By Dennis
McGee and Joel Beal
As
an observer of the safety roundtable hosted by Dennis McGee and Associates, I get to see new
ideas to protect our industry. The following article was distributed to
our group, and contains valuable information. It's a matter of when - not
if - you must defend yourself.
Our
clients have a great deal of information available from their onboard computers
and transportation management software. However, you will find yourself
in situations where you simply need more information. If you've been in
court or given a deposition - you know it's an ugly, protracted battle. I
encourage you to read and think about these ideas. - JB
Battlefield
Blunders As Decisive As Brilliant Tactics: New Ideas to Defend the Trucker
Battlefield
blunders can be as decisive as brilliant tactics. The battlefields of history
are littered with losers who failed to recognize and develop new
strategies.
Burnside
at Fredericksburg: The Battle of Fredericksburg was a humiliating meat-grinder
of a defeat for the Union Army, and the fault lies squarely with General
Ambrose Burnside. The man would be forgotten today but for the fact that
he lent his name to excessive cheek hair.
Custer
at the Little Bighorn: Why Custer thought he could go
hey-diddle-diddle-right-up-the-middle into a swarm of angry Indians remains a
mystery. The Plains Indians were among the finest
cavalrymen ever. When the repeating rifle came into their
hands, they weaponized a Spanish import: the horse.
I consider
every case as a potential battle, or least a skirmish, that must be carefully
executed. We cannot follow the fate of the unprepared or misinformed in
defending our client, particularly trucking clients.
We
must not be like the ego-centric Custer and wallow in the war stories of past
glory, while ignoring new means and methods of defending against actions.
We must constantly look for new methods of proof.
We
must continuously consider and develop new means of persuasion. I would welcome
your unique ideas on how to better represent the trucking industry.
The
following is a brief overview of some of the tactics that have been
successfully employed.
1.
Video Cameras
Upon
arrival at the accident scene, immediately check for video cameras-public or
private.
Sure,
it's a long shot that any are present or even longer that the accident was
caught on film, but you must act immediately to have any chance of preserving
any possible capturing of the accident on video. Even a snippet of
information can corroborate speeds.
Recently,
I told a client that I had wished we had obtained the surveillance information
immediately following the accident. He was somewhat perturbed for making this
suggestion. I was not implying that he or his scene investigator had done
anything wrong, but I knew this area and I knew that there were cameras all
around the truck stop. Had we received this information sooner, we may have
learned that the plaintiff had been driving at a high speed and could have
avoided our driver who was making a left turn from the truck stop.
Video
cameras can be both public and private. From municipal intersection cams to
business security cameras, the myriad of possibilities constantly increases.
Although it is rare that municipal or cameras on the highway preserve the
information, a security camera outside a business captured the
landing of the airliner on the Hudson River. My investigation of this
particular area revealed that there was convenience store
surveillance camera that would have captured the vantage point of
the plaintiff. There was also a surveillance camera at a fast food
restaurant that was directly pointing at where our driver would have been
pulling out.
If
you want this stuff, you need to get our there quickly and preserve it.
Rarely does the private company keep this data more than a few days. Wouldn't
it be great to have unbiased documentation of your driver's version in an
intersection accident.
Lucky?
Luck is the by-product of anticipation and preparation.
2.
Early Surveillance
If
you do traditional surveillance, do it early, immediately after the accident.
Frequently this is far more productive than later when claimants are warned by
an attorney or guarded for the sake of litigation.
3.
Cheap Surveillance: Social Media
Social
media is everywhere. Younger generations live there, but even the
older generations engage it regularly. People constantly post their activities
and photos. Those who do so before or after they assert a claim against our
companies are handing us a gift.
A
few years ago, I was defending an alleged closed-head brain injury claim. The
plaintiff stated there were numerous activities, she was unable to do,
including being in crowds. Oddly, she posted on Facebook, movie scenes in which
she played an extra.
We
cannot waste this resource of cheap surveillance. Act fast because
personal injury lawyers know we are asking for this information now. Facebook
has limited the access to this information, but good discovery questions can
ensure this information is made available to you.
Check
available public sources immediately upon the accident, before it can be taken
down. All to often, by the time a lawsuit is filed, the information has been
privatized or deleted. When your hire an attorney to oversee the investigation
of an accident, you should also have him check public access to social media.
Neither
you nor your lawyer can befriend someone, but often social media is not
privatized, at first. Download and preserve photos and videos. Then follow up
regularly. You can often save the expense of iffy surveillance by capitalizing
on "self surveillance".
There
are ways to request this information in discovery, but it's more difficult to
get. Better to get it early and preserve that information for use later.
4.
Push Back
Let
plaintiff's counsel know they are in for a fight. This is not
"hit-a-truck, get-a-check." Be aggressive and demand medical and
employment releases even before you answer the lawsuit. Request
a list of providers and employers also.
Many
plaintiff's lawyers move by inertia so follow up in at least thirty days,
reminding them of your prejudice due to their delay.
Don't
let the braggadocio plaintiff's attorney control the case, but keep some humor
about it. An attorney in Texas told me that he liked to "cut the gonads of
insurance defense lawyers." My response, "Be sure you have a sharp
knife."
5.
Pre-Litigation Medical and Vocational Evaluations
Request
IME's and vocational interviews early, before suit is filed even if it is just
a records evaluation (assuming you have the records). If plaintiff agrees,
you have early evaluation by your expert to rebut their claims. If they refuse,
we have documented our attempt and their rejection, raising questions of their
validity.
Plaintiffs
often delay for months or years while they build their case, one visit at a
time, before filing suit. We remove the argument that initial claims
of injury and disability must be justified if our experts were
not allowed to see the plaintiff until much later.
6.
Dig Deep and Wide
Undermine
plaintiffs' claims of "no prior similar injuries" by digging for
the data. Request the identity of all prior medical insurers, pharmacies
and health care providers.
You
may have a client who thinks the pre-accident information is unnecessary but
it's rare. Most of them know that the plaintiff's pre-accident problems
are highly relevant.
Okay,
we know that the plaintiffs will not tell us the truth about all the
pre-accident health care providers, but they may not realize that when we get
their pharmacy records, we will know who has been prescribing them drugs.
Identify all pharmacies filling prescriptions for any reason. These can often
reveal prescriptions that can again be traced to similar previous maladies.
Alternatively, they can reveal abuse that may be admissible based upon their
effect on life expectancy.
Better
yet, the health insurers will reveal ALL the providers and pharmacies that have
been paid. Subpoena their files. These records can lead to prior treatment that
plaintiff previously denied.
Conclusion:
We
know that every case has its unique challenges. Our clients may not want us to
do some of the things suggested, but any case can be LOST cheaply. Some
cases will only be settled cheaply when we push-back and dig deep. To do that,
we must anticipate and be prepared.
Prior
to the battle at Little Big Horn, Brig. Gen. Alfred Terry had advised Custer to
await the arrival of two columns before engaging the enemy. These
reinforcements were approaching at the time of the attack. So why did Custer
disregard Terry's warning?
Some
historians suggest Custer had lost the element of surprise and was compelled to
attack. Author Mari Sandoz suggested it was because he wanted to be
president. The Democratic National Convention was to begin in St.
Louis in two days, and news of a victory would certainly have boosted
presidential ambitions.
Dozens
of other theories abound, but no doubt Custer used old methods and was
unprepared for the battle. Of course, a legal battle pales in comparison
to military battles; however, the lessons are applicable:
- Be
overly-prepared
- Look for new
methods to fight the battle
- Don't get overly
confident with yesterday's success
- Don't get overly
burdened by yesterday's failure
By
the way, the Trucking Industry Defense Association Advance Seminar in February
2013 will have some unique and practical idea on how to defend the the
FIVE-figure case (yes, those less than $100,000). Also, there will be a session
on how the good case went bad and how the bad case turned out good.
Plan
on being in San Diego for the Advanced Seminar. For more information, check out
www.tida.org for more
information.
