Defense Attorneys Say The Darndest Things
About a year ago, one of our firm's attorneys, Keith Purdue, was taking the deposition of a trucking company's "safety manager." This deposition was a fairly heated affair, wherein we were essentially accusing the man being deposed of having a largely ceremonious title and/or a job that merely existed for propaganda reasons. You see, in the case that we were litigating, a truck driver (who was on drugs) killed an innocent man. And while the State Troopers, our own independent accident reconstructionist, and the DOT had all determined conclusively that the truck driver was very clearly at fault for the accident, the trucking company's safety manager conducted his own investigation and found the results to be "inconclusive."
But the sad part is that this isn't at all out of the ordinary. While some trucking companies have legitimate safety managers whose job it is to ensure that their fleet is manned by only the best and most qualified truckers, the majority of safety managers that we've encountered are really the company's Chief Officer of Plausible Deniability. Their job is not much different than all of the on-staff scientists employed by the tobacco industry: never look hard enough to find anything which would suggest that their employer is to blame for anything.
As mentioned, Keith Purdue, from our office, was deposing a man with just such an occupation and, frankly, Keith ripped him to shreds. He got the safety manager to admit that he turned a blind eye to the majority of the evidence, that in all of his many investigations he had never once concluded that the trucking company was at fault, and, most damning, Keith got him to admit on the record that the methods he used for calculating speed based on skid marks was not scientifically valid.
The attorneys requested a break, the cameras were turned off, and everyone convened in the lobby of our office, making small talk. The lawyer who worked for the trucking company approached Keith and said (paraphrasing), "Let me get your advice on something. I'm defending a case where a drunk truck driver ran into the back of a parked car, causing the driver of the car to suffer a few hundred grand in medical bills and he'll never be able to work again. The trucking company I represent was sued and it's time for me to file an answer. Are there any theories you can think of that will take some blame off of my driver?"
Keith was blown away. Standing before him was a trucking company lawyer explaining in no uncertain terms how he intended to cook something up --anything-- that could make his driver look less guilty than he was. What's more, this man was so oblivious to his surroundings (or perhaps so jaded by the requirements of his profession) that he didn't have the presence of mind to think, "Wait a minute. Maybe I shouldn't just assume that all lawyers think the way I do, that a life-altering accident is some sort of game, pitting my wits against the wits of my opponent, wherein I hope to ensure the innocent victim of an accident gets pennies instead of the fair compensation he actually deserves. Hmmmmm?"
Naturally, Keith suggested to this lawyer that he needed to pay the injured man. He said something along the lines of, "If I were that guy's lawyer and you tried making up some bull like that, I'd make you choke on it in trial." The lawyer fired back, "So you can't think of any clever argument I could use to strengthen my position?" "No," Keith replied." "Don't worry," the lawyer said, "I'm sure I'll think of something."
The takeaway from this is that there is no such thing as an indefensible case. From the perspective of a trucking company, no matter how seriously their driver erred, there is always some way to shift blame away off of themselves and onto something or someone else.
A Real-Life Example
To be clear, we think that any honorable man or woman with half a backbone will own up to their mistakes and offer restitution to their victims. As such, we are in no way suggesting that trucking company lawyers should engage in the types of mental gymnastics we're going to illustrate here, only that they do. Further, while we certainly understand the importance of due process and appreciate that the law in no way suggests that a trucking company isn't allowed to defend itself, there is a huge difference between staving off unwarranted punishment and exploiting the law to avoid responsibility for one's misconduct.
It would be easy for us to conjure up a thousand hypotheticals which illustrate the way that trucking company's could bend the truth, yet it seems more impactful to show how typical "trucking company lawyer logic" can be applied to a real-life scenario. As such, I took a random account of an accident that recently happened --one where the trucker seems to obviously be at fault-- and I'll show you how a trucking company lawyer would argue the case such that they can hope to avoid financial responsibility.
On January 4th, around 9:30 a.m. in front of the First Merchants Bank in the 7000 block of U.S. Highway 52, 41-year-old Tammy Farver prepared to make a left-hand turn into the bank's parking lot. As the vehicle started to turn, it was rear-ended by a wrecker truck driven by a 33-year-old truck driver.
Getting rear-ended is already plenty dangerous, but unfortunately this incident got worse. The force of the collision pushed Farver's vehicle into the path of eastbound traffic, where it collided head-on with a sedan driven by Heather Christopher, 47, of New Palestine. Christopher and Farver were both taken from the scene to Indiana University Health Methodist Hospital, where Farver later succumbed to her injuries. Our heartfelt condolences to her friends and family.
In a statement to police, the truck driver said he doesn't remember the cause or circumstances of the crash. He was not injured, according to reports. Investigators do not believe drugs or alcohol were factors in the collision.
Even people who don't hear about these kinds of stories every day will look at a story like this and assume that because the initial accident was likely caused by the truck slamming into Ms. Farver's vehicle, the trucker's at fault and they will therefore have to do right by the victim's family. Unfortunately, our experience in truck accident law tells us that trucking insurance companies will go out of their way to find someone else to blame. In accidents that involve multiple vehicles, we can also guarantee they will attempt to make a case that another driver was to blame, and the complexity of the accident gives them some ground, however weak, to stand on.
How Commercial Insurers Try to Shift Liability
It's important to remember that the court is not able to look into a crystal ball and know with absolute certainty what happened in an accident. As such, the court relies upon testimony from witnesses and physical evidence as filtered through the analysis of "expert witnesses." Since this normally turns into a he-said, she-said, the court has developed rules. One could say that the goal of football is not to see who can get the ball to the other end of the field, rather, it is to see who can get the ball to the other end of their field within the confines of the rules.
While that may seem obvious when talking about sports, it's far less obvious when discussing the law. Most people have an intuitive sense of right and wrong, so, when they learn of an accident such as the one which claimed Ms. Farver's life, they simply conclude that the defendant's fault is obvious, so surely this will be an open and shut case. But that would be like saying, "Emmitt Smith is the best running back, so he will definitely score the most points." Well, no, not necessarily. He may have the greatest points-scoring potential, but actually scoring the point depends upon him applying his talents to the very unnatural and rigid rules of the game of football.
But just the same way that common sense tells us that Emmitt Smith is definitely going to win, yet practical experience says that it's not that simple, any common sense analysis concerning justice in the case of Ms. Farver's accident is also misleading for the simple fact that a courtroom isn't a common sense laboratory, it's a formal setting with rules, procedures, and technicalities which forces participants to convert their common sense observations into court-approved arguments and evidence. There is no such valid argument in court that a truck driver's negligence is obvious. Instead, this obvious misconduct must be broken down into its constituent legal concepts and meticulously proved to a jury, in order to be compliant with the rules of the court.
Case in point, the court doesn't care about all the many causal factors of an accident. Instead, they are chiefly concerned with revealing the proximate cause of a victim's injuries. This is the one cause without which the injury or fatality would not have occurred. By definition, this means that the court has to engage in a normative analysis and make a logical, moral, and value judgment in order to arrive at a finding of fault. As you can imagine, this creates some interpretive "wiggle room" that does not jibe with the supposed idea of "obvious fault."
To see how this works, let's look at a hypothetical example. Two people are walking down the street, a sidewalk, when suddenly one person pushes the other into a street. A car then comes along and strikes the person who was pushed into the street, killing them. Legally, who is to blame in this accident? As is the case with most legal questions, the answer is, it depends.
Did the driver have sufficient time to stop? Even if they couldn't stop, could the driver have slowed down enough to mitigate the impact with the person in the street? If the person threw their friend into the road and a car had absolutely no time to react, then the proximate cause of the accident would be one person throwing another into oncoming traffic. After all, drivers need time to react and cars take time to slow down.
However, if the driver was a half a mile down the road when the pedestrian was thrown into the street, things change. In that case, the driver would have sufficient time to stop the vehicle, well before hitting the pedestrian. Given those facts, it would be hard to argue that it was the person who knocked the other pedestrian into the street that caused their death, since it's reasonable to expect a vehicle to stop in under a half a mile.
The point is that nothing is black and white in the courtroom. There is always an opportunity for the person who pushes someone else in front of a car to say, "Sure, I pushed him in front of the car, but that's not what really hurt him. Rather, the driver of the car not taking evasive action is the true cause of his injuries. Draw this to it's furthest logical conclusion, and you can see how anyone accused of anything can downplay their misconduct. The court's prerogative is to err on the side of fairness. They would rather 100 guilty men go free than one innocent man be unjustly punished. As such, things like evidentiary standards, burdens of proof, and other rules of the court, as necessary as they may be, have the unintended effect of allowing someone's obvious fault to be presented in a different light.
Why Does the Law Let Commercial Insurers Present Dubious Theories of Liability?
Just as our courts offer victims the opportunity to have their claims heard in a neutral venue, those accused of negligence are afforded the opportunity to defend themselves. Regardless of what is written in the media or in a column like this, nothing in a dispute is final until the jury has its say or the two parties reach a settlement (which is done in anticipation of what a jury may do).
The ability to defend oneself is a crucial element to any fair justice system. It would be hard to justify affording this right to an accused murderer, while denying it to those accused of negligence who could potentially lose a substantial amount of property.
This means that as long as a defense theory has some basis in reality, they're allowed to argue it, no matter how bizarre it may sound at first glance. Given that each accident is unique in circumstances and facts, there are times when genuinely strange things happen. It doesn't matter how strange a theory may sound on the surface, if it is backed up by facts and appears to be the most likely explanation for what happened, then it generally prevails.
If it weren't for accidents with fact patterns that were out of the ordinary, there would be less of a reason to have a civil justice system. If we were just apportioning responsibility based upon what usually causes a particular type of accident, then compensation could be decided administratively.
Of course, such a system would regularly commit injustices against those who were involved in accidents with unique sets of circumstances. In essence, we would be punishing someone who was innocent. Punishing the innocent is so abhorrent to our notions of justice that in both civil and criminal matters we stack the deck against plaintiffs and prosecutors. That's the real reason that we see defenses that defy common sense. Criminal defense attorneys are trying to plant reasonable doubt in a jury, while civil defense attorneys do something similar.
Like Texas, Indiana, where Tammy Farver's and Heather Christopher's accident occurred, operates on a system known as modified comparative fault. Under this system, victims are entitled to recover compensation for injuries as long as a jury finds that they are not more than 50% responsible for their own injuries.
Every bit of blame a commercial trucking insurer can place on someone other than their client lowers the amount they have to pay out. If they can place more than 50% of the blame on the person who was injured, they can end up owing absolutely nothing. While it may be hard to believe that such a strategy can work in a chain reaction accident, where the truck driver started the whole series of events, there are situations where it does.
In the eyes of most juries, theories of liability start out on equal footing. They weren't there and they're hearing two sides that they don't know tell two very different stories. How do they decide which one they are to believe? Usually it's the story the that is backed up by evidence.
Commercial insurance companies have the resources to hire experts, accident reconstructionists, and whomever else they need to gather evidence that bolsters their story. Not every attorney who advertises that they handle truck accident cases has the resources to compete with an insurance company. Even if it's obvious that their theory of how the accident happened is most likely what happened, if a victim's attorney can't gather evidence, they're hurting their client's case.
With the amount of money on the line for insurers in a commercial truck accident case, it's a pretty good gamble for trucking companies to gather whatever evidence they can to support their theory and bet that the victims will be represented by an inexperienced attorney. After all, these are very smart professionals who handle these types of accidents every day. If they were just throwing money away on investigations and evidence gathering, they would stop wasting that money and simply pay victims. The fact that they don't tells us that it's often money well-spent because they come up against inexperienced attorneys who can't make their case.
Commercial truck accidents are never easily resolved without help. When an accident involves multiple vehicles, the complexity grows geometrically. It's not just the Farver/Christopher accident in New Palestine, Indiana where the presence of an more than two vehicles makes an accident more difficult to resolve.
It's an unpleasant aspect of human nature to want to avoid responsibility for the bad consequences of our actions. Trucking companies and their insurers are no different. When given the opportunity to point the blame at another driver, they'll take it.