A checklist of statutes, regulations and industry publications to search for in case prep, and how a focus group can help
Tip No. 9 in my series of blog posts for lawyers who handle truck accident cases: You must find all the “rules” that a commercial motor carrier violated that caused or contributed to a serious crash. This includes all of the Federal Motor Carrier Regulations, industry publications, safety materials from respected sources like JJ Keller and of course the traffic laws.
When I was President of the American Association for Justice Truck Accident Lawyer Group, I brought in the co-author of Rules of the Road, Rick Friedman, to speak to the group at a free litigation group member seminar in Chicago. I did this because of all the cases out there, trucking cases are ideally suited for a “rules of the road” trial strategy. A plaintiff truck accident lawyer gets the defendant to admit to the “rules of the road” that the defendant violated, and that these rules are important to safety (or risk looking stupid and dangerous to a jury in denying).
Safety rules from the Federal Motor Carrier Safety Administration (FMCSA) are an important start. But you must do more and find more if you want to fully protect your client.
From the beginning of case preparation, make an exhaustive search for the following:
- Applicable “rules” in statutes,
- Industry publications (e.g., J.R. Keller),
- Commercial driver’s license manuals,
- Training materials,
- Federal Motor Carrier Safety Rules
- CDL Manuals,
- J. J. Keller publications (manuals, training materials, training videos),
- North American Transportation Management Institute training materials,
- Any industry specific truck driver training materials (e.g., National Ready Mix Concrete Association).
In discovery, you can seek internal manuals, work rules, etc. Supplement this with common sense “rules” that would be difficult to credibly deny, such as “better safe than sorry.” You can utilize these in depositions of the opposing parties.
Step 2: The focus group
Remember to simultaneously evaluate how the rule violations may be perceived by jurors as having broader significance as a threat to public safety.
What I tend to do is make a comprehensive list of as many rules as I can, and then focus group them to see which are important to a prospective jury. It is always fascinating because what we sometimes think is so important as lawyers is often not to the people who sit on our juries. And things that I would otherwise have thought are clearly not relevant are extremely important. The focus group is so important because it is a reality check for us and a reminder that ultimately it is people who will decide these cases.
A giant list of rule violations without a focus group might be great for settlement purposes with an insurance company, but a disaster for trial. If you have a serious truck accident crash, the second step after making your list of rule violations should be the focus group.