If it fails, and the witness bristles, such can be just as good for the case – a defensive driver minimalizing the importance of prior safety or other violations in his record should work well to anger the jury. Be relentless, making the driver answer your questions, whether the demeanor is as friend or foe.

 

  • Find out whether your Driver was actually qualified for Interstate Driving (FMCSR Part 391.11(b)). Have him explain all of his driver training and experience. Requirements for a Commercial Driver’s License to consider covering with him are:

 

Must be 21 years-old or older.

Is able to read and speak English sufficiently to converse with the general public, understand highway traffic signs and signals in English, respond to official inquiries, and to make entries on reports and records.

 

Can, by reason of experience, training or both, safely operate the commercial motor vehicle.

 

Is physically qualified (Sub Part E of the Reg. and 391.41(b)(6) – high blood pressure can disqualify along with a host of other conditions).

 

Has one valid CDL.

 

Has furnished his employer with a list of violations other than parking tickets covering the last 12 mos.

 

Is not disqualified to drive a CMV.

 

Has successfully completed a driver’s road test and been issued a certificate of it (Sec. 381.31) or provided an operators license or road test from a prior employer to his current employer.

 

In close, truck and bus cases are not auto cases. Be wise – be prepared – and be relentless!

 

 

 

© Lange 2014