Truck accident cases can be pretty complex. Read this article and you’ll understand exactly how they work:
We usually start our “how the law works” articles with some semblance of a thought-provoking intro designed to challenge the way you think about the law by providing a new perspective. For this article, there is a lot to cover and a lot that you need to be forewarned about, so we’re instead going to err on the side of being frank.
In that vein, here’s what you need to know:
- Truck accident cases don’t work the way you probably think they do
- Most lawyers that advertise for these kinds of cases have no clue how to handle them correctly
- The difference between a valuable case and a worthless case are the decisions you make in the early stages of your case.
As such, in this article, we’re going to explain truck accident law in less of an academic fashion and more like the warning sticker on the side of your lawnmower. Just the same way that the company who made your lawn mower doesn’t want you to lose a finger, we don’t want you to do irreparable damage to your case. Despite the fact that this article is very much so a cautionary tale, we will still explain everything you need to know about truck accident law in plain English, from start to finish, including information about:
- When you can and can’t sue trucking companies
- What type of compensation you can receive
- Legal strategy (what makes your case a winner or loser)
- The laws that govern truck accident cases
- A walk-through of the lawsuit process
- Hypothetical accident scenarios and what the law has to say about each
- Fatal accidents – how they are different from injury cases
- What happens when the truck driver is injured
Additionally, it should be noted that we’ll use the phrase “truck accident” numerous times herein, so, first things first, understand that the info on this page applies to:
- flatbed trucks
- dump trucks
- any other heavyweight commercial vehicles
If it’s big enough (or heavy enough) that the Federal Motor Carrier Safety Administration takes notice, it’s included in this article, and it’s important to note that the law treats it (and the accidents it causes) differently than regular cars.
But before we delve into the pulp of this article, we must offer a disclaimer and/or warning:
Truck accident cases are probably the least understood area of personal injury law. Unfortunately, the main source of the confusion is lesser-experienced injury lawyers. They often put out false information on the web, and far too many of these lawyers get involved in truck accident cases and never realize how little they know, or they realize it only after the damage to their client’s case is done.
Why do we tell you this? Well, with nearly any other area of personal injury law, your case is usually salvageable, even if you or an inexperienced attorney make some missteps early on. But with truck accident cases, once the damage is done, you will likely never be able to recover. And since hiring the right lawyer to help you with your truck accident case is the first big hurdle that you’ll encounter, we would be remiss to not talk about the conduct of some unscrupulous attorneys and how you can save yourself a bunch of trouble by knowing what to look for.
Have you ever noticed that nearly every law firm out there advertises the fact that they take truck accident cases? If you think about it, that’s a bit peculiar because:
- There aren’t very many truck accident cases to begin with. Car accident cases are far more common.
- Statistically speaking, most truck accident cases are not the fault of the truck driver, so by definition most truck accidents don’t precipitate a case that a lawyer can can even do anything with.
- Truck accident cases require approximately 5 times the manpower and financial resources as car accident cases. Most law firms who exclusively handle fender-bender car accidents (and lots of them) are just not cut out to handle the detail-oriented, painstaking work that truck accident cases demand.
So why, then, are all of these law firms advertising for your truck accident case? The simple answer is that truck accident cases can be lucrative for a law firm – the key word being “can.”
But beyond the money aspect, lawyers like being able to save the day for their clients. It’s a great feeling. The sad reality in non-trucking cases is that most defendants who cause major injuries will never have enough financial resources to fully pay for the mistakes they make, which is as disheartening to a lawyer as it is to his client. But trucking companies are a class of defendants who typically do have the resources to pay for the harm they cause. For all the right and noble reasons, that is an enticing concept to lawyers, yet it can also be perverted, and far too many lawyers think to themselves, “Even though I don’t exactly know what I’m doing, I can still settle the case for 20 cents on the dollar and make a good fee.” This practice is as ugly as it is unfair to you, the injured plaintiff. They’re essentially giving up your potential compensation just because it’s easier to settle for less.
In order to avoid this, you need to find the right lawyer; one who wants your truck accident cases not just because he can make legal fees but because he is driven by the idea that your case is a chance to do what he does best against a tough opponent. And you may be thinking, “This is the part where you tell me about why I should hire Grossman Law Offices,” but you’d be mistaken. Yes, our firm is very passionate about helping truck accident victims, and we’d welcome an opportunity to help you – nobody is arguing that. But the primary focus of this diatribe is to encourage you to find experienced legal counsel, whoever that may be. If we didn’t have to be concerned about defamation lawsuits, we’d make a list of lawyers who we know for sure that you should avoid. But since that’s not really an option, the next best thing a checklist that you can use to make sure that you’ve found a lawyer who is amply qualified. A good truck accident lawyer should:
- Have handled at least major 15 truck accident cases and be able to prove that he has
- Be able to explain to your satisfaction exactly how your case will work, what the known and unknown elements of the case are, what the best and worst case scenario may be, and you should notice him frequently using phrases such as, “Good question. I had a case where that happened before, and here’s what we did…”
- Make himself available to you from the beginning. If he doesn’t give you his cell phone number, that’s a bad sign. Truck accident cases are long, hard-fought battles, and your lawyer will need to communicate with you throughout the process.
Truck accident cases are far from a walk in the park, so do not let a lawyer with anything less than a few dozen similar cases under their belt (we have won more than 100, for example) represent you in a truck accident case, or you’ll pay the price.
Now that we’ve gotten that out of the way…
The best place to begin is with a summary: Truck accident cases are challenging and you should fully expect to the defendant truck driver and his employer to fight you because they have too much money on the line to even budge an inch.
To explain the “whys” and “hows,” we’ll start by addressing some of the common questions that we field.
What is a truck accident case?
- Simply put, truck accident cases are personal injury and wrongful death claims against truck drivers and trucking companies. These cases are pursued when the conduct, actions, or inaction of a trucking company or truck driver causes an accident that results in physical harm. If your accident only resulted in damage to your vehicle, the claim you’d pursue is based on a completely different area of the law, which we will not address in this article.
What laws are these cases based on?
- As we mentioned, these cases are essentially just injury and wrongful death cases. The main point to be made here is that there is no unique area of the law called “truck accident law.” You can search high and low and you will never find a law that says, “When a truck driver causes an accident, he or she is obligated to pay the victim X amount of dollars.” That doesn’t exist. If our laws were that specific, we’d have millions of laws tailored to every conceivable scenario, and the whole thing would be impossible for anyone to wrap their hands around. Instead, injury law is based on general principles, which your lawyer must be capable of applying to your specific injury scenario.But where things get interesting is that even though there are not truck-specific injury laws, there are indeed truck-specific laws. So how does that work then? Think of it like this: the general injury and wrongful death laws serve as the jumping-off point by which your claim is able to be pursued, but the truck-specific laws are invoked to illustrate the seriousness of your case.
- For example: General personal injury laws says that you can sue someone when they are negligent. You’ve sufficiently proven that the defendant (the person you’re suing) is negligent when you show that they did something unreasonably risky that could foreseeably cause an injury. So if you were driving down the road and a piece of heavy equipment fell off of a flat-bed trailer and struck your car causing major injuries, your attorney would claim that the truck driver was negligent, which is consistent with generic personal injury laws. But to help illustrate the extent of the trucker’s negligence, he would also employ some truck-specific laws. In particular, he’d likely reference FMCSA law § 393.102 or FMCSA Driver’s Handbook Guideline section 2.3, both of which state that a truck driver is required to make sure their cargo is properly secured. Since the court requires you to prove that it was foreseeable to the truck driver that his conduct might cause injuries, invoking the aforementioned truck-specific laws allows you to tell the court, “Here is a codified law and a regulation that the truck driver agreed to abide by when he got his commercial license, and both warned him that this could happen. Therefore, he clearly could have foreseen the that his failure to secure the cargo would result in harm.”The take-away is that even though there are not truck-specific injury laws, there are truck-specific laws, and they matter in an injury case.
What must be done to win a truck accident case?
- In order to win a truck accident case, you (your attorney) must:
- Communicate with the defendant and let them know that you intend to bring a claim against them
- Collect evidence about what happened during the accident and what caused it
- Calculate the cost of your losses (and future expenses)
- This includes getting appropriate medical attention so that you can adequately account for all injuries
- Give the trucking company a sample presentation of the evidence to illustrate why you believe a jury would make them pay
- Prove the value of your losses
This can all either happen informally out of court or you can file suit against the trucking company, which puts the case in court. Either way, you must always act as if you intend to try the case, and prepare accordingly. Further down the page we walk through each of the above-mentioned steps in vivid detail.
What determines the value of a truck accident case?
- The only real answer to this question is that your case is worth what a jury of your peers says it’s worth. Period.
- The factors a jury considers in determining the value of your case are:
- The financial costs (such as medical bills and loss of income) you have already incurred
- The financial costs you will incur in the future (such as medical treatments you’ll need years down the road)
- What the jury thinks your non-economic losses (such as pain and suffering) are worth. This is assessed on a case-by-case basis.
- The egregiousness of the defendant’s conduct. If the truck driver made an honest mistake, the jury will make him pay just enough to get you back on your feet. If the truck driver was high on meth and he doesn’t show any remorse, then the jury will make him pay dearly.
- The county where the case is filed is another important factor. Just the way that every state in America is a little bit different, so too is every county within a given state. Since the jury is who decides what the case is worth, and since juries are regular people, the demographics of the county where the suit is filed is one of the biggest factors in determining the value of the case. This can have a lot to do with cultural distinctions and political ideologies, or it can simply be a matter of practicality.
- For example: If an 18-wheeler accident happens in Galveston, TX, the injured party may get all the medical attention they need, mere blocks away from the accident scene via UTMB’s local medical college. On the contrary, if the same type of accident happens in West Texas, the injured party may be initially taken by ambulance to a hospital in Midland and then transferred via helicopter to an expensive hospital in Dallas or Fort Worth. So, for reasons having nothing to do with the jury’s personal views, the actual cost incurred can vary wildly simply because of the resources available in that county. Thus, the case in Galveston is coincidentally worth less than the case that happened in Midland. Not to mention that poorer areas will feature jurors who assume a broken arm imposes X costs on a victim, while jurors in wealthier areas will assume the same injury costs considerably more to treat.
- The county where the accident happened
- The county where the defendant operates out of
- The county where you live
- When an accident occurs, there are three factors that must be considered when determining the county to file the case in:
You can’t just choose arbitrarily; you must be able to justify to the court why you want to file suit in one county vs. another. Nevertheless, this is an important choice since selecting the wrong county can easily cut the value of your case in half. Juries vary that wildly.
- The factors a jury considers in determining the value of your case are:
What if the injured party just wants to settle?
- Right now you may be thinking, “Okay. I get it. The jury determines the value of my case. But I don’t want to go to trial, I just want to settle. How much is my case worth if I want to settle it?”Make no mistake about it, the trucking company who hurt you is willing to settle your claim right now… as long as you’re willing to settle for 10 cents on the dollar. If that’s what you’re interested in, just pick up the phone and call the trucking company’s insurance adjuster. They’d be more than happy to settle with you.But if you want fair and reasonable compensation, you have to treat your case like it’s going to trial, even if it doesn’t. But why? Because negligent trucking companies are afraid of getting in front of a jury, and rightly so. If you can show a jury that the truck driver was at fault, that’s bad news for them and good news for you. That scares them. If, however, the trucking company doesn’t think you’re willing, prepared, or able to take your case to trial, what do they have to be scared of?If your attorney does a good enough job showing them that your side is ready and willing to try the case in court, the trucking company will make a settlement offer to keep that from happening. In other words, by planning for court, you actually increase the likelihood of getting a settlement and avoiding court.
Why Are These Cases So Challenging?
- Aside from what was already covered, here are three reasons why trucking accidents cases are challenging:
- Trucking companies have a financial incentive to fight you. You probably already know that these cases have significant financial value, and that’s because commercial vehicles require insurance policies much larger than your average car insurance policy – or even a homeowner’s insurance policy. This is required by both federal and state law. Since the trucking company’s insurance carrier has a legal duty to protect their client, it’s a sure thing that they’ll contest your claim for compensation because of their legal obligation to do so, but also because they’d rather keep their money than pay it to you. They only pay you voluntarily when you can show them that it’s cheaper to settle than face you in court.
- The legal concepts in these cases are much bigger than normal negligence cases because the truck driver that caused your accident probably doesn’t own his 18-wheeler or semi-truck. If you’re in an accident with a regular driver, they probably own their own vehicle. Even if they’re making payments on it, you don’t sue the Nissan dealership or the bank financing their car, you sue the driver. Now, imagine you’re hit by a car where the driver had borrowed it from his friend. Who’s liable, the driver or the friend? What if the friend lent the car in full knowledge that the driver was no good behind the wheel? Does that change anything? Which insurance company is responsible? Should you sue the owner of the car and then the driver, the other way around, or neither? These are questions that are at the core of commercial vehicle cases since the truck is normally owned by someone other than the driver.The trucker’s employer bears legal responsibility for their driver, provided you can prove that their relationship warrants such responsibility. That’s a bit tougher than it sounds because, as we’ve said, the trucking company isn’t exactly chomping at the bit to take responsibility for an expensive accident, and they will be actively working against you by trying to distance themselves from the driver. They would rather try to portray the driver as an independent contractor (which means he’s solely responsible for the accident) than agree that he’s an actual employee.
- There are a lot of people fighting in a truck accident case.
- You (the plaintiff)
- Truck driver (defendant)
- Trucking company (defendant)
- The trucking company’s insurance carrier
- The trucking company’s defense attorney
- Potential adverse witnesses that can damage the case by giving a bad account.
- For example: We had a case recently where truck driver one rolled through a stop sign into the path of truck driver two, killing the second driver. We represented the family of the deceased truck driver. The police, the district attorney who prosecuted driver one, and all of the physical evidence showed that driver one caused the wreck. However, there was an eyewitness who agreed with all of the above, except that he still somehow felt the decedent caused his own demise, and this witness was incredibly vocal with his opinion. He took an otherwise indefensible case against the driver who ran through the stop sign and gave the defendants some basis on which to defend it. We won anyway, but he sure did make it challenging. A witness with an ulterior motive or an axe to grind can cause major headaches for you.
The trucking company’s insurance carrier is generally looking for a way to avoid paying their full policy limits and the defense attorney for the trucking company is paid on an hourly basis. These two parties control when and if they make a settlement offer but, as you see, they both have an incentive to drag the case out for as long as possible. To sum it up, there are a lot of people fighting against you in your case and nobody is going to give up without a struggle. Click here to see a list of transport companies that have been sued.
Using experience as a guide
Naturally, one really good way to illustrate how the law works is to provide examples. We’ve seen many accident scenarios over the years, and below we will showcase some common accident fact patterns, injury types, and accidents involving specific vehicles, and link you to articles for further reading which will tell you how the general injury laws apply to those situations.The bottom line is that even though the same laws apply to all of the scenarios highlighted below, the subtle differences make all of the cases quite distinct from one another.
Common Accident Scenarios
Here are some common fact patterns that we’ve seen. There are lots of different kinds of accidents and, sometimes, it’s the truck driver who was hurt. Read these articles that talk about the most common fact patterns in trucking accidents how you can prove negligence in each of them.
- Common Fact Patterns in Truck Accidents
- Rear-End Collisions with Trucks
- Underride Accidents with 18-Wheelers
- Tire-Blowout Accidents
- Loading Dock Accidents
- Accidents with Parked 18-Wheeler Trucks
- Pedestrian Accidents with Semi-Trucks
- Truck Accidents in Construction Zones
- Truck Accidents Involving Hazardous Cargo
- Accidents With Intoxicated Truck Drivers
- Sideswipe Collisions with Semi-Trucks
- 18-Wheeler Runs Red Light
- Truck Accidents Involving Unsecured Loads
Common Types of Injuries & Losses
Every accident is different and there are many types of injuries, both minor and major. This topic can be broken down into two main sections: personal injury & and property damage. When an accident causes you an injury, be it minor or major, that’s called a personal injury. When an accident destroys a car or a home, for example, that’s called property damage. You can sue for recovery in both cases.
- Read more about common injuries in trucking accidents
- Personal Injuries
- Broken bones
- Severed or amputated limbs
- Severe bruising and contusions
- Internal hemorrhaging and organ damage
- Back injuries
- Road Rash
- Brain injuries (click link to read more about traumatic brain injuries)
- Property Damage
- Read more here about fatality cases:
- Understanding your opposition
- Do trucking companies have to compensate families for their loved one’s death?
- Do insurance carriers have to pay for the funeral expenses?
- Which family members can file suit?
- Damages and compensation in these cases
The type of truck you’re struck by makes a big difference in how the case is handled. For instance, trucks hauling hazardous materials will have different insurance policies than regular 18-wheelers, moving trucks are often only insured by regular car insurance policies, oilfield trucks often self-insure for the first $250k in losses, delivery trucks usually involve some sort of outsourcing which leads to the question of who was actually in charge of the driver and therefore responsible, claims against mail trucks must be filed in a special court, etc. Again, the type of truck that hit you is a big factor in determining how the case is processed.
Here is a list of articles that describes most of the commercial vehicle types and, chances are, your accident involved one of them. Click the article to read more about each particular vehicle type and how we would build a case against the truck’s operator.
- Common Truck Types
- Less-Common Truck Types
- How the type of vehicle that hits you determines your legal strategy
Insurance obviously plays a huge role in a commercial vehicle accident case. Here’s how it works:
- The trucking company often has a significant net worth.To protect themselves, they buy liability insurance coverage.
- Liability coverage is one of many forms of insurance coverage, and it’s sort of a financial bodyguard. An individual or company thinks they may potentially do something that will cause someone else to incur expenses and losses. The business or individual knows that the person they caused to incur the expense could sue them, so they pay an insurance company to take financial responsibility for their mistakes. The insurance company charges the individual or company some amount of money in the form of monthly premium payments. The insurance company hopes that the individual or company they insure will never cause harm to anyone, in which case the insurance company pockets the insurance premiums and never has to pay anything out. But if the individual or company does in fact get sued, the insurance company has agreed to act like a shield and protect the individual or company’s money by putting the insurance company’s own money on the line.
- They’re not required to pay you. Liability coverage only pays out when the liability of the insured is proven. This burden is met either:
- When a jury says the insured is liable
- When the insurance carrier voluntarily concedes liability
A a helpful analogy to understand this concept is to think of insurance carriers as a presidential candidate. When a jury says that a defendant is liable, that’s like the votes being tallied and the losing candidate knows they lost. However, before there the votes are tallied, a candidate can choose to concede the race and voluntarily admit they lost, which is what happens when an insurance company concedes liability and settles.
- Liability claims are fundamentally different from “eligibility” claims, such as life insurance claims. With eligibility-based claims, the claimant must only show that they meet the eligibility criteria, and then the insurance carrier is required to make prompt payment. With a liability-based claim, the insurance carrier exists to protect the insured, not the claimant, so they have an obligation to fight the claimant, and must only pay out under the circumstances outlined in the bullet points above.
- The insurance carrier is only on the hook for losses up to the value of the policy purchased by the insured. This is referred to as “policy limits.”
For example: If the trucking company that hit you has $2 million in coverage, but they caused you to sustain $3 million in losses, the insurance carrier is usually only exposed to $2 million of potential payout. The rest of your losses must be addressed by suing the defendant for their own assets.However, it should be noted that most defendants with considerable assets to protect usually buy insurance policies that are worth more than their own assets.
- For example: If a trucking company has $10 million in cash sitting in the bank, they would likely purchase $15 million in insurance coverage. In order for their own $10 million of assets to be in jeopardy, they would have to cause more than $15 million in losses, which is pretty hard to do. They’d have to kill or maim multiple people or really anger a jury to warrant a claim in excess of the value of the insurance policy.
- At the risk of somewhat running afoul of what we just told you, there is one special situation wherein an insurance carrier must pay more than the policy limits. We’ll explain this in a subsequent article (to be provided later… it’s a work in progress)
- The minimum policy limits for commercial vehicles are regulated by the federal and state government. The minimum amount of coverage depends on the type of vehicle and what it’s transporting. The minimum coverage usually required of a commercial vehicles is $750,000, but for some carriers the minimum insurance coverage is $5,000,000. Again, the type of vehicle you were hit by matters.
Even though the specific coverage varies, all commercial vehicle liability policies are at least fairly valuable (statistically speaking, most are over $1 million), so there’s quite an incentive for the insurance company to try and fight your claim. You might call it “aggressive protection” on their part. The insurance company simply doesn’t want to pay out $1,000,000 for an accident, even if their driver was completely at fault. If there’s a way they can out wait you, outspend you, out litigate you, or beat you in trial, rest assured they will at least try to fight you.
Below you’ll find some additional information about filing a claim with the trucking company’s insurance carrier, what kinds of tactics the insurance company will use against you, and just some general knowledge to help you deal with them. If you’re represented by legal counsel, your lawyer will handle the insurance company and their adjuster; but if you try to talk with them yourself, you’ll find that they’re not nearly as honest as all the TV commercials make them out to be.
- Basic information for understanding insurance policies
- What you need to know about insurance companies
- Tricks and tactics used by insurance adjusters
What causes truck accidents?
Well, we mentioned it a few times earlier, but it’s essentially negligence – the failure to do something that an offender was legally required to do. This is a major topic all by itself, but we’ll go into the basics here. Keep in mind that you can’t just accuse a trucking company or their driver of being negligent, you have to prove that to a jury.
This can be anything from a truck driver running a red light to not getting enough sleep the night before and dozing off at the wheel. Now, there are theories of negligence and arguments accepted by courts, and you must, of course, show how the trucker’s particular conduct fits the mold of a court-accepted theory of negligence, but we’d rather offer a practical explanation of how negligence causes trucking accidents as opposed to espousing convoluted legal theory. The bottom line, though, is that the specific misconduct that caused your accident will dictate the arguments you make against the defendant and the tactics they’ll use to fight back against you.
A large portion of trucking accidents are caused by truck drivers themselves, be it distraction, fatigue, intoxication, etc.
- Causal Factors & Theories of Negligence
- Good ideas for trucking companies to avoid accidents
- Here some articles that talk specifically about trucking accidents caused by truck drivers
- Sometimes, truck accidents are caused by things outside the driver’s immediate control, and these articles talk about how to address those types of wrecks:
- Further, a trucking company can themselves be responsible for causing an accident. As we mentioned earlier, trucking companies can be held liable for the negligence of their employee, the truck driver, and this is a form of indirect or vicarious liability. However, there are also things the trucking company can do which makes them directly liable because their negligence caused the accident. In other words, on one hand you can sue a trucking company for the conduct of their employee driver, but on the other hand you may sue them for their own conduct. Here are some examples:
- A trucking company might negligently hire a truck driver, and that means that they didn’t do their proper diligence in the hiring process. For example, you’d expect a trucking company to make sure their driver was licensed, trained, drug-free, and physically fit before they hire the applicant to drive a big rig. If they don’t do that and let just any old regular Joe behind the wheel, that’s negligence on their part. Read this article to learn more:
- Similarly, a trucking company can be accused of making unqualified drivers do a particular task. Now, this is different from negligently hiring a truck driver. The difference is that negligent hiring happens when the applicant is first being considered for employment, while using an unqualified driver occurs while the driver is already an employee and the company simply assigns him to do something he shouldn’t be doing. So just the same way that a private in the Army is not qualified to partake in a Special Forces operation, a truck driver who is licensed to drive a regular 18-wheeler is not necessarily qualified to drive a haz-mat vehicle. Assigning a driver to drive something he is not properly licensed or trained to operate is a form a negligence.
- Lastly, there are accidents caused by over-worked truck drivers, which also reflects on the trucking company. Technically, this goes hand-in-hand with the point above about “fatigued” truck drivers since it’s the duty of the trucking company to make sure their drivers are keeping a safe schedule. If they push or force their drivers to stay on the road longer than the FMCSA allows, then that’s negligence as well. We recently had a case involving a fatigued truck driver whose employer had him work 72 hours from Sunday to Thursday. The accident happened on Thursday, and had he not been involved in an accident, it’s presumable that he would have hit 80+ hours on the clock that week. Read more about this topic by clicking the article below.
Evidence & Investigation
In this section, we’re going to talk about the forms of evidence you’ll need to gather and preserve for your case and then subsequent investigation that will need to take place. You’ll use all of these tools to prove liability and losses, which are the next sections. But before we go over that, it’s important that you understand how the evidence gathering process works:
Spoliation Of Evidence
The most important step taken by an attorney once hired in a commercial vehicle case is to send a spoliation of evidence letter to the defendant who you will be suing. This is a written notice sent to all parties involved in an accident that forbids any evidence from being destroyed or “spoliated,” hence the name. Usually, this means that trucking companies aren’t allowed to demolish the truck involved in the accident, nor can they do any repairs or remove parts until your lawyers have had a chance to inspect the vehicle. By sending the letter, you can prove to the court that the defendant knew (because you just told them) of their duty to refrain from manipulating the evidence. More on this:
Black Box (ECM) Data
Just like airplanes, commercial trucks have data stored in a black box-type of unit on the vehicle known as an EMC. ECM stands for Electronic Control Module and it gathers important data about the truck like its speed, whether brakes were used, and whether anything in the engine was awry at the time of the accident. This lets us paint a picture of what happened at the scene of the wreck. For clarity sake, it should be pointed out that the ECM does not exist for the purpose of learning about accident details; it exists to control the engine. But in doing so, the ECM takes various readings from sensors on the engine, which it uses to meter the flow of fuel. It does not store this information forever, but each type of ECM will have its own proprietary functionality which includes some window of time that the data is stored. The takeaway from this is that you need to get to the ECM soon after the accident or the data can be deleted naturally, or it can be willfully tampered with.
The first thing that comes to mind when you hear about an investigation is the police, since they or the Texas Department of Public Safety usually conduct investigations and write reports for major traffic accidents. However, the police report isn’t necessarily the gospel truth, and they can be wrong. The biggest mistake people make with police reports is assuming that they’re a slam-dunk in terms of evidence. That’s wrong. You must take proactive steps before police reports can even be shown to a jury (police reports are not automatically admitted into court), and you must “prove up” the report via a certain process before they’re admissible in court as evidence. Read more:
Texas DPS Investigative Reports
The Texas Department of Public Safety wears many hats. As it relates to these cases, a division of the TXDPS known as the Texas Highway Patrol (otherwise known as State Troopers), handles accident investigations that occur on Texas highways. However, just because they are state police, that does not make their reports any more or less special than regular police reports, so the same shortcomings apply.
It should go without saying, but any kind of eyewitness testimony is going to be hugely important. Often times, the difficulty is simply determine what happened in a truck accident. However, you also need to know what to do with eyewitness reports that are damaging to your case. Often times, people remember things incorrectly.
Criminal Prosecution Information
If the truck driver who caused your accident is being cited with criminal charges, that can be used to your case’s advantage, even if there’s not a conviction.
Cell Phone Data
Cell phone distraction is something a jury definitely needs to hear about, and since most smartphones are constantly transmitting and receiving data, the truck driver’s cell phone is going to contain very useful evidence in your case.
Drug Tests for Truck Drivers
Clearly, drug tests and blood tests for truck drivers should already be conducted regularly, but that’s not always the case. Having these tests done ASAP after a trucking accident is absolutely imperative. Trucking companies are required to conduct drug testing following an accident that results in serious injury or death, but many trucking companies either conveniently forget to do these tests or they conduct the test and then have their lawyers try to keep the results confidential. Many of the accident cases we’ve litigated have involved intoxicated drivers, and you would not believe how hard trucking company lawyers fight to keep drug test results from seeing the light of day. Further, the authorities are supposed to conduct drugs tests following serious accidents, but, frankly, they rarely do. It’s sort of hit or miss.
Hours of Service Log for Truck Drivers
Over-the-road truck drivers can only drive so many hours in a given timeframe. Since truck driver fatigue is such a big problem, the federal government requires that truck drivers use a log book to keep track of their hours behind the wheel. It is incredibly common to find that a truck driver is breaking the law and driving more hours than allowable. It is equally common to find that they manipulate their log books, carry a set of “dummy” log books, or have a paper copy that they provide to police and a digital version that tells the actual truth. Your attorney must get his hands on these records. They are almost always a factor in these cases.
Truck Driver’s Medical History
Ultimately, the trucking company is responsible for making sure their drivers don’t have a history of health problems, but information like that is often overlooked. It’s important to get this information because it’s not something the trucking company will volunteer. When would a trucker’s medical history matter? We had a case once where a woman was killed when a truck driver fell asleep behind the wheel and caused a wreck. The trucking company tried to make it seem like this was a random occurrence that they could not possibly have predicted. When we obtained records they showed that the driver had a history of sleep apnea and seizures, and not only did his employers know about it but they condoned him lying on his DOT physical in order to maintain his license.
Truck Driver’s Fitness Assessment
Trucking companies often conduct their own internal fitness assessments to insure that their drivers are healthy enough be entrusted with their equipment. This driver’s fitness assessment is also hugely important in determining if he was healthy enough at the time of the accident. We represented a gentleman (in an unrelated injury case) whose job was to conduct such tests for a major trucking company. His employer was definitely doing the right thing by proactively seeking out potential trouble, but far too few trucking companies do this.
Truck Maintenance and Repair Records
The truck in your accident is going to be a huge part of the investigative process, and you might call it a big piece of evidence itself. Naturally, getting the maintenance and repair records (if there are any) is very useful. Many accidents are caused by tire blowouts, brake failures, steering failures, etc., so knowing the service history of a tractor or trailer is important. Further, many a truck driver has found himself being sued for causing an accident which was later revealed not to be his fault, the true culprit was whoever last worked on the truck, and the truck driver was just in the wrong truck at the wrong time. Obviously, having the service records helps safeguard against suing a truck driver who is actually innocent.
Truck Driver’s Background and Driving Record
Lastly, you want to get the truck driver’s personal background as well as his driving record, because that’s not only going to show a jury if he’s a poor driver, it will also help downplay his defenses, which helps your case.
Testimony Obtained from Depositions
The last part we’ll include in this section is about “depositions.” A deposition is simply when various people connected to your case are interviewed, under oath and on camera, about what happened. The sword swings both ways, though, so beware. You will also be deposed, and this is where the opposing counsel will try to extract “dirt” about your character when they interview people related to you, people you’ve worked with, etc. The most important thing to remember about depositions is to be prepared. You’ll also want an attorney who is well-prepared. We’ve seen dozens of attorneys fall apart when the camera turns on and their deposition begins because they don’t even know where to start. Here are some helpful articles about depositions and what to expect.
Once you have the evidence (are dealt a hand), you then have to use it (play the hand). Remember, no fact pattern or evidence is inherently “self-evident,” meaning that you still have to prove to a jury that the truck driver and the trucking company should be held liable.
The difference between negligence and liability is that proving negligence only establishes that the truck driver did something he wasn’t supposed to do. But proving liability means that you have to convince a jury that the defendants were not only negligent, but that their negligence was the main cause of your injuries and that they should compensate you for your injuries. This is where the rubber meets the road, so to speak, and there several different things to keep in mind. Before you read on, here’s some general information about proving liability in a truck accident case.
One of your main tools in this process is going to be the testimony of expert witnesses. Sometimes, the jury just flat-out doesn’t trust your word or the word of your attorney, so it’s helpful to have a third party, who is an expert in their field, explain important parts of your case. For instance, if your attorney alleges that the trucking company is liable because they didn’t properly train their drivers, that is clearly something that is open to interpretation, and the jury won’t believe the trucking company was in the wrong just because your lawyer says so. So, in order to help prove the accusation, your attorney may hire an expert in the field of CDL training to come to court and tell the jury what an appropriate training policy is and why the training policies of the defendant trucking company are not up to snuff. Experts that prove the liability of the defendant are called “liability experts.”
Liability experts can range from a regulations expert to a forensic scientist, to an accident reconstructionist – all of whom provide their professional opinion about your accident. In order to have someone testify as an expert witness, their qualifications must be proven to the court. Another thing that is important to note is that insurance companies often have experts on retainer whose job it is to poke holes in your case. Unfortunately, these experts have no scruples about bending the truth. However offensive that may be, we kind of begrudgingly love those experts because it is so easy to mop the floor with them in depositions. After all, since all they are is a hired gun for the insurance company whose job it is to say what the defendant wants them to say rather than tell the truth, they’ll eventually leave a trail of testimony in their wake that any lawyer who’s willing to do some digging can find and show the to the jury. We’re always willing to dig, and few things make our day like a defense expert who has said something in a past case that contradicts what he’s now saying in your case.
But what makes one expert better than another? In a word: honesty. They must be beyond reproach. For example, in most of our liquor liability cases, we use a particular toxicologist to analyze the drunk driver’s blood alcohol content and provide an opinion as to the degree of intoxication experienced by the drinker. If we were to ask this expert to sugarcoat or dance around some aspect of the case (which we wouldn’t do), she would refuse, and that is precisely why she is so helpful in those cases. Everyone in the industry knows that she is incorruptible.
Further, as much as most lawyers would like the public to believe that they alone are the thin line between winning and losing a case, the simple fact of the matter is that no matter how good a lawyer is, he is only going to be as effective as the evidence at his disposal, and expert witness testimony is evidence. A good team of experts will help your lawyer knock it out of the park, but the wrong team of expert witnesses can ruin your case. We’re unabashed in saying that a factor in our success is knowing which expert witnesses to use and which ones to avoid. In fact, many of our competitors have told us that they look up our lawsuits to find who we use as experts since they know we partner with the best.
The following list of expert witnesses are some of the more commonly used experts in these cases, though it’s not an exhaustive list.
- Accident Reconstructionist
- Maintenance Specialist
- DOT Regulations Specialist
- Forensic Toxicologist
- Phone Records Specialist
- ECM & EDR (Black Box Data) Specialist
- First Responders
- Police Officers
Just as important as proving liability, you have to be able to prove your losses. If you can’t establish that your injury has resulted in real damages and losses, then your case has no value. You could have the best fact pattern in the world and have uncontested liability – a legal “slam dunk” – and if there are no injuries, then you’ll win no money (this is called a “take-nothing verdict”).
Just the same way that liability experts are often employed to explain something complex about the cause of the wreck to the jury, sometimes “damages experts” are used in lawsuits to explain your injuries to a jury. The defense (trucking company) will be working very hard to downplay your injuries and generally make it seem like you’re exaggerating the extent of the harm sustained. If you have a qualified expert on the stand who is willing to testify on your behalf, that goes a long way toward getting fair compensation.
Before we list the most common damages experts, let’s clarify that the term “damages” is a legal term of art that just means “losses.” It sounds like the word “damage” but is totally different. It certainly would have been convenient for everyone if the legal field would have just used a different word to mean losses, but, unfortunately, they call losses “damages” so you should know what it means. Your damages in your case are nothing more than the sum total of what you’ve lost as a result of your injury.
This can include:
- Medical bills
- Lost wages
- Property damage (i.e. your vehicle was wrecked)
- Pain and suffering
- Loss of limb
- …and several other types of losses
Here is a partial list of expert witnesses we’ve used in the past that would be helpful to your case.
- Vocational Specialist
- Life Care Planner
- Long Term Medical Care Specialist
- Psychologist or Counselor
- Orthopedic Surgeon
- Pain Management Specialist
- Medical Doctors in General
- Medical Examiner
- Rehabilitation Specialist
- First Responders
The Trucking Company’s Defense: What To Expect
Nothing happens in a vacuum; there are always causes and effects. When you sue a trucking company, they’re going to fight back, so expect some resistance. A good attorney will know which defenses to anticipate and be able to respond accordingly.
However, you also need to be prepared for some personal attacks from the trucking company – the defendants. Even if some of them sound completely ridiculous or unrelated, you need to understand them and how to defend against them, because the trucking company is looking for any weakness they can find to undermine your case. The most common attacks we’ve seen on clients are as follows:
- “You were intoxicated.” This isn’t a very strong argument, unless it’s true and you were under the influence of something at the time of the accident. However, remember that not all trucking companies “play fair.” Sometimes, they will use things like medical records showing aspirin and other common medication in your system to claim that you were under the influence of “drugs.” It doesn’t make a lot of sense offhandedly, but you’d be surprised at how much these allegations can hurt your case.
- “You’re just not a good person, you don’t deserve compensation.” This is considered an attack on character, and it’s not at all beneath a trucking company to resort to such tactics. In fact, we’ve seen trucking companies claim the victim’s family were bad people and didn’t deserve any kind of compensation. This is nothing more than an attempt to de-value your claim by assaulting your character. Things like late rent payments, any criminal activity, charges filed against you, and job performance are all things that are scrutinized and criticized, so be prepared for it. A court of law is no popularity contest, but juries are humans, too, and trucking companies know that if they can get evidence that says anything bad about you at all into court, it may make the jury like you less.
- “You’re too old to be driving in the first place.” This is another attack trucking companies will resort to if they feel threatened. There’s something to be said for a 100-year old driver who can’t see very well, sure. But trucking companies will sometimes unjustly argue that anyone over 50 should their compensation diminished because their peak years are behind them and they don’t have a lot of earning capacity left. It’s reprehensible and offensive, but this is what you’re dealing with when you sue a trucking company. The same argument applies if you have any diseases, sickness, or chronic illnesses that they might be able to blame the accident on.
- “The road conditions are to blame.” You’re probably noticing a pattern here: the trucking company will pretty much point the finger at anything or anyone but themselves. This includes the road conditions. If the road where the accident happened was excessively bumpy, wasn’t paved well, or didn’t have signage, the trucking company can try to push off some of the blame on that.
- “Another vehicle is to blame.” This is a more straight-forward claim that there was another vehicle involved in the wreck and they were the real cause, not the truck driver. But, trucking companies have also been known to blame accidents on “mysterious” cars that somehow vanish from the scene after the wreck and never make it into the police report. Don’t let this happen to your case, because it’s too simple an attack to not be fended off.
- “The accident was partially your fault.” In Texas, we use a comparative fault system to determine who has the most liability in an accident situation. That means that both parties can be at fault, but each is only responsible for their portion. If the trucking company can “compare” their fault to yours and make it seem like most of the fault lies with you, your case is lost. No driver is perfect, but you can be sure the trucking company will greatly exaggerate any part you did contribute to your accident, if at all.
- Using your social media accounts (Facebook/Twitter/Instagram) against you. Your social media presence can do a lot to damage your case. If the trucking company can prove you were using your phone at the time of the accident, that’s going to hurt your case. Likewise, if you post comments or pictures of the accident that convey the wrong information, that’s fair game for the trucking company to show a jury. Read more about how social networking can harm your case, because there are scenarios you probably haven’t thought of.
Resolving Your Truck Accident Case
We hope we’ve made it obvious that trucking accident cases aren’t simple matters at all. It’s not as if you can waltz into a courtroom, show a judge your hospital bill and auto repair bill, and just receive fair compensation. There are a lot of steps that need to be followed and timing is also a huge part of it. “Statute of Limitations” is a term you’ve probably heard before and it applies to when you can file a lawsuit as well. Furthermore, there are other filing deadlines and cutoff dates that can really hurt your case if you don’t know them.
Settling Your Case Early
At the beginning of this page, we talked about how the trucking company would be happy to offer you pennies on the dollar for your claim to be settled right now. Again, we can’t stress enough that that’s a bad idea. It’s also never a good idea to try and negotiate a settlement offer with these people, because even if they seem to nice and friendly, they have their own best interests at heart, simple as that.
Nearly every lawsuit is resolved in mediation, which is a pre-court appointment between the plaintiff (you) and the defendant (the trucking company), where both sides put their cards on the table and a mediator (usually a former judge) plays referee.
This can be the breaking point for your case, and it’s not something you want to do alone. They are usually all-day affairs and the trucking company will have brought their absolute best to the table, so to speak, in terms of negotiating. If you walk into this unprepared, you will not get a fair settlement. We like to make mediation into a big production. While most lawyers choose to show up and chat about their client’s case, we understand how important the presentation can be, so we usually prepare a video, Powerpoint slideshow, or have some other demonstrative aids. Further, we always practice and do test-run presentations. We simply cannot fathom why so many lawyers show up to mediation without any prep. Mediation is not just some court-ordered roadblock or waste of time. It’s a genuinely good opportunity to compel the defendant to pay up, so it should be treated accordingly. Read more about mediating your case by clicking the link below.
This is the part that everyone always thinks about when they hear the word “lawsuit.” If this article has accomplished its purpose, you hopefully realize that there are a lot of steps between filing a lawsuit and going to trial.
The truth is that most attorneys and law firms don’t want to take cases to trial and will avoid it at all costs. The mark of a good attorney is one that doesn’t drop your case when it looks like things will get heated in the courtroom. But, a good attorney will also have prepared for the case to go to trial and won’t be surprised by it. By treating your case from day one as though it will definitely go to trial – even though the sweeping majority of lawsuits don’t ever see a courtroom – you demonstrate to the trucking company that you mean business. If they can smell that you’re unprepared or just unfamiliar with the finer legal points of filing suit, they’ll take advantage of it.
There is more that can be said about trying a case than can be covered here, so read this article to get a more in-depth understanding:
Collecting and Distributing Your Compensation
Your case has no value until it’s been established, so here is a list of criteria that gives your case value. Each of these items have a monetary value that can be assigned to it, even those that seem a little more abstract. That’s not to seem insensitive or callous, but money is generally the best way to compensate people when they’ve suffered a loss, and it’s a tangible way the trucking company can be punished for their negligence or the negligence of their driver. Everyone values money, especially when it is taken from them, so courts use money as the incentive to persuade trucking companies from doing dangerous things.
What Gives My Case Value?
The potential value of a truck accident case is dependent on the damages, which can include:
- Amount of medical expenses
- Estimated cost of future medical expenses
- Amount of lost wages
- Estimated future loss of income
- Loss of earning capacity or possibility of permanent disability
- Physical and mental limitations
- Past and future pain and suffering
Read this article to learn more about the value of your case, after losses have been proven.
How Is The Compensation Distributed?
First, your expenses need to be paid. Obviously, your injury has left you with some medical bills and perhaps other outstanding debt from places like an auto repair garage. Your settlement money automatically goes into an IOLTA Account, and is then distributed in the following order:
- Medical bills and outstanding debt incurred as a result of the accident
- Litigation expenses (such as filing fees, court costs, etc.) attorney fees, etc.
- You and any other statutory beneficiaries. E.g., a dependent who has lost a parent’s ability to provide. This article explains this process in greater detail.
Get The Right Attorney On Your Side
We hope this article has been thoroughly informative, so you have the tools you need to select the right attorney for your truck accident case. Again, you need an attorney who is experienced and seasoned in this specific field. Don’t be represented by a personal injury attorney who mostly handles regular car accidents – and most certainly don’t get representation from a lawyer who practices in an entirely different field, like Oil and Gas Law, Family Law, Probate Law, Criminal Law, etc. That would be like going to a proctologist for a toothache.
Your case needs someone with the resources and the staff committed to taking your case to trial, if need be. Otherwise, these trucking companies don’t learn their lesson and end up getting away with murder, sometimes literally. If our firm has provided you with good information, then we’ve done our job well. If you need to talk to someone about finding the right attorney, we’ll gladly make our skills and resources available to you.