How to Investigate a Truck Accident Case - The Definitive Guide
It's common to think of commercial truck accidents in simplistic terms: truck A runs a stop sign and crashes into car B. However deceptively intuitive such a scenario may be, the resulting accident litigation that is likely to occur will be quite technical in nature and, because the burden is on the injured party to prove the semi-truck driver caused their damages, they'll need to have substantial evidence on their side in order to win their case. In anticipation of the trucking company putting up a fight (as they nearly always do) the first step of any lawyer worth his salt after signing up a truck accident case will be an exhaustive investigation that goes above and beyond the basic investigation that the police usually conduct immediately after the accident.
In this article, Texas truck accident attorney Michael Grossman explains how to investigate a truck accident the right way, and he discusses the evidence that smart lawyers hope to obtain from one.
Questions Answered on This Page:
- Why is evidence important in a truck accident case?
- What kinds of evidence do I need to win a truck accident case?
- How does investigation in a truck accident case work?
Why do you need a lawyer to investigate anyway? Don't the police handle that?
The reason lawyers fret so much over gathering truck accident evidence is twofold: defendants in truck accident cases have the resources to litigate their cases until the end of time, and juries are rightly skeptical of claims made by injured plaintiffs without corroboration. Consequently, you must obtain the help of an experienced truck accident attorney if you intend to find the evidence necessary to hold a negligent trucking company accountable for your injuries in a court of law.
In the modern era of personal injury law, plaintiffs face considerable challenges as they attempt to hold a defendant liable. Even if the defendant's negligence appears to be obvious, it is now necessary to not only show a jury "how" an accident happened, but "why" an accident happened. An in-depth truck accident investigation is necessary to properly document the trucking company's safety policies (or lack thereof), training procedures, and maintenance protocols, in addition to learning as much as you can from the accident scene itself.
If it was ever true that you can win a truck accident case simply by showing that the truck driver made a momentary error or committed some obvious infraction, that is no longer the case. Now more than ever, a plaintiff can't rely on any single piece of evidence to win their case for them. As such, the only appropriate response following a serious truck accident is to have an attorney act on your behalf to find any and all evidence that shows not only what happened in the moments leading up to your accident, but any history of careless behavior on the part of the driver and their employer.
As such, if you have been injured in a truck accident, gathering and preserving evidence is the most important aspect of your case. And the window to do so is short. Some people are aware that they have two years to file a personal injury suit, which is the period, known as the statute of limitations, before your claim is permanently barred. However, waiting even one month to have an attorney start on your case can hurt your claim, simply because the evidence required to prove it may already have disappeared, as with the company repairing a mechanical defect on the 18-wheeler that contributed to the wreck.
There Are Many Wrong Ways to Investigate
While many law firms do not recognize the importance of quickly gathering and preserving the evidence required to prove your truck accident case, we do. We get to work gathering evidence as soon as possible, while it is still fresh. Some attorneys may not even do a complete investigation at all. They will simply wait for a police report and base their case on law enforcement's interpretation of the evidence, rather than completing a full independent investigation and evaluating the evidence on their own.
Many attorneys and laypeople inaccurately believe that all they need on their side to win a truck accident case is a police report in their favor. This is patently wrong, as these reports as these reports range from inadequate to the purposes of civil litigation to staggeringly incomplete.
To better understand why, let's consider the purpose of a police report. First, the police report is not designed for the purpose of establishing liability in civil court. Its primary function is as an aid to potential criminal prosecution. Simply put, while it's certainly useful as one piece of evidence among many, there's no compelling reason to wait for the police accident report before retaining an attorney. They were never intended to be documents to be used to prove a case in civil court, and as a result, they can be considerably lacking in completeness and accuracy compared to other forms of evidence.
Given these issues, why are police reports so often relied upon in truck accident litigation? Simply put, in most minor accidents there is not enough money in controversy to justify a third party investigation. Most of the parties involved in such accidents are perfectly content to agree to use the police report as if it were the gospel truth, even if is only partially suitable as a means of determining fault. That makes many victims and less experienced attorneys think they can also safely rely on those reports in commercial vehicle accident litigation, even though those cases are usually far more complicated and the amounts at stake much higher.
Think of it like this: a homicide detective would much rather build his case on eye witness testimony or surveillance footage, but sometimes this type of evidence is not available. In the absence of good evidence, he may still press charges against someone based on circumstantial evidence. In terms of its effectiveness at proving your case, a police report is analogous to this circumstantial evidence. It is a piece of evidence that may be used but it is certainly not the silver bullet that most people think it is, and you're really harming your case by relying on it as anything more than a jumping off point.
What specifically is lacking in the police report?
Testimony provided by an expert witness, which is unlikely to be in most police reports, is often admissible in court. For example, in a case where the plaintiff is claiming that a product's engineering or design defect caused their injuries, an engineering professor may be designated as an expert, who can provide a report that clarifies the technical elements of a plaintiff's claim, so that a jury can comprehend and weigh them appropriately. In other words, when there is a complex matter that must be explained to a jury, the opinion of a lay person may not mean very much, compared to one advanced by a qualified expert
Another problem with police reports is that not all police officers are qualified to make a proper analysis of a scene. As a consequence, the police report is not beyond reproach. It is a document that may be inherently flawed and should be carefully scrutinized by your attorney. Imagine that the only evidence you present is the police report, which shows the 18-wheeler driver to be at fault for your accident. Then suppose that during cross examination, the defense lawyer for the trucking company is able to trip up the police officer and cast doubt on his findings. As you can imagine, this would be a major threat to the viability of your case.
Admissibility issues with police reports
The attorneys who represent the trucking company will often argue to have the police report disallowed from being heard by a jury, on the grounds that the officer who created the report was not properly qualified as an expert. The opinions contained in a police report are not seen as facts, rather, they are viewed as opinion made by an alleged expert. If the police officer is expected to testify, he will have to relate to the jury how the opinions in the report were arrived at and will have to make an articulate justification for his reasoning. However, the opposing counsel can also produce an expert in the field to counter his statements.
It will be up to the jury to weigh the officer's expert testimony against that of the non-expert and make a decision as to who is more credible. The jury will probably find that an expert who holds a degree and has years of experience will be quite credible. When you select an expert witness to provide testimony in relation to a medical procedure, life care planning, or other issues related to your case, you as the plaintiff will have an much stronger claim.
However, you do not get to choose the police officer who investigates the accident scene and drafts the police report. In addition to the reasons mentioned above, this ambiguity regarding the the officer who drafts the report means it should not be relied upon as the crux of your evidentiary strategy. What if the police officer himself lacks credibility, training, or experience, and you have no way of knowing this? The police report won't speak to his lack of experience or training on the job, but merely keeps a record of his opinion about what happened.
At best, the police report should be thought of as a helpful guide, one that may end up being entirely accurate, but is often little more than an official best guess. Many times, the police report is incomplete or just plain wrong. Your case is important to us, and you deserve to have attorneys that will follow up on your claim fully and completely. An attorney that relies solely on a police report as evidence is doing a disservice to you and to your case.
Investigating the Accident Scene
Rest assured that the trucking company's investigators will be at the site as soon as possible to talk to witnesses, to collect evidence and let the driver know what story they'd like him to put forward if asked. And you can be sure that story will be thoroughly biased in their favor. The worst thing you can do is allow them to take the advantage this way, and not have your interests represented at the scene of the accident as soon as possible.
In rare instances, we are hired immediately following the accident, allowing us to go out to the location and conduct an analysis of the scene. However, in most truck accident cases the injuries are so severe or the accident results in death, that grieving or anxious family members will wait for some period of time before they think of hiring an attorney.
While it's understandable that your first thought after your loved one has died or suffered serious injuries isn't legal action against the trucking company, delaying the start of your case can potentially hamper your ability to collect valuable evidence. However, regardless of how long it's been since the crash when you contact us, our first order of business is obtaining whatever evidence we still can, and sending documents called letters of spoliation to preserve any relevant evidence from destruction by the trucking company.
Letters of Spoliation
Preserving evidence begins with sending a letter of spoliation to any defendants being sued. This is a document drafted by our attorneys that puts all of the defendants on notice that a lawsuit is pending, and that no evidence relating to that lawsuit should be destroyed, altered, concealed or otherwise tampered with in any way without first getting approval from the claimant's attorney. This letter is enforceable under the law and any trucking company that violates its conditions could be subject to severe penalties from the court. Failing to send a spoliation letter is tantamount to inviting the defendants to tamper with the evidence. Obviously, not all trucking companies are corrupt, but there are 360,000 of them in America, and we have found that the same trucking companies that are causing fatal accidents are also the ones most likely to do whatever they can to avoid being held accountable. In light of this, evidence tampering is a possibility your attorney should be prepared for, and take steps to prevent as soon as possible.
Once all parties have been put on notice, a vehicular accident reconstruction can begin, and evidence can be gathered and collated. We may take witness statements from those who have personal knowledge of the accident. A vehicular expert may be sent to the site to measure the skid marks of the accident scene. They may also perform inspections on both your car and the 18-wheeler that caused the accident.
Witness statements are extremely valuable in reconstructing the events of a collision. It is important to gather as much initial information as possible, including interviewing any eyewitnesses to the crash. This makes it important to collect a full list of who was at the scene at the time. These crucial statements should also be taken separately in order to prevent cross contamination of statements (one person's memory of what happened being affected by the statements of another.) And when witnesses are interviewed, it should be done with the mindset that this person may be called to testify under oath. Once their information is gathered, each witness statement should be cross checked against the physical evidence to ensure its reliability.
During the reconstruction of the accident, much of the physical evidence will be reviewed and analyzed. Depending on the actual location, the grade of the street will be checked and the surface road will be checked for oils and other substances that may have affected the collision. If there are skid marks, they will be measured for distance, angle, and substance to confirm which vehicle they came from. This will be used to determine if either of the vehicles braked at all and, if they did, how fast they were going when the brakes were applied. The brake condition, brake fluid levels, and the brake pads will also be examined to create a complete picture of what happened at the time of the accident. Depending on what this evidence indicates, gathering this evidence can help the jury assign where the fault may lie.
As you can see, an independent investigation of your crash will contain plenty of witness statements and physical evidence, much of which would not be contained in a typical police report. For example, we had a case where a plaintiff was driving along a highway and failed to yield the right of way to a merging truck driver. The plaintiff, of course, had some responsibility for what happened. However, the truck driver also had an obligation to make reasonable attempts to avoid the accident, which he failed to do, making him partially responsible as well for the horrible collision.
In other words, the carelessness of the passenger car's driver did not give the truck driver free reign to mow down the driver, which is what he did in this case. The police report did not include a full and complete account of what happened in this crash, and it was only later through our independent investigation that the true facts of the incident were revealed. Had they not sought out our help, the client might well have been found totally at fault for their own injuries.
Electronic and Digital Evidence Preservation
Gathering and preserving electronic evidence is a relatively new strategy in litigating commercial trucking cases, so it is also important to have attorneys working for you that are familiar with all of the latest advances in this evolving field. We understand that the Engine Control Module (ECM) in a tractor-trailer tracks all of the information regarding the performance of the vehicle's engine. Recorded ECM data may include the engine RPMs, the vehicle's speed, and whether the brakes were applied in a sudden stop. The data should also be reviewed by someone with extensive knowledge of ECM data. We have experts able to do just that, and it's imperative that such information be gathered. In addition, this information is only available when the plaintiff's attorney acquires a subpoena that can compel the defendant to provide the data.
Global Positioning Systems (GPS), such as Peoplenet, can provide an after-the-fact accounting of a vehicle's movements. GPS data can also be important in cross checking what the driver is writing into his log. The data could show that not only was the driver negligent, but that he has been lying about his driving habits, his diligence in maintaining his semi-truck, and other important details about his behavior prior to the accident.
Qualcomm is an in-cab messaging system used by many trucking companies that automatically save information about the performance of the truck and the routes that the vehicle has traveled. Qualcomm stores the information it records for about 3 months. ECM, GPS, and Qualcomm systems produce electronic data that can easily be wiped, erased, or damaged, but are important aids in revealing unknown factors that could have contributed to the cause of the accident. We make every effort to preserve and obtain them for you.
These data systems that record and store travel information can be important to undermine a driver's credibility, along with other incriminating circumstantial evidence. In one case we handled, there was a truck driver who claimed he had logged the standard number of hours for driving and whose driver's log appeared to support this claim. The data from his GPS was subpoenaed, and it was found that he had forged the information in his physical log books. That data showed that he had been driving for a full twenty hours prior to the accident. The data proved that he was not being credible and that he would have been fatigued while driving, which contributed to the accident. If one had only looked at the log books and not checked his GPS, his story would have appeared credible.
Driver Records as Evidence
The truck driver's qualification file will need to be reviewed. The qualification file is a collection of documents that contains items such as the driver's application for employment, driving record, medical history, test results for physicals, and medical examinations. It is essentially a file showing that the driver is legally qualified to drive a commercial truck. It should also contain an employment history and driving record from the state. This data can be more important than you might expect. Outrageous as it may seem, we have even had cases where a driver was not only not licensed to operate a commercial vehicle: they weren't even holding a regular driver's license.
Additionally, a criminal background check should be done by pulling records from the state. The Department of Transportation maintains the Safety and Fitness Electronic Records System (SAFER). This government website provides safety data and reporting for the public on commercial trucking companies. SAFER includes crash information, safety ratings, company identity information, the company's size, and other information on their safety record.
Other Driver Information
Other information needed from the driver would be driving logs and history, fuel receipts, bills of lading, information from weighing stations, cell phone GPS data and possible criminal charges that resulted from the accident. These can be checked against each other, as well as ECM and GPS, to gather a picture of the driver's habits and methods and to either verify or impeach any contradictory statements he may give later. All of these records can be used to help a jury make factual determinations, depending on the particular circumstances of the case and the particular issues being litigated.
Driver's license information from both parties may also be retrieved from the Department of Motor Vehicles, and on that same note, background checks should be done. This information, along with witness statements and accident reconstruction will be combined to create a profile of the parties involved in the accident and to create a model reconstruction of the events of the accident. These models, along with photographs, documentary evidence, and animatics can then be used as part of expert testimony and presentations to the jury, giving them the most complete understanding possible of how all of the events of a particular case unfolded.
Evidence from the employer will also need to be taken. Employee handbooks and training manuals could reveal a host of critical details: whether the driver was trained adequately, what remedial measures exist for employee misbehavior, drug/alcohol tests, intoxication screens, and reprimands or wreck. All of this information can be helpful in determining whether the employer knew the employee was a danger to the public prior to the accident.
Other useful evidence for your attorney to obtain would be in-house investigation letters demonstrating whether the employer himself conducted any previous inquiries into the driver or equipment that may not have been released to the public. Additionally, it is the current employer's responsibility to obtain information from previous employers of the driver to determine if he had any history of negligence prior to his current employment. The service records indicating whether the truck had been adequately maintained and any repairs that may have been done on the vehicle should also be obtained. The same can be said of previous employer disclosures, if they had made admissions that would be damaging to their defense. Interviewing the employer and getting statements from fellow employees could also reveal important information about the habits and conduct of the driver.
Read these other articles related to investigating truck accident cases:
- How 18-wheeler black box data works
- What is spoliation of evidence, and how does it work?
- How police reports factor into a truck accident case
- How eyewitness testimony can impact a truck accident case
- How criminal prosecution works in truck accident cases
- How cell phone data impacts truck accident cases
- Drug tests for truck drivers
- Why we look at a driver's medical history
- Evidence that can be found in a truck driver's annual medical evaluation
- Maintenance and repair reports on commercial vehicles
The Importance of Evidence and Investigation in Your Truck Accident Case
It is imperative to start the investigation process as soon as possible after a commercial vehicle collision. Information, evidence, and data can be lost within a matter of a few months and the commercial trucking defense attorneys will not waste time gathering as much evidence as possible to help their case and hinder yours.
Attorney Michael Grossman has spent the last 25 years representing those who have sustained serious injuries as well as clients who have lost loved ones in 18-wheeler accidents. If you need the help of an experienced truck accident law firm, call (855) 326-0000 for a free consultation.