How to Investigate a Truck Accident Case – The Definitive Guide
It’s common to think of truck accidents in simplistic terms: truck A runs a stop sign and crashes into car B. However deceptively simplistic such a scenario may be, the resulting accident litigation that is likely to occur will be quite technical in nature and will require a considerable amount of evidence in order for the injured party to win their case. In anticipation of the trucking company putting up a fight (they always do) any lawyer worth his salt will begin a truck accident case with an exhaustive investigation that goes above and beyond the (usually) basic investigation that the police conduct immediately after the accident.
In this article, Texas truck accident attorney Michael Grossman explains how to investigate a truck accident the right way, and he discusses the evidence that smart lawyers look for while investigating. After all, gathering and preserving evidence is the purpose of an investigation.
Questions Answered on This Page:
- Why is evidence important in a truck accident case?
- What kinds of evidence do I need to win a truck accident case?
- How does investigation in a truck accident case work?
Why do you need a lawyer to investigate anyway? Don’t the police handle that?
The reason lawyers fret so much over gathering truck accident evidence is twofold: defendants in truck accident cases have the resources to litigate their cases until the end of time, and juries are more skeptical of the claims an injured person makes than ever before in the history of our country. Thus, you must leave no stone unturned if you intend to find the evidence necessary to hold a negligent trucking company accountable for your injuries in a court of law.
In the modern era of personal injury law, plaintiff’s face considerable challenges in holding a defendant liable. Regardless if the defendant’s negligence appears to be obvious, it is now necessary to not only show a jury “how” an accident happened, but “why” an accident happened. An in-depth truck accident investigation is necessary to learn about the trucking company’s safety policies (or lack thereof), training procedures, etc., in addition to learning as much as you can about the accident scene itself.
If it was ever true that you can win a truck accident case simply by showing that the truck driver made a momentary error or committed some obvious infraction, that is no longer the case. Now more than ever a plaintiff must not rely on any single piece of evidence and hope to win their case. As such, the only appropriate response following a serious truck accident is to have an attorney act on your behalf to find any and all evidence that shows not only what happened in the moments leading up to your accident but the moments throughout the driver and employer’s recent history. To put another way, it is not enough to show that a truck driver made a mistake, but you must reveal a culture of negligent behavior within the trucking company.
As such, if you have been injured in a truck accident, gathering and preserving evidence is the most important aspect of your case. And the window to do so is short. Some people correctly believe that they have two years to file a personal injury suit, which is the term for the Texas statute of limitations before you claim is barred. However, waiting even one month to have an attorney start on your case can hurt your claim because of the potential lack of good evidence that will be required to prove your claim. Waiting could imperil your case simply due to a lack of evidence that could have been easily available if your case had begun earlier.
Many Wrong Ways to Investigate
While many law firms do not recognize the importance of quickly gathering and preserving the evidence required to prove your truck accident case, we do understand. We don’t waste any time getting to work gathering evidence while it is still fresh. Some attorneys may not even do a complete investigation at all. They will simply wait for a police report and base their case from this interpretation of the evidence, rather than completing a full truck accident investigation and evaluating the evidence on their own.Police Reports: Myths vs. Facts For some reason, people believe that the findings in a police report determine who wins or loses a legal case, but that's not at all true...Read More >
Many attorneys and the general public both inaccurately believe that all they need on their side to win a truck accident case is a police report in their favor. This is patently wrong in that these reports are usually staggeringly incomplete.
Let’s consider the purpose of the police report. First, the police report is not designed for the purpose of establishing liability in civil court. Its primary function is for record keeping and statistical analysis. (i.e., it is an internal document created by and for purposes of the police department). Simply put, don’t wait for the police accident report. They were never intended to be documents that were relied upon in court and they can be considerably lacking in merit compared to other forms of evidence.
Why then are police reports used so often in relation to accident cases? The answer is that in most minor accidents there is not enough money in controversy to justify a third party investigation. Most of the parties involved in such accidents are perfectly content to agree to use the police report as if it were the gospel truth even though it is only partially suitable as a means of determining fault.
Think of it like this: a homicide detective would much rather build his case on eye witness testimony or surveillance footage, but sometimes this type of evidence is not available. In the absence of good evidence, he may still press charges against someone based on circumstantial evidence. A police report is analogous to the latter type of evidence. It is a piece of evidence that may be used but it is certainly not the silver bullet that most people think it is, and you’re really harming your case by relying on it as anything more than a “jumping off point.”
What specifically is lacking in the police report?
Testimony provided by an expert witness, which is lacking from the report, is often admissible in court. For example, in a case where the plaintiff is claiming that an engineering or design defect of a product caused their injuries, an engineering professor may be designated as an expert where they will provide a report that clarifies the technical elements of a plaintiff’s claim so that a jury can comprehend and weigh them. In other words, when there is a complex matter that must be explained to a jury the opinion of a lay person is meaningless and the opinion of a qualified expert is quite compelling.
The problem with police reports is that not all police officers are qualified to make a proper analysis of a scene. As a consequence, the police report is not beyond reproach. It is a document that may be inherently flawed and subject to scrutiny. Imagine that your only evidence is the police report which shows the 18-wheeler driver to be at fault for your accident. Then imagine that during cross examination the defense lawyer is able to trip up the police officer and cast doubt on his findings. As you can imagine, the police report’s findings suddenly lack merit.
Next, you have the issues of admissibility of a police report.
The attorneys who represent the trucking company will often argue to have the police report disallowed from being heard by a jury on the grounds that the officer who created the report was not qualified. The opinions contained in a police report are not seen as facts, rather, they are viewed as opinion made by an alleged expert. If the police officer is expected to testify he will have to relate to the jury why the opinions were made and will have to make an articulate justification for his reasoning. However, the opposing counsel can produce an expert in the field to counter his statements.
It will be up to the jury to weigh the evidence of expert testimony against that of the non-expert and make a decision as to who is more credible. The jury will probably find that an expert who holds a degree and has years of experience will be quite credible. When you select an expert witness to provide testimony in relation to medical procedures or life care planning, etc. you as the plaintiff will have an astonishingly strong claim.
However, you do not get to choose the police officer who investigated the accident scene and drafted the police report. Notwithstanding the reasons mentioned above, the police report should not be relied upon as the crux of your evidentiary strategy. What if the police officer himself lacks credibility, training, or experience, and you have no way of knowing this? The police report won’t speak to his lack of years or training on the job, but merely keeps a record. At best, the police report should be thought of as a helpful guide that may end up being entirely accurate but is often little more than an official best guess. Many times, the police report is incomplete or just plain wrong. Your case is important to us, and you deserve to have attorneys that will follow up on your claim fully and completely. An attorney that will simply rely solely on the police reports is doing a disservice to you and to your case.
Investigating the Accident Scene
Rest assured that the trucking company’s attorneys will be at the site as soon as possible to talk to witnesses, to collect evidence and to help the driver get his story straight. The investigation will be one-sided in their favor. The worst thing you can do is allow them to take the advantage, and you not have your interests represented at the scene of the accident as soon as possible.
In rare instances, we are hired immediately following the accident and we can go out to the location and conduct an analysis of the scene. However, in most truck accident cases the injuries are so severe or the accident results in death that the grieving family members will wait for some period of time before they hire us. To be clear, delaying the start of your case is always ill advised, and the sooner you hire an attorney the better. That being said, we understand that it is not always realistic to expect that the first thing on an injured person or grieving family’s mind is hiring an attorney. So in most cases, the first order of business is damage control whereby we are already at a disadvantage due to the client waiting, and we must move as quickly as possible to alleviate the delay in time.
Preserving evidence begins with sending a spoliation letter to the involved parties. A spoliation letter is a document drafted by our attorneys that puts all parties on notice that there is a pending lawsuit and that all evidence relating to that lawsuit should not be destroyed, altered, concealed or otherwise tampered with in any way without first getting approval from the claimant’s attorney. The letter is enforced by law and any trucking company that violates the conditions could be subject to severe penalties from the court. Failing to sending a spoliation letter is tantamount to inviting the defendants to tamper with the evidence. Not all trucking companies are corrupt but there are 360,000 of them in America, and we have found that the same trucking companies that are causing fatal accidents are the same ones that refrain from following the rules. Thus, evidence tampering is a very legitimate possibility.
Once all parties have been put on notice, a vehicular accident reconstruction can begin. The evidence can be gathered and collated. All of which is based on the individual needs of your case. We may take witness statements of those who have personal knowledge of the accident. A vehicular expert may be sent to the site to measure skid marks of the accident scene. They may also perform inspections on your car and on the 18-wheeler that caused the accident.
Witness statements are extremely valuable in reconstructing the events of an accident. It is important to gather as much initial information as possible in order to not miss any person who could turn out to be a very valuable eye witness. Others may have missed critical evidence by not collecting a full list of who was at the scene at the time. These crucial statements should be taken separately in order to prevent cross contamination of statements. And when witnesses are interviewed it should be done so with the mindset that this person may be called to testify under oath. Once their information is gathered, each witness statement should be cross checked against the physical evidence to ensure that it is reliable.
During the reconstruction of the accident, much of the physical evidence will be reviewed and analyzed. Depending on the actual location, the grade of the street will be checked and the surface road will be checked for oils and other substances that may have affected the collision. If there are skid marks, they will be measured for distance, angle, and substance to confirm which vehicle they came from. This will be used to determine if either of the vehicles braked at all and their speeds of motion when they applied the brakes. The brakes, brake fluid levels, and the brake pads will also be researched all to create a big picture of what happened at the time of the accident. Depending on these issues in the case, gathering this evidence can help the jury assign where the fault may lie.
As you can see, an actual vehicular reconstruction will contain a massive amount of witness statements and physical evidence that would not be contained in a police report. For example, we had a case where a plaintiff was driving along a highway and failed to yield the right of way to a merging truck driver. The plaintiff, of course, was contributorily negligent by failing to yield right of way to truck driver. However, the truck driver did not make any reasonable attempt to avoid the accident, resulting in a horrible collision. Even though the plaintiff was negligent, this does not give the truck driver free reign to mow down the driver; which is what the truck driver did in this case. This information was not made available to the police and had no mention of it in the police report. It was only later through accident reconstruction that the true facts of the incident were revealed.How the trucking industry stacks the deck in their favor Read More >
Electronic and Digital Evidence Preservation
Gathering and preserving electronic evidence is a relatively new strategy in litigating commercial trucking cases, so it is also important to have attorneys working for you that are up to date on this evolving field. We understand that the Electronic Control Module (ECM) in a tractor-trailer tracks all of the vehicle information regarding the performance of the engine. Recorded ECM data may include the engine RPMs, the vehicle speed, and if the brakes were applied in a sudden stop. The data should also be reviewed by someone with expert knowledge of ECM data. We have experts with the knowledge and experience to do just that, and it’s imperative that such information be gathered. This information is only available when the plaintiff’s attorney acquires a subpoena and compels the defendant to provide the data.
Global Positioning Systems (GPS), such as Peoplenet, track all of the vehicles movements. GPS data can also be important in cross checking what the driver is writing into his log. The data could show that not only was the driver negligent but that he has been lying about his driving habits, how he maintained his truck, and other important details prior to the accident. Qualcomm is an in-cab messaging system used by many trucking companies that automatically save information about the performance of the truck and the routes that the vehicle has traveled. Qualcomm stores the information it records for about 3 months. ECM and GPS, and Qualcomm produce electronic data that can easily be wiped, erased, or damaged but are important in revealing unknown factors that could have contributed to the cause of the accident and we make every effort to preserve them for you.
These data systems that record and store travel information can be important in showing driver credibility and other extenuating circumstantial evidence. In one case we handled, there was a truck driver who claimed he had logged the standard number of hours for driving and his driver’s log appeared to support his claim. The data from his GPS was subpoenaed, and it was found that he had forged the information in his physical log books. The data showed that he had been driving for twenty hours prior to the accident. The data proved that he was not being credible and that he would have been fatigued while driving which contributed to the accident. If one had only looked at the log books and not checked his GPS, his story would have appeared credible.
Driver Records as Evidence
The truck driver’s qualification file will need to be reviewed. The qualification file is a collection of documents that contains items such as the driver’s application for employment, driving record, medical history, test results for physicals, and medical examinations. It is essentially a file that shows the particular driver is qualified to drive a commercial truck. It should also contain an employment history and driving record from the state.
Additionally, a criminal background check should be done by pulling records from the state. The Department of Transportation maintains the Safety and Fitness Electronic Records System (SAFER). This government website provides safety data and reporting for the public on commercial trucking companies. SAFER includes crash information, safety ratings, company identity information, size of the company, and their safety record. This may seem incredibly explanatory, but we have even had cases where a driver was not even licensed–not even holding a regular driver’s license.
Other Driver Information
Other information needed from the driver would be driving logs and history, fuel receipts, bills of lading, information from weighing stations, cell phone GPS data and possible criminal charges that resulted from the accident. These can be checked against each other, as well as ECM and GPS, to gather a picture of the driver’s habits and methods and to verify or possibly impeach any contradictory statements he may give later. All of these records can be used to make fact determinations depending on the particular circumstances of the case and the particular issues being litigated.
Obtaining driver’s license information from both parties may also be retrieved from the Department of Motor Vehicles, and on that same note, background checks should be done. This information, along with witness statements and accident reconstruction will be combined to create a profile of the parties involved in the accident and to create a model reconstruction of the events of the accident. These models, along with photographs, documentary evidence, and animatics can then be used as part of the expert’s testimony and presentation to the jury so they may have a complete understanding of how all of the events of a particular case unfolded.
Evidence from the employer will also need to be taken. Employee handbooks and training manuals could reveal various details: if the driver was trained adequately, what employer remedial measures exist, drug/alcohol tests, intoxication screens, terminations or reprimands, as they are all valuable to determine if the employer had a dangerous employee and knew about it prior to the accident. Or whether the employee had been involved with prior accidents and the employer was aware of the danger and still continued to keep him on as a truck driver.
Also subject to discovery would be in-house investigation letters that would show if the employer himself conducted any previous inquiries into the driver or equipment that may not have been released to the public. Additionally, it is the current employer’s responsibility to obtain information from previous employers of the driver to know if he had any history of negligence prior to his current employment. The service records regarding whether the truck had been adequately maintained and any repairs that may have been done on the vehicle. The same can be said of previous employer disclosures, if they had made admissions that would be contrary to their defense. Interviewing the employer and getting statements from fellow employees could also reveal important information about the habits and conduct of the driver.
Read these other articles related to investigating truck accident cases:
- How 18-wheeler black box data works
- What is spoliation of evidence, and how does it work?
- How police reports factor into a truck accident case
- How eyewitness testimony can impact a truck accident case
- How criminal prosecution works in truck accident cases
- How cell phone data impacts truck accident cases
- Drug tests for truck drivers
- Why we look at a driver’s medical history
- Evidence that can be found in a truck driver’s annual medical evaluation
- Maintenance and repair reports on commercial vehicles
The Importance of Evidence and Investigation in Your Truck Accident Case
It is imperative to start the discovery process as soon as possible. Information, evidence, and data can be lost within a matter of a few months and the commercial trucking defense attorneys will not waste time gathering as much evidence as possible to help their case and hinder yours.
Attorney Michael Grossman has spent the last 25 years representing those who have sustained serious injuries as well as clients who have lost loved ones in 18-wheeler accidents. If you need the help of an experienced truck accident law firm, call (855) 326-0000 for a free consultation.