ANSWERING THE MIDNIGHT CALL:

Transcription

1 ANSWERING THE MIDNIGHT CALL: REACTING TO A CATASTROPHIC ACCIDENT AND HOW PLAINTIFFS ARE TURNING TO REPTILES Jack Riordan Kurt Rozelsky Smith Moore Leatherwood LLP South Carolina North Carolina - Georgia

2 Before You Get the Call Be prepared to contact Your Attorney/Go-Team Have all numbers in advance Authorize Accident Reconstructionist/Independent Adjuster/Criminal Defense Counsel/Hazmat Clean-up Prepare Your Bag Camera Phone or Disposable Camera Safety vest Flashlight Extra pens and notepads FMCSA Rule Book

3 When the Call Comes Decide who needs to be on the scene: Will counsel and experts accompany? Who is already en route to scene? Coordinate the response. Be Prepared to Explain Your Presence.

4 1. At the Scene: The Driver Locate / Protect / Comfort Driver Develop Relationship Learn His /Her Issues Intervene with Police ensure post-accident testing Cellular Telephone Number And Recent Use Information Hands Free Capability? Get Provider info and preserve Hours-of-service Issues secure logs Can You Electronically Verify Multiple Log Sets?

5 2. Identify People/Issues on Scene Emergency Responders Law, Medical, DOT Law Enforcement Jurisdiction Obtain Accident Report Number From Responding Police (Whether Local Or State) Names And Roles Of Investigating Police Officers Governmental Accident Reconstructionist? Types Of Potential Claims and Claimants Property Personal Injury / Death Hazmat

6 3. Identify Equipment Determine What Equipment is on the Truck/Trailer Driver Communication System CB, , FleetAdvisor, ECM Vehicle Tracking System Qualcomm, PeopleNet, QTracs Vehicle Safety Systems VORAD Personal Communication Devices Cell phone, Pager, Texts,

7 4. Photograph Accident Scene: Outside Perimeter Of Entire Scene 360 degrees, Including Important Landmarks Traffic Lights? Signage? Cameras? Position Of Vehicles Begin And Rest Wide Shots and/or Drones Any Physical Evidence On Roadway: Debris, Paint Marks, Gouges anything moved? For Each Vehicle 360 Then Move In On 4 Sides And Four Corners Interior, Airbag and Seat Belt Shots, Odometer, Speedometer, contents (weapons, alcohol, contraband)

8 5. Determine Conflict Issues: Is A Criminal Attorney Needed? Was Driver In Course And Scope Of Employment? Driver asserting mechanical defects/issues with equipment? Employee vs. Independent Contractor Shipper, Owner, Whose Dot Authority? Additional parties? Insurer vs. Motor Carrier And Excess Insurers, if Any

9 6. Any Citations Issued? What Alleged Violations? Will we defend? By Whom? Were Injuries Or Death Involved? Is Drug Testing Required By Company Policy? Is Drug Testing Required Pursuant To Section Post- Accident Testing (FMCSR)? Fatality Yes, Regardless of Citation BI with Immediate Treatment Away from Scene Only if Citation Issued Disabled Vehicle/Towed Only if Citation Issued

10 7. Statements Determine Whether Any Statements Have Been Obtained. By Whom And Who Is Involved In Addition To You. Are Claimant s Investigators Already At Work? Determine if Police Recorded Statements - Miranda Warnings given? Determine if Any Witness Gave Written Statement - FOIA Request for Same

11 8. Identify All Witnesses. Obtain Telephone Numbers And Addresses If Not Available, Get License Tag Number Get Whether Favorable or Not Be The First To Get Recorded Statements In Next Few Days May include First-Responders, Fire Personnel, Other Law Enforcement, ER, Coroner, Medical Examiner preserve. Establish Prime Company contact going forward (30(b)(6)).

12 9. Data Recording Devices? Equipment Identification - Document Data Regarding All Vehicles Involved: Tractor Information Make, Model, Year, VIN Trailer Information Make, Model, Year, VIN Brake System(s) ACM or other data retention devices on claimant vehicle(s)

13 10. Evidence Preservation ECM / VORAD / DashCam and other electronics Identify And Record Engine Details Make, Size, And Transmission Try To Tow Insured s Vehicle To Secure Location. No Vehicle Electrical Start-Up Or Movement If Possible Use ECM / ACM Expert Contact List to preserve all. Contemporaneous Communication Is Best TAKE POSSESSION OF THE DRIVER S LOGS AND OTHER PAPERWORK TO SECURE ALL. Abide by any Written Company Policy.

14 The Reptile Theory What is it? Who came up with it? Why did they do it? How do you recognize the Reptile? How do you Stop it?

15 What is the Reptile Theory? Brain is divided into three parts Reptilian Complex Paleomammalian Complex Neomammalian Complex Focus is on the Fight or Flight Instinct Aims is to influence jury decision-making by appealing to the reptilian complex of jurors brains.

16 Establish Danger to Community Safety Rule + Danger = Reptile. Jury Has the Power to Improve the Community s Safety

17 Who Came up with It? Reptile: The 2009 Manual of the Plaintiff s Revolution Don C. Keenan (attorney) and David Ball (psychologist) Keenan and Ball advise plaintiff attorneys to demonstrate to jurors the immediate danger posed by the actions of defendants because, as they put it, when the reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect herself and the community.

18 How Do you Recognize Reptile? Establishing the Safety Rule Rules of the Road Questions you cannot disagree with and be human Establish that Driver/Trucking Company broke the Rule Jury feels vulnerable because the rule has been broken Jury needs to send message to reduce future danger

19 Examples Does [the defendant] agree that car manufacturers must make vehicles that are free from defects in materials and workmanship? So [the defendant] agrees that if a car manufacturer makes a vehicle that has a defect in materials or workmanship, and someone is injured because of that defect, then the car manufacturer is responsible for the harms and losses caused? Does [the defendant] agree with the statement that car manufacturers must make their vehicles so they operate the way the manufacturer represents they will operate? And if a vehicle does not operate the way in which it is represented it will operate and a person is injured, then the car manufacturer is responsible for the harm caused to that person, isn t it?

20 How Do You Stop It? Emphasize the Details of a case Focus on THIS Plaintiff and THIS case Show Behavior DID NOT Violate a Safety Rule Fight Fire with Fire

21 Lessons Learned We are all human Plaintiffs and Truck Drivers Alike We all owe each other a duty to be reasonable No higher duty simply because a professional driver Juries are adaptable

22 Questions? Jack Riordan Kurt M. Rozelsky