Let's say you've been in a crash or perhaps someone close to you has been injured in one. Now do a little research as though you need an attorney. By the way does anyone know any good lawyer? What you'll find is that a number of firms and practicing attorneys include in their advertisement a portion dedicated to Early Response; if not predominantly then at least a minimum. Much is made of the importance of hiring a firm specializing in early response.
A recurrent theme in many ads you may encounter is:
"Many trucking companies and insurance companies send out early response groups to the scene of a crash on the very day it occurs in order to collect evidence which may be used against the injured party at a later date!"
This statement, as I said can be found verbatim in many ads, basically expounding on the advantage the insurance companies and Big Rig companies have over you, the plaintiff. Simply put, in order to protect yourself you must act as they do and involve an attorney as quickly as is possible. Another repeated theme throughout the ads is that in order to maximize your due compensation you must hire an experienced truck crash attorney because truck crashes are not your typical passenger car crash.
Many law firms are now moving toward the practice of hiring consulting firms to provide early response services to truck crashes. Concern for data and evidence that may be lost is the driving force behind this growing philosophy, designed to level the playing field with the Big Rig and Insurance companies.
The question is: What all the fuss is about and how much value does it add to the outcome of the litigation? Well, it's all in the preservation! More importantly who preserves and what is preserved. There can be a great deal of helpful information gleaned from a properly documented and preserved accident scene. But knowing exactly what and how to preserve or photograph, video, measure or otherwise document should not be left to investigators inexperienced in the unique environment that is a truck crash. What you will end up with is likely good to have; plenty of poignant photographs, some eye witness statements and even a well-documented accident scene. Perhaps the good work of the local or state police is competent and meticulous enough for you to rely on though more often than not these agencies are overburdened at a crash scene.
The fact is that many truck crash cases reach litigation months or years after the accident. To their chagrin, attorneys find that critical information is missing, lost or destroyed. From the expert's point of view this is extremely important as our opinions and work product are now being subjected to the rigors of Daubert. A Daubert challenge, inevitability is a trial or hearing, pointed directly at the expert; the methodology employed, the qualifications and the reliability of the work product. Let's call it the Federal standard by which the judicial system determines the worthiness of the experts work product for use in the particular trial. Though Daubert is only a Federal issue, States have their own standards to ensure the validity of an expert conclusion. Opponents will use these tools in an effort to exclude an expert or a vital piece of evidence from the case.
I have had the occasional wish that I had been at the scene of a crash to preserve evidence that I know had to exist, that months later is no longer available. What's worse is, whenever evidence is fortuitously provided by the opposition is the only basis for my professional opinion. The lost proof for my developing opinion is instead turned into a real concern for a net opinion ruling, or the Daubert challenge. For this reason experts must conduct themselves and their investigations with a careful consideration of the methods of collection, testing, documentation and preservation of evidence. This is no longer true only for just the value of the evidence but to ensure the evidence and your expert survives validity challenges by the opponent.
There is much thought and preparation that goes into planning and performing inspections of truck crash sites. The expert must plan to document such things as traffic controls, skid marks, road scars, vehicle damage and position, debris patterns, paint transfer etc. Vehicle cab content can be the evidence the trial turns on. The expert will know what should be in the cab, such as the legally required documents versus those that should not, distractions or prohibited drinks or enhancers. It is especially crucial, given the immediacy of the situation that the expert be able to react quickly to save the ephemeral artifacts of the crash. It is not enough that he show up with camera in hand, he must be fully prepared with all necessary tools and equipment to accomplish a thorough inspection. A planned approach to a crash site inspection may turn the tide in litigation though the best laid plans may still require the expert think on his feet, because of the individual dynamics of an accident scene.
Two examples come to mind that demonstrate the importance of early response: The first concerned a 6 year old matter and the other a black box. In the first matter the attorney had the wisdom to recruit an expert outfit to inspect the vehicle immediately after it was released by the impounding agency. Later, the photographs of certain components which were undamaged, taken during the earlier inspection were essential in refuting the liability theories developed by the experts based on newer photographs taken during subsequent inspections. The newer photographs showed damage where previously there was none. Consider what might have been if the earlier photos had not been available.
In the case of the black box, the data from an event data recorder was not preserved. The event data recorder in this matter was not the usual vehicle ECM but the Air Bag controller which saves accident data as well. For obvious reasons the data that the ECM would have provided if properly preserved could have been extremely helpful in developing theories based on factual information such as speed, braking and deceleration, control, time and distance. In my opinion, even if such theories could be advanced using other methods, more factual support for an opinion is better, especially in light of the new standard imposed by Daubert. The importance of quick response to an accident scene before critical evidence disappears cannot be over emphasized, however quick response must include preparation and preparation must include Daubert and the many State derivatives.
Data recovery is not as simple as it sounds: Plug in your computer cable, press a button and watch the sand dial spin! Many things can complicate the extraction or ruin the data completely. When planning a vehicle inspection always use a competent expert whenever data extraction is anticipated. Just as important as competency are the tools necessary, which often go beyond the laptop and extraction software. Things such as battery power or damaged vehicle harnesses can put a quick halt to your extraction plans. The expert consultant should always inspect the electrical aspects of the truck and computer; checking harnesses, connectors, battery power and all physical damage to assess the potential for success in data extraction. Remember this truck was in a crash and improper handling of the extraction could render useless what otherwise may have been very helpful information.
Many times the best way to accomplish data extraction requires that the electronic data recorder, EDR, is physically removed and the extraction performed on a bench. The expert must be fully capable in that case to either extract the data or remove and secure the EDR with a proper chain of custody for download. It is important to know that even if the truck is still operable, it should not be run or driven due to the potential to alter the existing data. For this reason, experienced experts resist the urge to move the accident vehicle from poor inspection conditions by driving or starting the engine, until the extraction of the EDR information is complete. Otherwise the accident truck should only be moved via tow truck, heavy forklift or tug.
The process of investigating an accident scene shortly after the crash provides opportunities that may not be available later, especially years later. The expert must be thorough, taking the time to document items lying around in the cab that represent potential distractions: radios, ipods, cell phones or prohibited materials like drugs and alcohol.
The truck needs to be preserved as much as any other piece of evidence and the quality of the preservation is highly dependent on the wrecking company with widely varying results. Often the truck is simply parked away from the normal goings on of the wrecking yard, assumed to be protected. In that event and in conjunction with the accumulation of time, so much otherwise valuable information can be compromised by the elements or tampering, intended or not.
For truck crashes in which reconstruction appears necessary at the most early stages of litigation your accident reconstruction expert will appreciate careful mapping and measuring of the scene. Complete photographic documentation from all directions is essential including physical evidence at the scene such as skid marks, road scraping and impact gouges, paint transfer and debris. Ensure that all traffic control devices, fences, obstructions to line of site, trees, buildings etc. are noted.
Be especially cognizant to document temporary traffic controls that a driver is subject to obey, such as work zone or work areas that may likely no longer be there only a short while later. These temporary traffic control signs or devices usually direct to the contrary the motorist's action to an existing permanent sign or device.
Another area where early inspection may prevent the loss of valuable data is vehicle lighting systems. These systems should be inspected carefully for operation. In some cases it may be required to determine whether lights were energized at the moment of impact. This evidence can be very delicate and susceptible to exposure to the elements. Exercise care when examining or extracting this evidence for preservation, so as not to damage or lose the evidence. Examination under a microscope is necessary in order to reveal the characteristics of the failure and determine cause. Bulb technology has changed with the advent of halogen HED and LED lighting systems. Bulbs should be examined for evidence of breakage, filament damage, burn out, or a black greyish cloud inside the bulb. If necessary, bulbs should be preserved separately from the vehicle, especially if it is to be stored in less than perfect conditions.
Early response to an accident does not only involve the accident scene immediately after the crash. It is more likely that attorney involvement will come days after the accident rather than on the very day. It is not unusual to be retained months after an accident, so being retained in a truck crash matter days after is still a stroke of luck. There are so many more pressing details to be concerned with; hiring the right expert at this early stage of the game can be crucial to the outcome. We talked about the fact that big rig crashes are a different beast. There is much more involved in big rig crash litigation largely because of the greater degree of scrutiny and regulation at every level directed at the trucking industry: federal, state, county, township etc.
Most of us turn to the federal statutes of USC Title 49 Transportations where the Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA) and National Transportation Safety Board (NTSB) provide extensive regulation over the trucking industry. The states in many cases adopt by reference some or all of the CFRs relative to trucking; the rules of the road, inspection and maintenance, driver fitness, hours of operation and more. However, one must always look to the state and local regulations because you will find that they do at times differ. When they differ the more stringent rules apply as long as they do not contradict the federal laws.
Other regulatory and standards organizations include the Occupational Safety and Health Administration (OSHA), the National Safety Council (NSC), American National Standards Institute (ANSI) and many others; altogether they form a vast framework of regulations and standards that govern the trucking industry. These regulations and standards are the two sided sword for the expert; helpful but which represents concerns for the plaintiff and defendant alike. The expert you engage must know this and provide guidance as the matter progresses.
Early inclusion of a trucking expert possessing a thorough understanding of the relevant regulations and standards is beneficial in assisting you, the attorney with preservation of records. The records a plaintiff should seek in many truck crash scenarios due to the potential value are under the control of the trucking outfit. By Federal law and therefore also incorporated into many state regulations are requirements to retain many of these potentially vital records for only six months and often for a lesser period. It is crucial that you move to preserve these records as quickly as possible and helpful that your expert consultant can assist in getting you started immediately.
The expert's knowledge of what would be best to preserve based on the specific facts of the accident will be helpful in constructing a preservation notice that is comprehensive; yet not so much so that it is grounds for objection by the defense. Without this notice being timely, it is very easy for trucking companies to eliminate evidence. When initiated early in a case the preservation notice will ensure that the most pertinent information is available. Once you have established what to preserve you can later choose exactly what to include in your discovery demand. Always consult with your expert for advice during your discovery demand process as well.
Most everyone nowadays, both attorney and expert alike know to notify the trucking company to preserve the post-accident condition of the tractor-trailer. Only a knowledgeable consultant still engaged in the industry will be aware of new technology such as video event recorders, and know to have them included in a preservation notice.
So much is usually at stake in a big rig crash. The damages are more severe, the injuries more extensive. Truck crash investigation and litigation is so much more complex thanks to a vast regulatory system, many standards organizations and ever changing technology. We cannot forget that potential compensation awards can be quite large compared to other motor vehicle accidents. Using an expert with the right skills, knowledge and experience to know where to look to uncover the truly important and telling facts of a case is vital. Working at a crash scene with a specialist expert that can provide all the above and who understands the unique environment that is a truck crash (the laws, standards, and evidence collection and preservation techniques) will be an invaluable resource. When the expert can deliver all the above while preserving the evidentiary validity of what might prove to be the evidence the case turns on: priceless.
An early response specialist can be the expert that truly makes a difference in the case and very likely help you to preserve its outcome.
Robert Crandall is an Automotive, Commercial, and Heavy Vehicle specialist wit over 35 years of industry experience. Mr. Crandall's background includes the Operation of a Large Municipal Fleet of 6,500 vehicles and 70 locations. He has experience in fleet maintenance operations, governmental procurement, specification development, R&D, failure analysis, and an extensive background in technical training.
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