The purpose of this guide is to explain truck accident law in a way that is useful to non-lawyers.
But why? At some point, truck accident victims will have to pick a lawyer, and the harsh reality is that most lawyers are not qualified to litigate truck accident cases. So, what often happens is many accident victims fall into the trap of hiring an unqualified attorney who experiments on their case with unproven methods.
With so much at stake in a truck accident case, you can't afford to let that happen to you. By sharing the info in this guide—info we've acquired over 30 years of litigating high-stakes truck accident cases—we hope you will be better equipped to recognize whether the lawyer you're considering is the right person for the job.
Now, truck accident litigation is a vast subject. So to make things easier on you, the reader, we have broken this guide into a few discreet topics, each of which is covered in its own chapter:
But if you'd rather skip all the reading, just give us a call. We love talking about the law and will gladly walk you through our approach.
Chapter 1 - Things You Should be Concerned About
Have you ever seen the movie The Matrix? One of the first things that Morpheus must do is convince Neo that everything he thinks he knows is wrong. It's a tough pill to swallow (pun intended), but accepting that reality is the first step on Neo's path to heroism.
I'm sorry to say it, but we need to have a similar discussion. The harsh truth you need to accept is: No matter how good your case is, it can be lost if it's not handled properly.
Since even a good case can be lost in the hands of a bad lawyer, there are a few things you should be concerned about. What we aim to do in this chapter is to first put these concerns on your radar and then explain how we will work to keep them from becoming a problem in your case.
In no particular order, here are 7 things you should be concerned about.
1. You Can Lose an Un-Losable Case if You Don't Gather and Preserve Supporting Evidence
Most clients believe that if they can just tell their story, they'll win. A jury will hear about the terrible thing that happened to them and will make it right.
The problem is, that's not how courts work. If you could sit down and have a cup of coffee with the jury and pour your heart out, sure, they would probably take your side. In a courtroom, however, the evidence has to do the talking. So, the real fight is over what evidence the jury is allowed to hear.
Here's a perfect example. In the last case we tried in Collin County, we were second on the docket, meaning that another case got to go first, and then it was our turn. This provided us with a front-row seat to their trial.
Their case involved an accident where the offender ran a red light and T-boned the victim. The police report put the offender 100% at fault. Easy case, right?
Unfortunately, the victim's lawyer neglected to properly prove up the police report, so it was not admitted as evidence. This mistake transformed the proceedings into a game of he-said, she-said, and the victim lost their "un-losable" case.
This is easy enough to avoid. The reason our firm has had such success in truck accident cases is that we don't assume anything is obvious. Instead, we gather evidence, we preserve it in accordance with the rules, we have the evidence proved up so that it is admissible, and then we build our case around that evidence.
2. There Are Already Lawyers Involved in Your Case
Many people hesitate to call an attorney after an 18-wheeler crash because they're not "one of those people who files lawsuits." What they may not realize is that as soon as a trucking company gets word that one of their vehicles was in a crash, their investigators and their attorneys begin to mount a defense.
In fact, it's not uncommon for trucking company defense attorneys to be on the scene of the crash while the investigation takes place. The question isn't "do you want to hire a lawyer for your case?" Rather, it's "do you want to be the only party without a lawyer?"
This too is an easy problem to solve. Do your homework and find the best lawyer for your case, ASAP.
3. While You Wait, Evidence Evaporates
There is a reason that trucking companies send their attorneys to crash sites: time matters. After authorities treat the injured persons and conduct a brief crash investigation, their priority is to reopen roads. This means that physical evidence is removed from the scene, and the eyewitnesses go back to their lives. As such, the evidence you need to win your case starts vanishing shortly after the crash. Any delay in starting your case only compounds this problem.
This is easy to solve by hiring a competent truck accident lawyer who will immediately start gathering evidence. We cover this in more detail later, but the right way for a lawyer to respond when they're hired in a truck accident case is to launch an independent investigation that is quite thorough. Good law firms—the ones that win truck accident cases—hire outside accident reconstructionists and set them loose on the scene and the vehicles. An accident reconstructionist is a professional with an engineering and physics education whose job is to crawl all over an accident scene, laser map it, extract electronic data from the vehicles involved, and then reconstruct the scene in a 3D model to depict what happened. The evidence these professionals gather is usually far better than that which is gathered by the police, and so their testimony and work product are often far more persuasive to a jury.
4. Car Accident Lawyers Are Not The Right Choice
A successful car accident attorney (like the ones who advertise in flashy TV commercials) usually resolve hundreds or thousands of car accident cases a year. These same attorneys may only handle a few commercial truck accident cases in an entire career. There just aren't as many truck accident cases, so most car accident lawyers rarely ever have a chance to develop the skillset. Further, commercial truck accident law and investigation are far more complex, trucking company defense attorneys are a more skilled opponent, and the stakes are much higher.
To be perfectly blunt, a surprisingly large number of car accident attorneys lack the skill, resources, and experience to successfully resolve a commercial truck accident case. Clients who want to win should instead choose a lawyer whose practice focuses specifically on truck accident cases, not one who merely dabbles or who aspires to one day be a respected truck accident lawyer.
5. You Are Under Investigation
There are two parts to every injury and wrongful death case. The first is the "who is to blame?" part and the second is the "how much must they pay?" part. Trucking company lawyers long ago learned that sometimes the best defense is not to deny that their driver was at fault. Instead, they try to argue down the amount to be paid to the victim.
The best way for them to compel a jury to award you less money is to get the jury to dislike something about you. The best way to make that happen is to spy on you, find something they can take out of context, and then act as if it is representative of who you are as a person.
Most people don't consider themselves to be susceptible to spying. "Who cares if someone talks to my former intimate partners, looks at my social media, or records me while I'm driving to work? I've got nothing to hide." But the thing you must understand is that it doesn't matter if they find any real dirt. They just need to find something they can misconstrue. Don't make the mistake of thinking that could never happen to you.
6. Moses Came Down from the Mountain with Stone Tablets, Not Police Reports
One of the biggest mistakes that truck accident victims make is to assume that, since a police report puts the truck driver at fault for a crash, the trucking company and their insurers must compensate the victim for their losses. That's just not true. Police reports have no binding effect on anything. The only entity that can make a binding determination of fault is a jury. People who make the mistake of thinking that a favorable police report will save the day are apparently unaware that a judge may or may not even allow the report to be admitted as evidence.
7. Only a Fool Represents Himself
Even attorneys hire other attorneys to represent them, when they're involved in legal matters. Why would an attorney hire someone else to do a job that they're presumably qualified to perform? First, the law is vast and complex. A lawyer who is a master of contract law may have very little understanding of probate law or personal injury law.
More importantly, it's human nature to view ourselves in the most favorable light possible. This trait poisons a case. What truck accident victims need is an advocate who can view the case through the eyes of a jury. How you view your own case doesn't matter in a court of law.
Chapter 2 - Successful Strategy
Many attorneys believe that since they're the lawyer, you should blindly trust them to get the job done. We take a different approach. We believe that it's your case, so it's our responsibility to lay out our strategy to resolve your case, explaining why we believe it's the correct approach.
In this section, we'll walk you through what we believe is the most successful way to litigate a truck accident case, starting with a solid investigation and going all the way through a jury verdict. By the end of this section, you won't have to rely on our track record or awards to decide if you should trust us with your case. Rather, you'll understand what we do and, more importantly, why we do it that way.
Every Successful Commercial Truck Accident Case Starts With an Independent Investigation
There are at least three stories in every crash: There's the victim's version of events, how the offending driver saw things, and then there's what the evidence says happened. Whether your case succeeds or not depends on how much the evidence supports your version of events. That is why conducting an independent investigation as soon as possible is vital for your case.
The mistake that many people make is to assume that the investigation done by the police is good enough. It isn't. Police are trained to look for crimes, first and foremost, and to collect data for state statistics, secondarily.
Does that mean that cops are unconcerned with who is at fault? No. Many cops really care about getting it right, since they understand that their report is one piece of the puzzle when victims try to rebuild their lives. Rather, the point we're making is that cops pay no price for getting it wrong, which leads many cops to conduct sloppy investigations.
Further, the police rarely have the tools to investigate as thoroughly as a private, for-hire accident reconstructionist.
Consider this real-life example. Recently, a family, who was rear-ended by an 18-wheeler near El Paso, TX, hired us to litigate their case. When we began our investigation, one of the first things we looked for was the engine control module (ECM), which some people refer to as the truck's "black box." It can record information such as the vehicle's speed and whether or not brakes were applied prior to a crash.
We contacted the investigating authorities and they explained that they didn't have custody of the ECM, because the trucking company offered to pull the data and then turn it over to the investigators so they could include it in the final report. In other words, the cops allowed the trucking company, whose driver was accused of rear-ending and injuring a family, to furnish the evidence in the case. That's like letting a murder suspect dust their own apartment for fingerprints.
We don't mean to belittle the investigating officers. They had an ostensible rationale for letting the trucking company handle that part of the investigation: the officers didn't have the equipment to pull the ECM data themselves. Nevertheless, it was a stark reminder that the police often can't obtain the same level of detailed evidence that private accident reconstructionists can acquire.
Making your case without evidence is next to impossible, which makes gathering evidence crucial for your case's success. You need someone on your side who knows what to look for, where to look for it, and who the right people are to gather and interpret that evidence.
If not the police, then who should handle your investigation? The best approach is to hire an attorney, and your attorney will select an accident reconstructionist. Together, they will delve into the specifics of the accident and collect the necessary evidence.
It should be mentioned that, just like lawyers, not all accident reconstructionists are created equal. In our firm's 30-year history, we have worked with many accident reconstructionists, and have developed a trusted network of those whom we regard as both good at investigating and good at testifying.
What Evidence Do I Need to Prove the Truck Driver is at Fault?
What's the point of evidence in a court of law? Clearly, it is to give the jury what it needs to assess the accident. Every jury wants to know:
- How did this crash occur?
- Why did it happen?
- How much are the victim's losses from the crash?
Therefore, the evidence you need is whatever is necessary to answer those questions.
To understand how a crash occurred, video footage is often one of the better ways to explain your position to the jury. Often this video comes from the truck's dash camera or surveillance cameras from nearby businesses. But what if there is no video of the accident? Then you make some. An accident reconstructionist will conduct a laser mapping of the scene and render it in a 3D modeling program. He will then feed the collected data into this program, enabling it to render an animation that shows the jury what happened in the accident, as supported by the collected data.
It's important not to stop the investigation here. For example, an accident reconstructionist can scientifically show that a crash occurred because a commercial truck didn't apply the brakes in time, but a jury will still want to know, "Why didn't the driver brake?"
To understand why a crash occurred, one must gather evidence about the driver's state of being at the time of the crash. One place to start is to obtain the driver's cell phone records. It's surprising to learn just how many wrecks occur because a commercial driver is doing something that they shouldn't be doing behind the wheel.
For instance, several years ago, we represented a family who lost a loved one when a truck driver slammed into several cars that were stopped in traffic. The accident reconstructionist determined that despite having a clear view of the stopped traffic, the truck driver didn't apply his brakes until a split second before the collision. Our firm obtained the truck driver's cell phone records for the time leading up to the crash. This wasn't a standard practice then, but it is now. In this case, those records clearly showed that the trucker was watching pornography on his phone in the minutes leading up to the crash, while traveling down the road at 70 miles per hour.
As you can imagine, once we had evidence showing their driver killed someone because he was watching adult movies while driving, the trucking company never wanted the case to get before a jury. They quickly made a generous settlement offer to the client.
It's not just cell phone data that speaks to why a crash occurred. Sometimes the smoking gun is the driver's Hours of Service logs, showing they were on the road longer than allowed by law. Other times, it could be a company policy that permits dangerous behavior behind the wheel or fails to punish known offenders when they are caught breaking the rules. Sometimes, the answer is in the company's hiring and training practices. A small percentage of truck drivers cause more than their fair share of crashes, but companies with lax hiring policies give these bad drivers a third, fourth, or even fifth chance, with the hope that this time, the driver won't be dangerous.
Further, one bad practice we have seen time and time again, is that trucking companies reward drivers who break the rules by giving them preferred routes and better pay. Some truck drivers, are willing to forge their Hours of Service logs thus creating a paper trail that reflects that the driver was on the clock for 14 hours in a 24-hour period. In reality, however, the driver will actually work for, say, 20 hours straight, long past the point of exhaustion. This allows them to deliver their cargo quickly, which makes the customer happy, which makes the trucking company want to give the driver certain rewards. But the consequence of this behavior is that the company is in effect paying the driver to break the rules and put everyone on the road at risk.
The main takeaway is that a professional investigation goes far beyond what's contained in a police report, beyond the crash scene, and delves into any area where decisions were made that potentially led to a crash. Using that as a starting point, it's easy to understand why a police investigation just doesn't hit on all of the areas you need it to. Evidence is the bedrock of your case, and gathering that evidence requires having someone on your side who knows where to look.
Evidence Proving the Other Driver's Fault Is Only Half the Battle
While a proper investigation will gather the evidence to prove that the truck driver is at fault, this is only half the battle. To win, you also need evidence of your losses. This sounds simpler than it is. In reality, the trucking company's defense attorneys can (and certainly will) dispute every dime you demand.
Let's look at medical bills. You may believe that once you prove the other driver caused your injuries, they must pay for your medical bills. What is there to dispute? Show the other party the bills and they write you a check, right?
The first thing the other side can dispute is whether or not the bill you show them is even real. After all, can't anyone just print an invoice on their home computer? Authenticating your bills requires not the bill, but a sworn statement from the medical provider testifying that the bills are indeed real. Given the complexity of our medical system, it's not uncommon to need a half-dozen or more of these sworn statements from different medical providers, all to prove to the court that your medical bills are authentic.
Now, for an experienced law firm, proving up medical bills is a walk in the park. But you can see how an inexperienced lawyer or a self-represented client could fall into the trap of assuming that medical bills are a type of evidence a court will automatically allow a jury to see, when, in fact, there is a process for transforming those medicals bills and records from useless paper into useful evidence.
Clearing that hurdle is only the first step. Defendants will also use their might to dispute whether particular medical treatments were necessary. For instance, if you needed 6 months of physical therapy, the trucking company's attorney may argue that you only really needed 3 months, thus they shouldn't be on the hook for the extra treatment. They'll do the same for surgeries, rehab, the length of your hospital stay, etc. Defeating this strategy usually requires a medical expert to walk a jury through, procedure by procedure, how the care you received was both necessary and resulted from the injuries you sustained in your accident.
They'll make the same kinds of arguments for lost wages and other aspects of the financial impact the accident has had on you. To counter this, you'll want to employ an economist to calculate your lost wages and project how that will affect you long-term. Similarly, if you are unable to return to work, you'll want a vocationalist to testify how your job prospects are limited due to the accident.
The same holds true for wrongful death cases. The burden is on our side to prove that you have experienced emotional distress. This can theoretically be established solely by relying on your testimony. But a better approach is to have others testify with respect to how the loss of your loved one has affected you. Often, this means our firm will help arrange grief counseling and will have your treating provider testify.
We would guess that this makes for exasperating reading. For many truck crash victims, their losses are there for anyone with two eyes to see, so it's frustrating to go through many hoops to prove that what they've endured is how they say it is. While gathering evidence in such a thorough, methodical way may strike some as needlessly complex, we know from experience that the only way to avoid the pitfalls that crop up in litigation is to have the ability to prove the truck driver's fault and document every aspect of your losses. To put it a different way, it's challenging work to engage in such a rigorous analysis in virtually every case. But we do it because it works.
Once The Evidence Has Been Gathered, Now it's Time to File a Lawsuit
There's some confusion about what a lawsuit is. Simply put, a lawsuit is a document that notifies a court of an alleged wrong and asks the court to step in and resolve the dispute. In other words, you're asking the court to play the part of a referee.
While the purpose of courts is to resolve disputes, obviously courts can't resolve every dispute. The law spells out which disputes are appropriate for courts to resolve, and everything else falls outside of the court's purview. As such, the first step in any lawsuit is to frame the lawsuit in such a way that the court is convinced it is a matter that can and should be resolved by the court. To that end, a lawsuit must:
- Notify a court of harm you've suffered,
- identify who you believe to be responsible for that harm,
- present a legal theory under which you can hold the other party responsible,
- discuss why that court is the proper place to resolve the dispute,
- and finally, propose to the court a remedy that it can impose.
One reason not to rush into this process is that the company you sue is allowed to ask the court to refuse to hear the case. If you cannot spell out and provide some evidence of harm or that the company you're suing caused that harm, the court is empowered to dismiss your case. The prudent move, therefore, is to file suit once some investigative work has been done, so that you're not making claims in the suit that can't be supported. In other words, choosing when to file suit is part of the strategy, and should not be automatic.
Further, one of the biggest mistakes a lawyer can make is filing a lawsuit that says that Company A is responsible and should be held accountable, only to have new info come to light that says that, actually, Company Z is to blame.
Sometimes this is unavoidable as new info comes to light. But a lawyer should at least try to avoid having to tell the court "Sorry, we sued the wrong defendant." A diligent investigation goes a long way toward that end.
Here is a real-world example of why it's best to conduct an investigation before filing suit. Not long ago, we litigated a case where we represented the family of a man who crashed into a large slab of steel that was hanging off the back of a trailer. There was nothing on the steel (lights, flags, etc.) to alert motorists that it was there. The truck driver then ran a stop sign, forcing the victim to swerve to avoid crashing into the trailer. But being unable to see the steel hanging off the back of the trailer, the motorist who was forced to take evasive maneuvers missed the trailer and collided with the steel hanging off the back. Had he hit the trailer, he would have certainly lived. But the steel cut through his car like a hot knife through butter, and he was killed in the wreck.
We could have filed suit against the truck driver and his employer the day we took on the case, but instead, we initiated an investigation. The investigation revealed that about an hour before the fatal crash, the truck driver pulled up to the factory where the steel was produced, hooked up the trailer to his truck, and headed out with the steel hanging off the back. Had he been better trained, he would have known not to accept a load that was so dangerous, so that mistake was on him. But the investigation showed that the factory made major mistakes themselves.
Supervisors at the factory loaded the steel onto the trailer, even though the trailer was too small for the load. When setting up the trailer, they took no steps to alert other motorists that a giant piece of steel stuck out further than the trailer. Those at the factory also set up a delivery schedule that put the trucking company in a position where they had to take the load as it was or give up the business. In short, actions taken by those at the factory played a significant role in the crash.
Had we rushed to file suit, we might have erroneously stated that the truck driver was the only one to blame. Suing only the trucking company would have left the factory off the hook for their bad behavior. If we sued both companies on a hunch before we had evidence against the factory, the factory could have argued that we didn't have any evidence against them and asked a court to dismiss the suit against them.
While it is tempting to involve the court immediately, the court's powers do more to advance your case when you already have evidence telling you where to direct them.
Advancing Your Case Through the Discovery Process and Depositions
With the initial investigation complete, and a lawsuit filed, your case moves into discovery. The initial investigation is good at helping us explain how the accident happened, whereas discovery and depositions are usually where we learn why the accident happened.
During discovery, we use the authority of the court to force the defendants to give us access to incriminating documents. For example, we once litigated a case where a truck driver blew through a stop sign and blocked a major highway with his trailer. Our client suffered catastrophic injuries when his vehicle collided with the truck's trailer. During the initial investigation, we requested the driver's employment history from the trucking company. They told us, "without a court order, we're never going to hand those over to you."
There was a good reason for this. The records indicated that the company knew that the driver had been fired from 3 other jobs for dangerous driving. They hired the driver anyway. Knowing that this document was a "smoking gun," the company's attorneys threw up every roadblock they could to keep us from getting it. Once we had it, they knew they didn't have a leg to stand on and negotiated a fair settlement for our client.
Further, we rely heavily on subpoenas to compel sworn testimony from witnesses and other participants in the case. This testimony usually comes to light in a formal setting called a deposition. Depositions are really where a lot of the magic happens in a truck accident case. Defendants whom we depose often blunder their answers and reveal how little they know about the important responsibilities they have been tasked with. A surprising number of accidents happen because of a cascade of human error and plain-old incompetence at the corporate level, which trickles down to the tasks done by employees. This human error and incompetence is hard for a defendant to hide, and we often get a lot of good material from depositions by asking questions that enable defendants to reveal their true nature.
Questioning witnesses about evidence sometimes leads to more areas to investigate and more targets for subpoenas, but its biggest use is gauging how well these witnesses are likely to perform in front of a jury. There isn't a person alive who doesn't think that if they only explain their point of view, a jury will have no choice but to see things their way. Depositions are a good way for us to prove to the defendants that they should be concerned about getting in front of a jury when we're the ones asking the questions.
On the contrary, our clients typically do a great job in their deposition. We spend a lot of time prepping them, enabling them to become comfortable, candid, and capable deponents. When defense attorneys see that our clients aren't rattled under questioning, it usually makes them far less eager to try the case in front of a jury.
In the background of completing the accident investigation and depositions is a date set by the court for mandatory mediation. This marks the next phase in the case.
How Does Court-Ordered Mediation Work?
In Texas cases, courts order both sides to attempt to resolve cases before they go to trial. The form this takes is mediation. Both parties to the case agree to have another attorney, who is not involved in the case, look at each side's case and attempt to broker a fair resolution. This person is the mediator.
Usually, both sides, including attorneys and clients, show up at the mediator's office where they're stationed in separate rooms. The mediator takes turns going back and forth between the two rooms, examining the evidence, hearing why each side believes they should prevail, as well as exchanging offers between the two sides.
The mediator also offers a neutral perspective on the case. This means they are free to discuss what they believe are the strengths and weaknesses of each side's case. In a serious truck accident injury or wrongful death case, many defense firms wait to see how a mediator reacts to their case before seriously negotiating.
Usually, the process works exactly as intended. When confronted with the weaknesses in their case, most attorneys work much harder to fairly resolve the case. This is likely why so many cases reach a fair settlement at this point.
You may wonder, "Why would the trucking company wait until mediation to make a serious offer to settle my case?" To answer this question, we must take a step back. The only thing that can compel a trucking company to pay for the damage they did to you is a jury verdict. Until they're forced into a courtroom, time is on their side. Since you have the burden to prove your case, it costs them nothing to wait until mediation to see if your attorneys can actually make a case that will persuade a jury. By showing the defendants that the mediator generally agrees with our legal theories and thinks we have a winnable case, the defendant suddenly feels compelled to do the right thing.
With that being said, nothing forces either side to settle at this stage. Both parties are free to walk away and take their chances at trial. As your attorneys, part of our job is to impress upon the trucking company that the last thing in the world they want to do is present their case before a jury.
One of the bigger misconceptions that most commercial truck crash victims have is that their lawsuit will end up at trial. The truth is that 95% of personal injury and wrongful death cases end in a settlement before trial. It's not uncommon for cases to settle on the courthouse steps, as the attorneys are heading inside to pick a jury.
None of this diminishes the importance of a trial. There are times when the defendant won't see reason, and trying the case is the only way to obtain fair compensation for your losses. There's also no way to predict ahead of time which cases will go to trial and which will settle. That's why it's important to prepare your case as though it will end up in front of a jury, even if it's statistically unlikely. If a trucking company suspects your lawyer won't try the case, their offer will be lower than it should be, because, at the end of the day, they know that your lawyer's not ready to force them to pay for their mistake.
From the client's perspective, the most difficult part of a trial is that they must testify in court. Whether you look forward to it or dread it, the important thing about preparing you for your role in the trial is to keep a sense of perspective. While your testimony is important evidence, it's not the only evidence in your case, so you shouldn't feel like you're carrying the whole case on your back. In reality, it's pretty rare that a client's testimony is key to proving who was at fault, and this is because of the thorough investigative work previously discussed. Whether your testimony is the linchpin or not, our attorneys will work with you, practicing your testimony, until you feel confident that you'll do your best.
Chapter 3 - How Texas Personal Injury Law Works, Generally
When we say "truck accident case," that's really a euphemism. In fact, people who are injured by a commercial truck have a personal injury case that happens to be against a trucking company. As such, in order to know how an injurious truck accident case is handled, one must understand the basics of personal injury law.
Stripped down to its basics, personal injury law lays out:
- what you have to do in order to prove a case (case elements)
- to what degree you must prove your claim (burden of proof)
- and lastly instructs the jury how to properly divide blame between parties (apportioning blame).
This section covers those three topics and also discusses how much time the law provides for you to pursue a claim.
What Are the 4 Elements of a Personal Injury Claim?
Under the broad umbrella of "personal injury law," many theories of liability exist to hold a wrongdoer accountable, all of which are highly circumstantial. Person A may be liable to Person B under a theory of intentional infliction of harm, strict liability, private nuisance, etc. As interesting as all of those theories of liability are in an academic sense, very rarely do any of them apply to truck accidents.
In reality, nearly all truck accident personal injury cases are negligence cases. In other words, the trucking company is liable to you when you prove that they or their driver were negligent.
Negligence essentially means "carelessness." But it's not as simple as standing up in court and declaring that someone was negligent. On the contrary, a jury must review the evidence and conclude that the trucking company or the truck driver was negligent. Our job is to equip the jury to reach that conclusion.
So, then, how does one prove that a trucking company or their driver was negligent? There are four case elements that must be proved to show that an act of negligence occurred.
Case elements are to a legal case what ingredients are to a recipe. For any type of case, you must prove that all of the elements are present in order to have a case. It's a bit like how you need all three ingredients for a peanut butter and jelly sandwich: bread, peanut butter, and jelly. If you only have bread and peanut butter, you have a sandwich, but not a PB&J sandwich. If you only have jelly and bread, that's obviously not enough to make a peanut butter and jelly sandwich, either. Lastly, if you have peanut butter and jelly, but no bread, all you have is a mess.
Just like you need all the ingredients to make a peanut butter and jelly sandwich, you need all the necessary elements to make a legal case. If you're missing even one element, then the case fails and you lose. So, let's delve into the "ingredients" necessary to prove that negligence occurred.
In order for someone to be liable for the harm they cause to another, it must first be shown that they owed a legal duty not to engage in the conduct that caused the harm.
Society imposes on all people some type of legal duty. For instance, we all have a duty to refrain from engaging in conduct that could hurt someone else without justification. This is known as the duty to behave as a reasonably prudent person.
But additional duties are imposed upon some persons and businesses by virtue of the conduct they choose to engage in. More specifically, when one holds themselves out as a professional for hire, they take on additional duties that non-professionals do not.
For example, if you were to give one of your friends some advice that turned out to be really bad advice, and it caused them to suffer major problems, you likely would face no liability. Why? Because you have no duty to provide competent advice. But if we imagine instead that you are a psychologist or an attorney and you give a client bad advice, you could be liable for that, because professionals do have a duty of competency.
The law imposes upon professionals the duty to behave as a reasonably prudent professional. We license professionals such as doctors, lawyers, alcohol providers, gun dealers, and truck drivers because their jobs give them the potential to harm people in ways that others cannot.
For truck drivers, in particular, it is not enough that they simply follow the general rules of the road, but they have a duty to comply with relevant industry regulations that simply don't apply to most motorists. When they fail to fulfill these responsibilities, they can be liable for injuries or deaths that result.
This element builds off of duty. It means that the party who hurt you failed to fulfill their duty to you (i.e., they breached the duty they owed).
If your attorney can prove that the defendant trucking company owed you a duty and breached that duty, the next step in making your case is showing causation. The bulk of the dispute in truck accident litigation is over who caused the accident. The burden is on you and your attorney to prove that the truck driver's failure to fulfill a duty was the legal cause of your losses. It's also important to note that causation is a question that juries decide. So while the law compels you to argue causation in a particular way, juries of everyday men and women ultimately decide what specific act or acts were the legal cause of the accident.
There can be many causes for an accident in a strictly logical sense. But that's not what is explored in court. The role of the jury is to pin down the one or two causal factors that are of legal significance.
For example: Let's say you wake up and hit the snooze button on your alarm clock. This results in you getting out of bed later than normal. You decide to have waffles for breakfast instead of a piece of fruit, which puts you even further behind. Then you remember that you forgot to get gas the night before, so you stop at a gas station. As you're pulling onto the road from the gas station, a drunk driver hops the curb and crashes into your car.
Had you gotten up earlier, left the house sooner, or filled up your tank the night before, you wouldn't have been exiting the parking lot at that exact moment. In a strictly logical sense, all of those choices you made were causes of you being involved in the accident. But, again, courts are concerned with identifying the legal cause, and in a Texas injury or fatality case, the type of legal cause we're concerned with is called proximate cause.
A jury determines that some act was the proximate cause of an injury when two sub-elements are met:
- cause in fact
Cause in Fact
To determine whether some act was a cause in fact of the injuries sustained, courts use what is known as the but for test. That is, they attempt to define the one causal fact in the whole array of possible causes where the accident would not have occurred but for that event occurring.
Let's go back to our example from earlier wherein you left the house late and were hit by a drunk driver. If we apply the but for test, we can easily pinpoint the cause in fact for that accident. The sentence "but for the victim hitting the snooze button, this accident wouldn't have happened," is nonsense. Hitting the snooze button was perhaps a logical cause of the accident, but it wasn't so important that we can reasonably say "but for that act occurring, the accident wouldn't have happened." Similarly, "but for the victim eating waffles or putting gas in their tank, this accident wouldn't have happened," is equally absurd. However, when we say, "But for the drunk driver losing control, this accident wouldn't have happened," it makes perfect sense. That semantic process is how the but for test is applied.
And in that example, because the drunk driver's conduct satisfied the but for test, it was the cause in fact, and everything else that led to that moment was of no legal consequence.
Once some act is determined to be the cause in fact by way of the but for test, we then consider whether the harm that occurred from that cause in fact was foreseeable. In other words, the second sub-element of proximate cause is foreseeability.
The idea here is that people shouldn't be liable just because they set a chain of events into motion. Rather, in order for a defendant to be liable, it must be shown that a person of ordinary intelligence would have foreseen that engaging in the conduct the defendant engaged in could result in the harm caused.
Putting Cause In Fact and Foreseeability Together
Imagine you go to a public swimming pool with a friend. As a prank, you decide to push your friend into the pool. Your friend goes head-first into the shallow end, hits the bottom, and suffers a severe brain injury. When determining whether your conduct was the proximate cause of the friend's injuries, the court will first do the but for test, and will easily conclude that, "but for you pushing your friend into the pool, he would not have been injured." Then the court would ask whether it was foreseeable to a person of reasonable intelligence that pushing someone into a pool could result in the type of injury sustained. The court will easily conclude that it would have been foreseeable. Consequently, both sub-elements of proximate cause have been established, and it will be determined that you were the proximate cause of your friend's injuries.
Let's change the facts slightly. Imagine that you pushed your friend into the pool, but then an alligator emerged from a drain pipe and attacked him, causing serious injuries. When the court conducts its analysis, it is highly unlikely it will conclude that it was foreseeable to you that by pushing your friend into the pool, he would be attacked by a hidden alligator. Since the foreseeability sub-element cannot be met, the court would conclude that you were not the proximate cause of your friend's injuries.
How Does Causation Typically Factor Into Truck Accident Cases?
In every truck accident case, one must prove that the conduct of the trucker or the trucking company (or both) was the proximate cause of the accident. As such, trucking company lawyers love nothing more than arguing over proximate cause. The oldest trick in the book is simply for them to point the blame elsewhere or act as if they had no way to know that the accident would have occurred.
The last element to a negligence claim is damages. Damages means a loss suffered by the victim, and the adage of "no harm, no foul" is the perfect summary of the damages element. If you cannot prove that damages were incurred by the victim, then no act of negligence occurred.
For instance, if a drunk driver blows through a stop sign while street racing and almost hits your car, you won't be able to prove there was negligence. Sure, the drunk driver owed you a legal duty, he breached the legal duty, and if you had any damages, his conduct would have been the proximate cause of those damages. But since he missed your car, you have no damages. And since you have no damages, the allegation of negligence cannot be proved.
Damages can be physical, emotional, or financial. Texas courts recognize 13 types of damages in personal injury cases. They are:
- Medical expenses, past and future - This means that an injured person has the ability to recover the cost of treating the injuries incurred as the result of someone else's carelessness.
- Loss of past earning capacity - If you were unable to work because of your injury, then you may be compensated for lost wages.
- Loss of future earning capacity - Many injuries prove so severe that the injured person is unable to return to their previous career, or in some cases, work at all. These damages compensate victims for that loss.
- Loss of consortium - The law recognizes that certain relationships, like those between a husband and wife, or a parent and child, are irreplaceable. When another's carelessness damages or destroys these relationships, the person whose actions destroy that relationship may owe compensation.
- Physical Impairment - Compensates victims for the lower quality of life they enjoy as a result of an injury.
- Physical Disfigurement - Some injuries leave horrific scars, mangled limbs, or other features that make the victim stand out from a crowd for the rest of their lives. This category of damages compensates victims for the mental and social costs associated with such injuries.
- Loss of Household Services - In addition to emotional bonds, families also thrive by dividing tasks among themselves. Laundry, lawnmowing, cleaning, cooking, even minor home repairs all save families money. When the person who usually performs these tasks can no longer do so because of an injury, the family suffers a real loss, which costs money to replace.
- Mental Anguish, past and future - Accidents don't just leave physical scars. People can suffer depression, anxiety, and other mental issues after a serious injury. Victims can recover compensation for these losses.
- Exemplary Damages (AKA Punitive Damages) - Punitive damages are sort of like a fine a jury makes a defendant pay to an injured person above and beyond the quantifiable losses the injured person has incurred. In personal injury cases, punitive damages are available to victims when they can prove that the person or business who hurt them engaged in gross negligence. Gross negligence is worse than ordinary negligence. To prove gross negligence, the victim must demonstrate that their injuries resulted from behavior that shocks the senses. In other words, their injuries weren't caused by ordinary carelessness, but by a shocking disregard for the safety of others. These damages seek to impose a penalty on bad actors, on top of the costs they inflict on others.
Defense attorneys work tirelessly to dispute every dime of damages. Often they will hire doctors to testify at trial that diagnostic tests were too numerous and treatments unnecessary or that the amount charged by your doctor was unreasonable.
Another defense company tactic is to argue that some of your injuries pre-dated the incident. If you tore an ACL playing football in high school that could become an issue if you injure the same knee in your accident. The defense attorney's argument would be that any medical expenses weren't caused by the crash, but by your old high school football injury.
It's hard to downplay the role that damages play in any personal injury case. While duty, breach, and causation are necessary parts of any negligence lawsuit, it doesn't cost a trucking company a dime to admit that their driver caused your injuries. The element that makes all the aforementioned elements matter is damages.
What Is the Burden of Proof for My Case?
Before formally defining burden of proof, it's helpful to start with an example. Suppose that you're involved in a wreck with another vehicle at a 4-way stop sign. Obviously, someone failed to stop and that person is responsible for the crash. You swear that you stopped, only moving into the intersection when you had the right of way. The driver whose car struck yours also claims that they stopped and only moved into the intersection when they had the right of way. In this situation, one of you is wrong and the other is right.
You take the dispute to court. Again, the only evidence available is your story and the other driver's. How is a jury to decide what to do? What instruction does the law give them? Burden of proof is the area of the law that attempts to resolve this situation.
In a Texas personal injury case, the burden of proof is called the preponderance of the evidence. Preponderance essentially means "majority." So, we can translate "In a Texas personal injury case, the burden of proof is the preponderance of the evidence" to "In a Texas injury case, you win by showing that the evidence favors your side of the story slightly more than the other guy's story."
It may be a bit cliché, but preponderance of the evidence is a real-world example of the scales of justice. Place both parties' evidence in support of their position on each side of the scale and whichever way the scale tips wins the argument. For each argument that you make, the jury weighs your evidence that your claim is true against the other side's evidence that it's not true. Meeting the burden of proof only means that your arguments and evidence rise to the level that a jury must consider them in their verdict.
Now if we return to the scenario we started with, how does a jury decide when the only evidence is weighing what he said versus what she said? First, testimony is evidence, so the jury may find either you or the person who hit you more believable. In other words, you may tell the same story, but they find one party more credible. In that case, the scales will tip in favor of the more credible party. By now, it should be clear why our firm focuses so heavily on investigations and evidence gathering. It's so you are never in a position where the case boils down to your word vs. the truck driver's word.
After deciding what weight to give the evidence presented, the jury moves on to one of its main tasks, assigning blame for the accident and resulting injuries.
Another complexity is that a jury can find that more than one party is to blame. When this happens, their job is to assign the correct amount of blame to each of the participants in the case, in the form of a percentage. 100% means that someone is completely to blame for an injury, while 0% means the jury finds them blameless. The percentages can fall anywhere in between. We refer to this process as apportioning fault.
Let's unpack that a little with an example. Jose is sitting in his car, stopped at a red light, when Smitty, driving a delivery truck, fails to slow down and rear-ends Jose's car. As a result of the collision, Jose suffers a shattered femur. Jose sues Smitty, and the case ends up going to trial. The evidence shows that the crash happened exactly as described above. In that scenario, it's likely that the jury will put 100% of the fault on Smitty.
In the real world, scenarios where one party is completely at fault, while the other is entirely blameless are rare. Driving is complex, and few people follow all of the rules of the road, all of the time. To see how juries apportion fault in most cases, we need to look at an example that isn't so clear-cut.
Suppose that Smitty and his delivery truck are at a stop sign on a side street, waiting to turn onto a main road. Smitty pulls out in front of Jose's car, causing Jose's car to strike the side of Smitty's truck, breaking Jose's femur. Jose claims that Smitty's failure to yield the right of way caused the crash and his injuries. On the contrary, Smitty claims that he looked and saw a clear roadway, then turned out onto the road. However, partway through the turn, Jose came speeding up and crashed into his truck.
During the trial, Smitty's attorneys present convincing evidence that, at the time of the crash, Jose was going 10 miles per hour over the posted speed limit. Smitty's attorneys then argue two things:
- But for Jose speeding, the crash would not have occurred;
- had Jose been doing the speed limit, the crash would have occurred at a lower speed, and Jose wouldn't have broken his leg.
What is the jury to do with these arguments? Smitty shouldn't have pulled out in front of Jose, but at the same time, Jose shouldn't have been speeding. A reasonable jury will still likely look at that fact pattern and put most of the blame on Smitty, but they're not going to let Jose off the hook entirely. Perhaps, they would conclude that Smitty is 90% to blame for the crash and place 10% of the fault on Jose. If Jose had been driving even faster over the speed limit, it's likely a jury would place more blame on him. In fact, it's likely that if Jose was doing 40 or 50 miles per hour over the speed limit, a jury might find him responsible for the crash entirely, not Smitty.
How Does The Doctrine of Comparative Fault Impact My Case?
Now that you understand how a jury apportions fault, it's important to circle back to the law to understand how this process impacts your case.
Originally, personal injury law held that an injured person would lose their case if the jury found that they were even 1% to blame for the accident. This was known as the doctrine of contributory negligence. Four states and Washington, D.C. still use this standard.
Over the last century, it dawned on people that the doctrine of contributory negligence is too harsh a standard. It allowed many people and companies who negligently caused serious injury or death to avoid responsibility for their actions, simply because the person they injured or killed also did something wrong.
As a result, many states got rid of the doctrine of contributory negligence and instead adopted a competing doctrine called the doctrine of pure comparative fault. In its pure form—which is the law in California and a handful of other states—if the injured person is also found to be partially at fault for the accident, the amount of their compensation is reduced but not eliminated altogether. Imagine a case in a state like California, where an injured person has $100,000 in losses and is found to be 20% to blame for their injuries. The trucking company, however, is found to be 80% to blame. Under the old contributory negligence standard, the injured person would lose flat-out, since they were found to be partially to blame. But under the doctrine of pure comparative fault, they would still win their case. However, the trucking company would only have to pay 80% of the damages, since they were only 80% to blame. This standard is seen as more fair to plaintiffs than the old contributory negligence standard, but some argue that it's unfair to defendants. For example, imagine that a truck driver was going 1 mph over the speed limit. That is technically a violation of the law. While traveling 1 mph over the speed limit, a pedestrian runs out in front of the 18-wheeler, resulting in the pedestrian suffering serious injuries. If the pedestrian convinces a jury that the truck driver is 1% to blame for the accident, the pedestrian wins compensation for 1% of their losses, even if the jury says that the pedestrian is 99% to blame for his own injuries. Much like the doctrine of contributory negligence, the doctrine of pure comparative fault seems biased toward one party at the expense of the other.
For that reason, the majority of states reject both the contributory negligence standard and the pure comparative fault standard. Instead, they employ a middle ground approach, called the doctrine of modified comparative fault. Texas is one such state.
Under the doctrine of modified comparative fault, a plaintiff doesn't lose if they are merely a little to blame. Instead, they lose only if they are found to be more to blame than the person they sued. But their damages award is reduced in proportion to the fault that is placed on them.
In other words, one of three things happens:
- The injured person is found to be 0% to blame, and the party they sued is found to be 100% to blame, so the injured person wins and gets full compensation... or,
- The injured person is found to be partially to blame, but less than the party they sued, so they win their case. However, the injured person's damages award is reduced in proportion to the amount of fault the jury puts on them (e.g., if the jury says they are 30% to blame for their own injuries, the defendant gets a 30% discount on what they must pay)... or,
- The injured person is found to be more to blame than the party they sued (51% at fault or more), so they lose their case flat-out.
Takeaway: The Trucking Company Only Needs to Put 51% of the Blame on You to Defeat Your Case
The takeaway from the last section is that, under the laws of most states, if the trucking company's lawyers can convince a jury to put 51% of the blame on you, you get nothing.
This is one reason that trucking companies always fight claims against them. They know they don't have to be blameless. Instead, they just need to shift more blame on you than you can put on them. From their perspective, that's not a very high bar to clear, so it only makes sense for them to explore the possibility that they can make a credible argument that you're to blame for your crash. If they manage to pull it off, then they avoid all liability for their actions.
Any Amount of Blame They Put on You Reduces the Amount that the Trucking Company Must Pay
Even if the trucking company can't convince a jury to put more blame on you than on them, any blame the jury puts on you is a win for the trucking company, because it reduces the amount of money they end up paying.
As a general rule, modified comparative fault makes it so that people only pay for their portion of a crash. If a jury decides that you have $1,000,000 in losses and puts 100% of the fault on the trucking company, then the company pays the whole $1,000,000.
If the jury decides that the trucking company is only 90% to blame for your losses, then Texas law only requires them to pay for 90% of your losses, or $900,000 in this example. For most trucking companies and their insurers, saving $100,000 is a win, when their driver is to blame for a crash.
People like to blame lawyers for the complexity of settling a truck accident injury and wrongful death case, but the truth is that the law creates powerful incentives to fight every single detail of a case. One of the biggest reasons that there is no such thing as an open-and-closed truck accident case is because trucking companies and insurers get money in their pocket for every bit of blame they put on you.
They Won't ONLY Try to Blame You
Most people think of a case in terms of black and white, right and wrong. Somebody wins. Somebody loses. However, truck accident law is not that simple. I've already discussed the incentives that trucking companies have to contest every bit of fault, but there's one other strategy that also complicates truck accident cases, deflecting blame.
Let me give you an example. A couple of years ago we read about a case—one in which we did not participate—down in San Antonio, that involved a trucking company whose driver veered off the road and killed another motorist who was parked on the shoulder. It was clear to everyone that the deceased motorist was 100% blameless in the crash.
The attorneys for the trucking company fought the case, despite the long odds. They managed to convince a judge that the crash could have resulted from a mechanical failure on the tractor-trailer, caused by a manufacturing defect. The trucking company's attorneys even managed to persuade a judge that the manufacturer of the "defective" component should be a co-defendant in the case. The company that made the "defective" part was located halfway around the world, with zero ties to the United States, and they didn't even bother showing up for the trial to defend themselves.
This created what lawyers refer to as an "empty chair defendant." The most shocking part of this case was that the jury ended up ruling in favor of the victim's family, but they put 100% of the blame on the foreign manufacturer whose supposedly defective part caused the truck to veer from the road. In short, the victim "won" their case, but received absolutely nothing but a worthless piece of paper saying a company on the other side of the world owed them money.
In reality, it seems unlikely that there was any defective part. Rather, the trucking company's lawyers pulled a clever maneuver and claimed that the defect caused the truck to veer from the road. The victim's lawyer likely didn't take this threat seriously and likely didn't prepare to prove it wrong.
How Long Do I Have to File a Personal Injury Claim?
Now that you know what the law requires you to prove in a personal injury claim and the obstacles in your way, it's important to know that the law limits the time you have to file that claim. This limit is known as the statute of limitations. In Texas, personal injury claims must be filed within two years of the incident or the claim cannot move forward.
While two years sounds like a lot of time, it's important to act as quickly as possible, because the evidence needed to prove your claim starts to degrade immediately after the crash. For example, it's necessary to inspect all of the vehicles involved in a commercial truck accident. The likelihood that a trucking company will hold off repairing a truck for two years is zero. Similarly, the wreckage of any passenger cars involved in a crash will not just sit around for two years. It, too, will either be repaired or junked. In addition, crash witnesses tend to be harder to track down the longer you wait, and their accounts may become fuzzy with time. Those are just two examples of how time degrades evidence.
It's also important to know that a well-prepared lawsuit takes time.
How Does Knowing the Basics of Personal Injury Law Impact Your Case?
We live in a "do it yourself" culture. This leads to a lot of great things, but it also causes problems. Part of the reason it's important for victims to know the basics of personal injury law is to see just how much they don't know. We've seen countless instances over the years where people tried to handle their own case, only to damage it beyond repair. Sadly, we've had the unpleasant experience of telling people who had otherwise great claims that we could not help them, solely due to mistakes they made trying to handle the case on their own.
When you bring on an attorney to pursue a personal injury case, in effect, you and your attorney are partners on the case. You bring your claim and injuries to the partnership, while the attorney brings their knowledge of the law. It's not the common view among many attorneys, but we firmly believe that the client is the "senior partner" in this relationship. It's your case. Without a basic understanding of personal injury law, you aren't in a position to evaluate your attorney's performance, and your case is much too important to be left to blind trust.
Chapter 4 - How Wrongful Death Law Works, Generally
The simplest way to think about a wrongful death claim is as a special category of personal injury, where the injury is death. So in addition to all the rules that govern a typical personal injury lawsuit, extra rules, specific to wrongful deaths, are placed on top. These rules affect who can bring a wrongful death claim as well as the types of damages available to surviving family members. In this section, we'll go over these rules, as well as some unique circumstances that only apply to wrongful death cases.
Who Can File a Wrongful Death Claim?
The Texas Wrongful Death Act allows for "the surviving spouse, children, and parents of the deceased" to bring a wrongful death lawsuit and recover for the losses associated with losing a close family member. As a result, only a spouse, child, or parent can sue. Brothers, cousins, aunts, uncles, and grandparents, while all close relatives, cannot initiate a wrongful death claim.
Who Is a Spouse, Parent, or Child?
Adoption, blended families, and informal marriage all present special circumstances that muddy the waters as to who is a spouse, parent, or child.
Adoptive parents and their children enjoy the same legal benefits as parents and children with a biological relationship. This means that adoptive parents can bring wrongful death claims against someone who kills their adopted child, and adopted children can do likewise if they lose a parent to someone else's carelessness.
Step-parents are in a different boat. If the step-parent legally adopts their spouse's children, then they're adoptive parents, enjoying all the legal rights that come with adoption. However, many step-parents raise children every bit as much as a biological parent, but if they don't go through the formal adoption process, a step-parent cannot bring a wrongful death lawsuit.
Lastly, Texas is one of several states that recognizes informal marriage, more commonly called, "common law marriage." For the purposes of wrongful death law, spouses in an informal marriage are not treated differently than other married couples. From a practical standpoint, informal marriage introduces some complications to a claim, because it's almost certain that a trucking company will argue that the informal marriage isn't legitimate, and the surviving spouse isn't eligible to pursue the claim. This places the burden on the surviving spouse to prove the marriage was in fact real. These hurdles are not a deal-breaker, rather they merely add an extra step to the process. A step I've successfully helped my clients overcome, time after time.
To recap, the following people can file a Texas Wrongful Death Lawsuit:
- Parents of the decedent, biological and adoptive
- Spouse of the decedent, both formally and informally wed
- Children of the decedent, biological and adoptive, minor and adult
Do the Parties in a Wrongful Death Case Share an Attorney or Hire Their Own?
Like a personal injury claim, a wrongful death claim requires you to prove that the negligent trucking company caused your loved one's death, and you must also prove your losses to the court. Here's where things get tricky, while a wrongful death claim derives from the accident that took your loved one's life, each surviving claimant has their own individual claim for losses. Let's take a hypothetical example to better understand this idea, how it can complicate a case, and how to overcome those problems.
Suppose a married man with 2 minor children in his mid-30s is commuting to work when a commercial vehicle runs a red light and strikes his car. The man dies as a result of the collision. It's fairly obvious that the commercial driver's failure to stop at the light is what caused the man's death.
The man's spouse and 2 children each have their own wrongful death claims. In addition, to his wife and child, the man's parents also have claims of their own. As a matter of law, each person is entitled to hire their own attorney and pursue their claim to its fullest (the guardian of the minor children will select the attorney for the children). That's potentially 5 different attorneys all trying to maximize their client's return.
In many instances, the losses suffered by someone in a wrongful death lawsuit clearly exceed the monies available to pay for those losses. If every person with a claim has their own attorney, that attorney has an ethical obligation to get the largest recovery possible for their client. To achieve this goal, the attorney may have to fight not only the trucking company and their attorneys but the other claimants, too, if they've all separated into different camps.
Viewed from a law school lecture hall, this is how the law is supposed to work. An advocate zealously pursues their client's claim. However, we live in the real world, and we believe the view from the classroom doesn't work in practice as well as it does in theory. When claimants all have their own attorneys, those attorneys can spend as much time fighting with each other as they do with the offending trucking company. Fighting among the claimants only increases the chances for the trucking company to avoid full responsibility for their actions, because the evidence used to damage one family member's claim can be used by the trucking company's attorneys to devalue the entire case.
Over the years, we have litigated numerous wrongful death cases where we represented one claimant and another attorney represented another claimant. It can be done successfully. With that being said, there are many benefits to the claimants all being on the same team. The most important benefit to clients is that it prevents the trucking company's defense attorney from using a divide-and-conquer strategy. As I'll explain later, a significant portion of the value of a wrongful death claim comes from the closeness of the relationship between the claimant and the deceased. When everyone is represented under the same roof, it's easier to prevent defense attorneys from turning the ups and downs we have in all of our relationships into something that becomes an issue in the case.
Another benefit of pursuing a case together is that the family can decide how to divide up any recovery at the start of the case, rather than have a bunch of lawyers fighting over it. It leads to a much smoother process, with less potential for hurt feelings.
A final benefit to the family choosing a single attorney to pursue the claim is that they are better able to monitor the strategy to win the case, as well as the progress toward achieving that goal. It's very clear who should be doing what task on the case when there is only a single firm involved. Again, it's not the only way. We've litigated cases with other attorneys where things went well. On the other hand, we've also litigated cases where family members with their own attorneys came away with differing or even conflicting versions about what was going on in the case. All of the attorneys in the case were saying the same thing, but did so differently, which led to misunderstandings.
Ultimately, the wrongful death claim belongs to the spouse, parent, or child of the deceased, and it's up to each claimant (or their legal guardian) to determine who they want representing them.
What Damages are Available in Wrongful Death Lawsuits?
Damages are legally recognized categories of losses that a victim can claim they should be compensated for.
Those categories are as follows:
- Loss of the Decedent's Earning Capacity - Most people work, bringing in needed revenue to the household budget. In many instances, children and spouses depend on a breadwinner for their financial survival. In those cases, recovering this loss is all that prevents the surviving family members from falling into financial ruin.
- Loss of Advice and Counsel - Close family members often play an outsized role in the important decisions we make in life. Whether it be helping with investing or even purchasing cars and houses at better prices, the advice of close family members can have an impact measured in dollars saved or earned by other family members.
- Loss of Services - Who mows the grass at your house? Who cleans the bathrooms? Who does the laundry? Do you have a family member that doesn't even know how to boil water? Beyond the emotional ties, families also have their own division of labor. It takes a lot of work to keep a household running and losing an extra pair of hands places a burden on most families. That's why the monetary value of replacing the services that a family member provides is recoverable.
- Expenses for Psychological Treatment - For many people, professional help after the death of a loved one is a necessary service. This is particularly true of those who lose a loved one unexpectedly to another person's carelessness. The costs incurred from this treatment are recoverable in a wrongful death lawsuit.
- Funeral Expenses - Recovering the costs of a loved one's funeral in court can be tricky. The law assumes that the loved one's estate pays for these costs, so wrongful death claimants must prove that the costs came out of their pockets in order to recover these losses.
- Mental Anguish - It's easy to confuse mental anguish with expenses for psychological treatment, but there is a difference. Mental Anguish seeks to compensate victims for the pain they experience losing a loved one, which is a separate matter from any costs associated with dealing with that pain. The law recognizes that no one would willingly choose to lose a loved one, so the fact that you did is a loss that deserves compensation.
- Loss of Companionship and Society - These damages recognize that having a spouse, parent, or child has a value of its own, which can't be replaced. They compensate victims for that loss.
- Loss of Inheritance - This is a tricky type of damages. It supposes that had a loved one not met an untimely demise, then their heirs would have received a larger inheritance. Proving these damages requires claimants to prove two things. First, they must prove that the deceased loved one generated income in excess of their needs. A person living paycheck to paycheck is unlikely to leave much to their heirs. Secondly, surviving claimants must prove that it's likely that their loved one would have died before them and left an inheritance in the first place.
- Exemplary Damages - The purpose of exemplary damages is to punish wrongdoers found to have committed gross negligence. Unlike ordinary negligence, gross negligence is an action so careless that it "shocks the senses." The classic example of gross negligence is a person firing a gun into a crowd. They don't intend to kill anyone in particular, but the act is so dangerous that it's likely someone may die.
How Long Do I Have to Act on a Wrongful Death Claim?
Claimants have two years from the date of the incident to file a wrongful death lawsuit. If the claimant does not act within the two-year window, courts will no longer recognize the claim.
This raises the question, does the two-year clock begin from the date of the victim's accident, or the day they died? These dates aren't always the same. In Texas, the clock starts from the date of the victim's death (subject to some complexities we won't cover here, since they rarely apply).
The biggest exception to the two-year statute of limitations is when a child under the age of 18 possesses a claim. The clock doesn't start on their two-year window until they turn 18. However, their legal guardian can (and often should) pursue their claim much sooner, as a practical matter.
Take a hypothetical instance where a 1-year-old's mother dies in a collision with an 18-wheeler. While the child would still have a valid case 17 years later, what are the odds that all of the evidence needed to make that case will still exist? Witnesses may be impossible to locate. The physical evidence will have degraded. It's even likely that vital company documents will have been destroyed, not through a cover-up, but because many businesses don't store records for that long. Obviously, waiting for a minor child to reach adulthood before pursuing a case is possible, but likely makes winning that case much harder.
A survival claim is, for all practical purposes, a personal injury claim that survives a person's death. This type of action exists because a person's personal injury claim does not cease to exist just because the claimant dies. Instead, the claim passes to the deceased person's estate and is treated like an asset of the estate. In other words, the estate has the right to sue to resolve the personal injury claim in the same way that it has the right to sue anyone who owes money to the estate and doesn't pay.
Not every person who dies has a survival claim. In order for such a claim to exist, the deceased person must have consciously suffered before they died due to another person's carelessness. When the deceased person dies instantly, there is no survival claim.
Since this claim belongs to the deceased individual's estate, the executor of the estate is authorized to bring the claim. Any winnings are then put into the deceased person's estate to be divided among the heirs (if they died without a will) or among their devisees (if they died with a will). Like a personal injury or wrongful death claim, the claimant has two years to bring a claim.
Defense Attorneys Will Question Your Relationship with Your Deceased Loved One
If you look over the list of damages recognized by Texas courts in wrongful death cases, one thing many of the categories have in common is that they assume a close relationship between the deceased and the claimant. This leaves an opening for commercial vehicle accident defense attorneys. If they can save their client money by casting doubt on how close you were to your deceased family member, they'll do it in a heartbeat.
To take an extreme example, there are many children whose parents leave them at an early age, disappearing and not really participating in their lives. If such a child grows up and meets an untimely demise, because of someone else's carelessness, the parent, even though they abandoned their child, may still have a claim. Obviously, no juror will value that claim as highly as a parent who raised and maintained a close relationship with a child. For many trucking company defense attorneys, one of their goals is to make your relationship with your loved one appear to a jury like that of a parent who abandoned their child.
Having a stranger question the closeness of your relationship with your parents, spouse, or child is something most people won't put up with in the best of times. It's particularly difficult after the death of someone close to you.
These attacks often take several forms. For instance, if you and your loved one didn't live in the same town, it's very likely the defense attorney will try to put you through the wringer about how often you visited, spoke on the phone, or otherwise communicated. If you ever jokingly told your loved one, "I hate you," on social media, you can bet that you'll be questioned about it.
In our firm's three decades of helping wrongful death claimants, we've found there's nothing that makes this part of the case any easier. We can explain that the defense attorney is just doing their job, but that doesn't make it pleasant when a stranger questions whether or not you had a close relationship with your loved one.
But there is a way to make them stop. On our side, we can anticipate this tactic and proactively marshal evidence showing the closeness of the relationship between you and your loved one and effectively undermine their argument.
Chapter 5 - Areas Unique to Truck Accident Law
There are some major differences between typical personal injury/car wreck cases and truck accident cases. In a truck accident case, there are more parties to sue, they're defended by tougher lawyers, and there is a broad spectrum of vehicles that fall into the world of commercial vehicle litigation, each with their own quirks and legal differences.
Multiple Defendants — An Oft-Overlooked Issue
There are often multiple defendants that contributed to any major truck accident. Many responsible parties are never brought to justice, because not all law firms know exactly what to look for or how to determine if a more obscure party is in fact liable. Below is a list of the “usual suspects” that we have found to be liable in many commercial vehicle accident cases.
The Truck Driver
The truck driver is the obvious defendant in most truck accident cases, as the negligent actions of the truck driver are frequently the proximate cause of the injuries to the plaintiff. Just to be clear, the overwhelming majority of truck drivers are safe and professional drivers, many of which will literally drive in excess of a million miles without causing an accident.
Additionally, most accidents that involve commercial vehicles are caused by passenger cars and therefore no reputable attorney should bring a lawsuit against the truck driver or trucking company in those situations. We in no way wish to portray good truck drivers in a negative light. However, there are many truck drivers who do cause accidents and who operate their vehicles in an unprofessional manner. These are the truck drivers that find themselves in our crosshairs. When a truck driver is negligent, they obviously should be named as a defendant in the lawsuit.
The Trucking Company
The trucking company may be vicariously liable for the actions of the truck driver, but they may also have contributed to the accident through their own negligence. Common examples of trucking company negligence that we have encountered in previous cases include: negligent hiring practices, negligent training practices, the failure to follow Department of Transportation rules regarding drug screening, etc. There are numerous ways that a trucking company can be liable, but such liability is not easy to establish for all but the most experienced of attorneys.
The Route Planning Company
Transport companies often rely on third-party companies to research and plan routes. This is especially relevant in cases where an oversized load is being transported. Numerous accidents are caused by the cargo on flatbed trailers striking an overpass or over-sized cargo hitting a car in the next lane because the route planners failed to find a suitable path where such collisions could be avoided.
The Cargo Loaders
Many accidents are caused when cargo shifts. 18-wheelers can weigh as much as 80,000 pounds, much of which is cargo. If this cargo is improperly loaded or secured, it may shift, causing the driver to lose control. Many truck drivers arrive at a loading dock and pick up a trailer that was loaded by a third party, and if an accident occurs due to improperly secured cargo, this third party may be to blame.
The City or State
In rare situations, a local governmental body or their subcontractors may be responsible for a commercial vehicle accident in that they failed to provide adequate or accurate signage to warn an 18-wheeler driver of some condition that may lead to an accident.
For example, our firm was hired in a case where a major road construction project was underway and highway traffic abruptly slowed from 70 miles per hour to a dead stop. An initial accident occurred when an 18-wheeler was unable to slow down in time and crashed into several vehicles. The construction company overseeing the project did not learn from this incident and they failed to provide signage to warn 18-wheelers (which require much greater braking distances than passenger cars) that just around the corner, traffic may be stopped. The exact same situation played out again, one month after the original accident, only this time four people lost their lives and numerous others were injured. Our firm was hired by several parties, and through the course of our investigation, it was determined that the construction company knew that such a collision was likely, yet failed to take appropriate measures.
The Distribution of Fault Between Multiple Defendants
Most courts hold that defendants can be jointly and severally liable. Imagine a scenario where five men assault an innocent person and they all beat him mercilessly. The injured man can sue all five defendants, and a jury will assign some portion of blame to each of them individually; they are all jointly liable and they are all individually liable. The same concept applies to truck accident cases involving multiple liable defendants.
When the Defendant Brings in Third Parties
The above scenario talks about how a court can handle multiple liable defendants. Ideally, the plaintiff will bring only the necessary defendants into a lawsuit. What you don’t want to happen is for the defendant to unfairly designate a third party as being a liable party. When this occurs, the defendant is trying to pass the blame onto another party who may not have done anything wrong, in order to mitigate their own liability. In other words, the defendant can bring virtually anyone else into the lawsuit as a scapegoat.
How do you avoid this? In some cases, the defendant bringing in third parties is entirely unavoidable, but in many cases, a skilled attorney can avoid this situation altogether, or defeat the designation of a third party retroactively, if the defendant has unfairly brought such a defendant into the lawsuit.
Defense Attorneys and Insurance Adjusters
We’ve mentioned briefly the role defense attorneys and insurance adjusters play in a commercial vehicle accident case, but we’ve only scratched the surface. Even in a scenario where proving the defendant's liability is incredibly straightforward, and the fact pattern is plaintiff-favorable, the plaintiffs will still face opposition from the defendants. This is due to the fact that the defendant stands to lose a substantial amount of money, so they take an incredibly aggressive approach in defending themselves.
When you are involved in a fender-bender car accident, you will more than likely deal with a reasonably friendly insurance claims adjuster who works for the other party’s insurance company to resolve the matter. When you are dealing with a commercial vehicle accident, you also deal with insurance adjusters, but you are not dealing with a 15-dollar-an-hour employee in a call center.
Rather, the insurance adjusters that administer commercial vehicle policies are highly trained professionals who have ascended to the peak of their industry. How does an insurance company determine that an adjuster is good? An adjuster’s skill set is established by their effectiveness in saving the insurance company money. This is done by denying claims or paying out pennies on the dollar. The adjusters that are entrusted with commercial vehicle policies are appointed to this position because they are incredibly aggressive and highly effective. Even when they play by the rules, they are certainly capable of harming your claim. However, they don’t always play by the rules.
For example, our firm was contacted by a widow, whose husband was killed by an 18-wheeler that veered onto the shoulder and struck him while he was changing an elderly woman’s tire. By the time the victim’s wife made it to the morgue, an adjuster for the insurance company was there to pressure her into a settlement.
What the victim’s wife didn’t know is that the insurance company had already launched a full investigation at the accident scene and realized that they may have to provide considerable compensation to the family of the deceased. As such, they decided to approach her before she had time to talk to an attorney and learn what her case was really worth.
The woman was emotionally distraught and she told the adjuster that she would sign a release, only if she could have an attorney look at the release before she signed. In an act of sheer greed, the insurance adjuster had one of the insurance company's own attorneys meet the two of them and “assess” the release document. This attorney, as an agent of the insurance company, of course, informed the woman that the document was fair and that she should sign it. She signed it, and in doing so, signed away her rights.
By the time she contacted our firm, it was too late. What she had agreed to was a structured settlement that paid a few hundred dollars per month and altogether totaled about $100,000. Given the circumstances of the case, her claim should have been worth millions.
To make sure that the insurance adjuster’s interests are aligned perfectly with their employer, most insurance companies pay their adjusters a form of commission, whereby the more money they save for the insurance company, the higher the bonus the adjuster receives. In this example case, the adjuster likely received a substantial bonus, while the victim’s widow was forced to barely scrape by after the loss of the family’s sole breadwinner.
Self-Insured Trucking Companies
Many trucking companies forgo traditional insurance coverage and will insure themselves with the company’s own assets. This creates tremendous difficulty when resolving the claim because, in spite of the unscrupulous actions of some insurance adjusters, they are at least answerable to a regulatory body.
When you are dealing with a self-insured trucking company, you are probably not dealing with a licensed insurance adjuster, rather you are dealing with an officer of the company who, as you can imagine, has no interest in handing over the company’s assets to you. To be frank, many of these self-insured trucking companies act like there are no rules in administering claims.
It cannot be stated enough just how highly skilled and aggressive the defense attorneys are who handle these cases. Another valuable point that should be made is that, in the hundreds of truck accident cases that our firm has litigated, we have only dealt with a small number of defense lawyers. That is because the lawyers that defend these cases comprise a small, tight-knit corner of the industry who do nothing but defend these commercial vehicle cases.
Virtually every lawyer on the defense bar would love to be hired by insurance companies, but such work is awarded to only the best and brightest defense lawyers. Not only are these defense attorneys incredibly aggressive and skilled with regard to defending cases, but they are also paid on an hourly rate which provides an incredible incentive for them to drag your case out as long as possible. This “riding the clock” approach is ethically dubious, but it happens all the time. Furthermore, a defense attorney may try to fight a case that they know they’ll lose anyway simply because it is in their financial interests to do so.
Not Just 18-Wheelers
The information contained in this pamphlet (and the relevant laws) are focused on 18-wheelers but applies to most other commercial vehicles as well. However, some of these vehicles have their own subtleties that should be taken into consideration.
We have represented the victims of accidents involving the following vehicles:
Dump Trucks and Cement Mixers
Dump trucks and cement mixers, much like 18-wheelers, are vehicles with substantial gross registered vehicle weights, which make them subject to the rules of the Federal Motor Carrier Safety Act (a.k.a. commercial vehicles). The unique design of these vehicles creates physical properties which are a significant consideration in the cause of, or ramifications of, accidents with them. In particular, these vehicles are distinct in that, on a shared chassis, you have both the power unit (the truck or tractor, as it’s known) and the cargo receptacle.
Additionally, the bulk of the mass of a fully-laden dump truck or cement mixer sits so high up in the chassis that the center of gravity is substantially higher than the vehicle’s roll axis (the geometric point about which the vehicle rotates or leans during a cornering maneuver), which lends itself to a high propensity to roll over due. Many accidents with these vehicles are caused by the vehicle rolling over, often onto a passenger car. Due to the propensity to roll over, the drivers of these trucks must exercise a high degree of care when maneuvering.
Whether you are talking about school buses, city buses, or charter buses, buses are large commercial vehicles that are aggressively defended the same way that 18-wheelers are. Bus accidents are unique in the sense that they can collide with passenger cars, injuring the occupants of both vehicles. In many bus accident cases where the occupants are injured or killed, a product liability claim will come to fruition. The modern passenger car almost ubiquitously features a welded-steel monocoque unibody chassis; i.e. passenger cars are effectively all one solid piece, aside from the hood, door, fenders, etc. Even the smallest modern compact car is incredibly durable relative to its own mass. On the contrary, the frames of most buses are weak relative to their mass.
Most of the mass of a bus sits low in the chassis, which consists of the ladder frame, the robust suspension components, and the drivetrain components. The passenger compartment that sits atop all this is a primitive structure. As such, when you have the mass of the bus colliding with some object (particularly a “planted” object, i.e. a sign, tree, bridge, etc.), the passenger compartment simply cannot withstand the forces involved, and the occupants of the bus are largely unprotected. Due to the bus’s mass, collisions with passenger cars can obviously result in catastrophic injury to the occupants of the passenger car. From a legal perspective, bus accidents are tricky because there are usually multiple injured parties all seeking to recover compensation from a finite insurance policy. Without adequate representation, you are not likely to get your fair share.
Construction or Work Vehicles
These can be represented as everything from a pickup truck to an electrician’s van, which are essentially passenger cars used for business purposes. While these vehicles generally only cause the same type of damage that a conventional passenger is capable of, that is not always the case.
For example, farm vehicles are often equipped with heavy-duty brush guards (which can penetrate the passenger compartment of a car) or additional fuel tanks that are likely to rupture. Often, these vehicles have thousands of pounds of additional equipment installed on them (hoists, snow plows, lift gates, etc.), yet suitable modifications to the braking system or steering system, etc. are not made, which makes the vehicle less safe. Even if these vehicles are left in their original configuration, there are still significant legal challenges akin to that in an 18-wheeler accident case. For instance, the same theories of vicarious liability (as discussed earlier) and the same issues associated with high-value insurance policies would be present, making these claims dissimilar from a conventional passenger car claim.
These vehicles are generally required to carry much more valuable insurance policies than conventional 18-wheelers, due to the fact that they often transport hazardous or explosive substances. Thus, these cases are often quite focused on the cargo itself and the supplier of the cargo more so than are conventional truck accident cases, which necessitates a modified legal strategy.
Much like tanker trucks, the cargo hauled by flatbeds is often the cause of an accident or may serve to increase the severity of the accident. Since flatbed trailers have no side walls, greater care must be exercised in securing the load, and many truck drivers do not put forth the proper due diligence to ensure that their loads are secure. Did you know that truck drivers are required by law to stop their trucks and inspect their load in intervals of less than 300 miles? Sadly, not all truck drivers follow these rules, and numerous people are killed or injured as a result of cargo-related accidents.
Any accident that involves a large vehicle, or a vehicle that is in the service of a company, will require considerably greater care in the attempt to obtain a successful resolution than would be required in a conventional passenger car accident.
Chapter 6 - Putting it All Together
Do I Need Legal Representation?
Not everyone needs legal representation in an accident with a commercial vehicle. As a general rule of thumb, if an accident results in property damage only, the laws covering that kind of case are usually pretty straightforward and will allow for a successful resolution of a property damage claim without major legal intervention. However, in the event that such an accident results in injury or death, to say that you would be at a serious disadvantage to not hire an attorney would be quite an understatement.
Unlike a property damage-only case, due to the high burden that is placed on the plaintiff in an injury case, the fact that the “proving up” of damages is such an intricate and subjective issue, and the fact that you face such rigorous opposition, an injury or fatality case truly necessitates having an aggressive team of your own.
Can’t I Figure Out the Law on My Own?
Not exactly. Some written laws, known as codified law, are accessible by anyone with a computer. However, as it relates to personal injury and wrongful death, these laws are really quite general. For instance, there is no law that says if an 18-wheeler crashes into your car, X, Y, and Z is the outcome; it doesn’t work that way. The law simply states that a plaintiff has the right to seek recovery from a defendant and that the plaintiff must satisfy several burdens. Naturally, this must be interpreted and applied to any particular event related to a personal injury or wrongful death. So even in the cases where you’re dealing with codified law, it is still highly interpretive. Additionally, you have to know what codified law to look for. The entirety of codified laws for any given state is bound to consist of millions and millions of words. It’s not like looking something up in the dictionary.
Furthermore, most of the applicable personal injury laws are not codified law. Personal injury cases are largely based off of case law, and case law is far more complex and wrought with legalese than codified law. Even the most skilled attorney may spend 100 hours or more just searching for applicable case law in a particular matter.
Moreover, it’s not as simple as knowing the law; you must know how to apply the law. Think of it like this: Coaches will have a playbook, but having a playbook is not enough to make someone a coach. Successful coaches are those who know how to utilize the playbook in the heat of competition.
Can’t I Negotiate a Claim on My Own?
Your attorneys certainly will negotiate as a part of resolving your claim. However, this is not like buying a car. You don’t win these negotiations because you are a better negotiator; you win these negotiations because you have done a more successful job of giving yourself bargaining chips to bring into the negotiation.
Pardon the over-used example, but consider the O.J. Simpson trial. There was compelling evidence that likely should have led to a criminal conviction. However, the prosecution lost the case, not because the evidence wasn’t good, but because of the way it was handled (and by whom it was handled), the jury did not find it compelling. The defendants had better bargaining chips.
Only an attorney is going to have an adequate understanding of how to get you to the point where negotiations can begin. Imagine your trial as a poker game and imagine that you have the worst hand in the deck and your opponent has the best hand in the deck. How well do you think your negotiation skills will help you win that hand? The answer is obvious: No amount of negotiation will help you win if you have the wrong cards in your hand.
In the legal world, failing to have adequate evidence and failing to know how to form compelling theories of liability is like having the worst hand in the deck. No amount of negotiations will change that.
Lawyers spend their entire careers learning the finer points of court procedure, and some lawyers never fully understand it. Neither the judge nor the opposing attorneys are going to teach you how to get evidence admitted into court, how to properly file a lawsuit, how to call witnesses, respond to discovery, etc.
A pro se litigant (a claimant representing themselves) is held to the same standards as a fully licensed attorney, meaning that you are required to abide by the rules of civil procedure and the rules of evidence. If you don’t know what the rules are for bringing a claim in a particular court, it doesn’t matter how good your claim is - you will never get a chance to have your claim fairly evaluated.
You Only Get One Shot
There are no do-overs in a personal injury or wrongful death case. Because of this, the consequences of not having legal representation, or having sub-standard legal representation, will obviously be detrimental to your case.
Having a team of experienced attorneys is the only sensible way to approach any serious commercial vehicle accident case. Every personal injury law firm likes to claim that they know how to litigate truck accident cases. Our experienced attorneys can legitimately make such claims and we invite any potential client to compare us to any other law firm they may be considering. Our track record speaks for itself.
Choosing the Right Attorney
If you are considering hiring a law firm for your truck accident case, there are several things that you should ask in order to determine if a law firm is appropriately qualified:
- How much total experience do the attorneys have practicing relevant law?
- Can they prove their track record?
- Do they handle other areas of law or just the type of law you need help with? Most people would not feel comfortable hiring a dentist to perform brain surgery. The same thing applies to attorneys. Don’t make the mistake of hiring a law firm that divides their time between divorces, traffic tickets, and truck accidents. Hire a dedicated truck accident litigation firm.
- Do they have the resources to handle a big truck accident case? Truck accident cases cost a law firm significant money to litigate. Smaller and less-successful law firms simply cannot afford to adequately represent truck accident victims, despite the fact that they may want to represent such clients.
- Have they handled a case similar to yours?
- Did they win that case?
- Do you like them? Legal cases can take a while to resolve. If you don’t get along with your attorneys, you won’t be happy with the outcome or the working relationship.
- Do they keep bankers’ hours? These cases never rest. If you can’t reach a law firm after hours, that’s not a good sign. An attorney representing you in a serious case should give you their cell phone number. Period.
- Do they impress upon you that they have the knowledge, experience, and level of aggressiveness that your case requires?
- Are they recognized by their peers in the legal community for their accomplishments, such as induction into the Multi-Million Dollar Advocates Forum or Super Lawyers?
Who you choose to represent you is important. Make sure that the firm you select has the experience necessary to provide competent representation.
How Do I Know if My Attorney Is Handling My Case Correctly?
Your commercial truck accident injury case will probably be the most important legal case in your lifetime, and as we mentioned before you only get one chance to get it right. Therefore, giving you the tools to know how to pick an attorney and understand the tools available to them to advance your case allows you to know what should be happening.
Being accountable to the client is important to us. We have an internal checklist that we follow and reference to make sure our clients can hold us accountable for the job they hired us to do. Allow us to share that list with you, to empower you to evaluate your attorney's performance:
- Attorneys must promptly return their client's phone calls and emails. We answer our general phone line twenty-four hours a day, seven days a week, and that's just for prospective clients. Once we bring on a client, they receive all of the attorneys' cell phone numbers, as well as those of the case managers. If you have a question at 10 p.m. on a Sunday evening, your attorney should be there to answer it.
- We do your initial client intake with real, live people, not questionnaires. Commercial truck accident litigation can hinge on details. Some firms mail out an initial intake questionnaire asking you to fill in all the relevant details of your crash, to help them get started on your case. Well, what if you don't understand one of the questions? It shouldn't be the client's job to pick up the phone and ask for help. That's why we gather the information we need to start on your case by having an actual conversation.
- You deserve to have a roadmap for how your case will be litigated, and our attorneys explain that roadmap to each and every client.
- Arranging and monitoring the medical care you need to recover from your injury is always a top priority. Our firm works with a network of medical providers who provide the treatment you need at no upfront cost. Arranging timely care not only allows you to recover but is also a crucial part of developing your case.
- Our attorneys call clients to discuss the milestones in their case. It's your case, so when something happens, obviously you should know about it.
- This may sound obvious, but things should happen in your case. You should notice your attorney gathering evidence, filing suit, taking depositions, preparing you for mediation, passing along any settlement offers, and preparing you for trial. When the case isn't moving, we make sure that clients know why there's a hold-up. If nothing happens, that's a worrying sign and one you should watch out for.
- Our attorneys only settle a case when the client believes that it's the right time to do so. If you don't think the offer on the table is a good one, you have the right to reject it, because it's your case. If your attorney can't clearly state why an offer is fair, and the best one you're likely to receive, in a way that convinces you, then they're not doing their job correctly.
This checklist isn't just about providing superior service to our clients. Rather, it denotes what we believe attorneys owe to those who trust them with something as important as a truck accident case.
Chapter 7 - Frequently Asked Questions
What Is My Commercial Vehicle Personal Injury/Wrongful Death Lawsuit Worth?
This is the question clients ask most frequently. First, let's dispel a myth that the news likes to repeat. The value of a case does not hinge on pain and suffering damages, which is the opposite of what most people believe. Think about it for a moment, while pain and suffering are very real, there is no accurate way to price it. While most people agree that the person responsible for your injuries or the loss of a loved one should pay for what they did, and they may even agree that they should pay "a lot of money," there's no consistent way to define what that means. In some economically depressed areas, "a lot of money" could mean $100,000. In more affluent areas it may be closer to $1,000,000. Trying to value a case on something so subjective is rarely a successful strategy.
Instead, your case's value usually comes down to things that are easy to price, medical bills and the financial burden the accident has placed on you. Medical bills are easy to put a price on because the medical providers do it for you. While not as clear-cut, it's also easy to put a figure on what you earned before your injury and what you expect to bring in afterward.
While the damages vary in every case, if you want to make your own back-of-the-envelope calculation for how much your case is worth, add together the total medical costs, lost earnings, and then tack on a smaller fraction of that amount for pain and suffering. That will give you a rough idea what your case should be worth, assuming the other party is 100% at fault for your losses.
With a wrongful death claim, however, a good way to approximate the value of your case is to account for any financial losses you’ve incurred when your loved one passed away, and then add approximately $1 million dollars to that to get an idea of how a jury will value the mental anguish of a typical set of claimants consisting of a spouse and minor children.
Please note, we generally consider catastrophic injury cases and wrongful death cases as having multi-million dollar potential. That said, some venues will have a jury pool that is likely to award far more, and other venues have a jury pool that will award far less. As such, consider this info only as a general guide and understand that your unique case could be worth far more or far less based on a variety of factors.
How Much Does it Cost to Hire an Attorney?
Grossman Law Offices does not charge any money upfront. Instead, the firm works on what is known as a contingency fee basis. This means that our clients only pay us in the event we win their case. If we prevail on our client's behalf, then the firm keeps one-third of the settlement as payment. In the event that we have to file suit in the case, the firm keeps 40% of the winnings.
The firm not only litigates the case without any upfront money, but we also pay any of the court fees, investigation costs, and expert's fees with the expectation that those costs will be reimbursed out of the case winnings only if we win. If we don't win the case, then the firm covers all of these costs. This fee structure allows us to act as partners in your case. Our success and yours are linked.
How Long Does it Take to Litigate a Commercial Truck Accident Case?
Typically, a commercial truck accident case in Texas takes between 1 and 2 years to resolve. But every case is different. For this reason, there are some instances where the case may wrap up more quickly, while there are others that will cause the case to run longer than normal.
Cases involving brain injuries provide a good example of a case that can take a while to resolve. For starters, it generally takes months for the full extent of a brain injury to become apparent. This slows down a case, because part of filing a lawsuit or submitting a demand to a trucking company, for compensation, is providing the court or insurance company with an amount that compensates the victim for their losses. If no one can accurately gauge the medical expenses or long-term financial impact on the victim, it's impossible to provide this number.
Should I Hire an Attorney While Going Through the Insurance Claims Process?
Some people try to give a trucking company and their insurance carrier a chance to do the right thing before hiring a lawyer. They think, "I"ll just file an insurance claim and see what happens. If they make a lowball offer, then I'll hire a lawyer."
Let's dissect that a bit. How would you feel if you hired a lawyer and your lawyer gave the trucking company lawyer access to your case file? You'd probably be pretty upset. Now you know why the insurance claims process was invented. While ostensibly a low-risk way for an insurance adjuster to evaluate your claim and maybe resolve it quickly and easily, the reality is that it's a tool to help the defendants, not you. In order to have them evaluate your claim, you will have to give them far more information and details than we would ever be comfortable with. Your best bet is to avoid any communications with an insurance adjuster, just the same way that you'd avoid talking to the trucking company lawyer. It's important to remember that the insurance claims process is not something that the law mandates. Rather, it's a way for insurance companies to try to keep the matter out of court. "Just give us a chance to evaluate and make you an offer," they say. But since it's not a part of the legal process, there are fewer legal protections for victims. Insurance adjusters are regulated and aren't allowed to commit outright fraud, but the claims system is rigged in their favor. At its most benign, the claims process allows insurance companies a free look at your case as they entice you to hand them info they would normally have to get through your lawyer. Don't fall for it.
How Do I Hire a Commercial Vehicle Accident Attorney?
Every attorney is different, but after an initial consultation, an attorney will have you sign a contract. The way this works at Grossman Law Offices is that we have a simple one-page agreement, which spells out our fees and also says that you're free to fire us, if you don't like the way things are going.
Many attorneys have contracts that run for several pages, but we can't for the life of us think what more the contract must say.
Where Does Grossman Law Offices Operate?
Our principal office is located in Dallas, TX. However, Grossman Law Offices litigates commercial truck accident cases throughout Texas and around the United States. Our attorneys are licensed in multiple states and are admitted to the federal bar, as well.