Litigating truck accident cases under Texas law: A complete walk-through by attorney Michael Grossman.

Most people believe that when an accident with an 18-wheeler happens, the trucking company is obligated to pay the victims fair compensation. In reality, you must hire an attorney and make them pay. While every bit of an attorney's leverage in negotiating with the trucking company depends on the lawyer's ability to convince a jury to hold the trucker accountable, there is a long road between your accident and the courtroom. That road is called 'litigation." Litigation is the process of filing suit and using the authority of the court to make the defendant do what you want them to do. Litigation is competitive, highly technical and nuanced, and is as much an art as it is a science. If your lawyer does not know how to navigate through this process, he can take even the best case and turn it into a loser.

In this article, were going to talk about how truck accident litigation works and the techniques used by a good lawyer.

Questions answered on this page:

• What are the steps in the litigation process?
• How does each venue work?
• What are the differences between each litigation venue?
• Which litigation strategy is right for my case?
• How long with litigation take?

Pre-Trial and Discovery

The actual litigation begins when your attorney files a Plaintiff's Original Petition, which is the official name for a lawsuit. Essentially, this document explains the basic facts of the case, who you are suing, on what grounds you are suing, and what evidence you have to support your claim. In response, the trucking company's attorney will file what is known as the Defendant's Answer. This document is their reply to the allegations and evidence presented in the Original Petition. In layman's terms, you are saying why you think they injured you and are responsible and they usually respond by denying everything and essentially saying, "Oh, yeah? Prove it."

The main thing that you need to understand is that court cases are very formal. In order to ensure that your claims are truthful and that the trucking company isn't being unfairly asked to pay for something that is not their fault, the default position of the court is to assume that the trucking company is not at fault until you can prove otherwise. Further, the defendant in any case has the right to argue that you are wrong or that there is some technical reason that they should not have to pay you for your injuries. But rather than just let both sides of the case dump a bunch of unfiltered opinions and accusations at the feet of the jury, litigation is the process by which each party has an opportunity to scrutinize the other, ask the judge to play referee, and, ultimately, out of the litigation process, it will be determined what facts and evidence the jury is allowed to hear about.

That last bit is important. Even if you have the best case in the world, if the defendants can find some clever way to suppress your evidence or keep a jury from hearing from your key witness, the case can be ruined. Again, having a lawyer who can shepherd you through this process is gravely important.

Now, it should be pointed out that our attorneys do not like to get hired in a case and immediately sue everyone under the sun. Instead, we prefer to investigate thoroughly and then file suit once we know who did what. The court likes this too. Most judges would rather you have done your homework before putting the file on their desk, rather than using their courtroom as the lab where you conduct your experiments. Sometimes, this may not be feasible and your lawyer may need to file suit immediately. Again, though, we try to avoid that, and usually do.

After you've filed suit, the next thing that happens after the Defendant's Answer is the defendant will file a Motion for Summary Judgment, which is an official request asking the judge to throw your case out. These MSJs are hardly ever successful, and it's unlikely that a defendant's MSJ will be honored by the judge. Even if the defendant knows that there is almost no chance of having a court rule in their favor on the motion, they think that it doesn't hurt to ask the court, because if the court rules in their favor they win without have to go through the rest of the litigation process and they lose nothing if the motion fails. This procedure is a quick way for courts to simply toss out lawsuits that have no merit. While the bar that your attorney has to clear to prevent summary judgement is pretty low, experienced attorneys will make sure that there is as little risk as possible of the case being tossed out on summary judgment, because once that happens, the case is over before it even has a chance to be fully developed.

Inexperienced attorneys will often make mistakes in their initial filings, which expose an otherwise valid claim to summary judgement, which is part of the reason that it is very important have an experienced truck accident attorney on your side.

Once your case survives summary judgment, it proceeds to discovery. During discovery each side in the case has the opportunity to subpoena witnesses and have them testify under oath and to engage in written discovery, which is that back and forth process of requesting information. We typically want info from the trucking company, such as their policy manual, training manuals, maintenance records, etc. Further, in truck accident cases, we'll definitely want to take the deposition (formal interview under oath) of the truck driver, his supervisors, company safety directors, and any eyewitnesses to the accident.

Often it is a pretty simple matter for an experienced lawyer to establish the truck driver's fault, the damages that 18-wheeler accidents inflict on their victims can range into the millions of dollars. The average trucker simply has no way to pay that money. However, trucking companies are required to carry $1 million in insurance, but sometimes these policies contain questionable language that implies that the money only covers the trucking company, not necessarily the driver. To get the money necessary to make our clients whole, it's not enough to just prove that the driver did something wrong, we have to expose some negligence on the trucking company's part.

In our experience, the vast majority of truck drivers are responsible professionals, whose skill on the roadway makes them some of the safest drivers around. They make up a very small minority of the drivers involved in truck accidents. The vast majority of truck drivers involved in injurious truck accidents have some red flags in their background that should have been picked up on by the trucking company before the driver was hired. When trucking companies hire dangerous drivers, they assume responsibility for the harm that those dangerous drivers cause.

A good portion of the deposition process is spent linking the dangerous behavior of the truck driver, which led to your accident, to improper hiring and safety policies within the trucking company. As you can imagine, the lawyers for the trucking company never come out an say, "Yes, my client intentionally hires dangerous drivers, with checkered pasts, who should never be allowed behind the wheel of a big rig." So we have to present evidence that says that.

During this phase of litigation in past cases, we have uncovered truck drivers with long histories of alcohol and drug abuse, criminal records, and even one company whose director of safety was serving time in jail for drunk driving, while our litigation was ongoing. It becomes very hard for a company to argue that a company takes safety seriously when their safety program is overseen by someone who has an Federal Motor Carrier Safety Administration life-time ban from holding a Commercial Drivers License, but unless your lawyer can discover that kind of bomb, he'll never be able to drop it on the defendants.

If the trucking company's insurer is still feeling good about their case after the discovery phase, then most likely litigation will continue. However, many times, things are going so poorly for them during discovery, and we uncover so much dirt on them, that the defendant's lawyers might reach out and begin settlement talks. If the number is agreeable to both sides, a settlement is reached and the process stops right here. However, other times the defendant's still feel good about their case, and litigation proceeds.

Mediation

We all have seen personal conflicts that need a neutral third party to come in and try to play referee and get both sides to see past their differences. Mediation incorporates that principle into the litigation process. In many jurisdictions, mediation is required before litigation can proceed to a trial. This makes sense, because it is usually better for both sides to reach an agreement before trial if that is a possibility.

Before mediation begins, the mediator learns the details of the case on his or her own, and then the parties meet. Among the two parties will be the plaintiff and the defendants, as well as their lawyers. This means that should your truck accident case get to mediation, your presence will be necessary in order to ensure that mediation goes successfully. After all, the give and take negotiations go much more smoothly if the parties in the dispute are present to voice their concerns and desires in real time. After all, attorneys work for their clients, not the other way around. While lawyers do offer invaluable professional advice, including assessing the value of your case, ultimately, no lawyer can force you into a settlement without your consent.

Mediation typically occurs at a lawyer's office, and after a brief time together with introductions and generalities, the parties go into separate rooms. The mediator then shuttles between the two groups, offering advice, making suggestions, and conveying offers and counteroffers. The process could last all day. This process sometimes fails quickly if the parties are too far apart in their positions. At that point, the mediator declares an "impasse" and the mediation is over. However, a fair bit of the time an agreement can be reached, which would result in a settlement, ending the litigation process right there.

Trial

If mediation and the negotiations fail to resolve the dispute, your truck accident injury case will ultimately end up going to trial. This happens in fewer than 10% of legal actions, meaning that the odds are your case will never get this far. However, there are some insurance companies who adopt a blanket policy to take every single case to trial, in an effort to drive of the costs for the victims and deter future lawsuits.

Another reason some companies want to drive up the costs of your case is that there are a lot of law firms out there that claim to be personal injury attorneys, but do not actually have the resources to see a case all the way to trial. If your lawyer does cannot pay the costs of necessary expert witnesses to strengthen the evidence in your case, this defense strategy can undermine your legitimate claim. That is why it is important to have an experience truck accident attorney who not only has the resources to see your case through the litigation process, but a long track record of winning, once a case makes it to court.

The trial begins after a jury is impaneled. Then the lawyers begin making their arguments. Witnesses are called, cross-examined, and evidence is presented. The case may last a few days or even longer. After the parties close, the jury goes to deliberate. After they take as long as they need to come to a decision, they enter a verdict. Then, that's it. The case is over.

This is where cases are truly won or lost by lawyers. The best evidence can all come to nothing if the case isn't being managed by an experienced courtroom lawyer. Law schools do not really train lawyers to practice in the courtroom, and so attorneys must learn their craft over years of experience. For instance, when we are undergoing a surgery, would most of us want someone who is performing that surgery for the first time, or someone who has done it so many times that they've lost count?

You're probably wondering, how long does this whole process take? As you can probably gather, it depends on the individual case. Some cases settle very early on in the process and last a few months, while others that go all the way through a jury verdict can take a bit longer. While this may be vague, cases are as unique as the people involved in them and no two are ever exactly the same. Our lawyers do their absolute best to balance the victims need to get compensation for their often, life-altering damages, while at the same time never moving so quickly that it might endanger a client's claim.

While the purpose of a medical surgery is to make someone physically whole, a lawsuit is designed to help remedy someone for financial, physical, and psychological damages that they have suffered. For the lawyers at Grossman Law Offices, the courtroom is akin to a surgeon's operating room, where they are at their best and using all of their considerable skills, training, and experience to fight to fix lives.

You can be confident that, whether you are in Dallas, Houston, Little Rock, or anywhere else across the nation, if you hire Grossman Law Offices for you truck accident claim, you have trial lawyers on your side who have tried countless cases before juries, and won. If your case goes before a jury, you'll know that your lawyers have a track record of success because they have the education, skill, and 25 years of experience of trying cases before juries all over the country.

How your case resolves itself depends on many factors. How you wish to resolve it will be one of the most important. You need attorneys not just who can fight for you, but who can advise you about your case. That process can begin today. Call us ((855) 326-0000) for your free consultation about your case, and how we might be able to resolve it for you.

If you need more information on litigating your truck accident case, you may be interested in:

• An In-Depth Look at Truck Accident Mediation
• A Closer Look at How Truck Accident Trials Work
• 5 Ways to Ruin Your Truck Accident Case