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.
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.
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.