Subscribe
Share
Share
Embed
The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
00:03
Speaker 1
Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Well, welcome everybody. Today we're going to be discussing how to handle a trucking or commercial vehicle case. And to help me with that conversation, as always, I have Joe Caputo and Chrissy Hagan. Why don't you say hi guys and introduce yourselves.
00:36
Speaker 2
Hey everybody, my name's Joe Caputo. I'm one of the partners here at Zynda Law Group and I handle the serious and catastrophic cases at the firm nationwide.
00:45
Speaker 3
Hi, my name is Chrissy Hagan. I work out of our Denver, Colorado office and I also work on the severe and catastrophic injury cases, primarily trucking and wrongful death cases.
00:57
Speaker 1
Great. Well, let's just start off by asking the question, why do you all enjoy working on trucking or commercial vehicle cases? Why do you enjoy working on those versus maybe some other types of cases?
01:12
Speaker 2
I don't want to say that all kind of standard car wreck cases are the same. They're not. But I thought the most exciting thing early on in my practice in dealing with trucking cases was just how much experience and knowledge you need to handle them proficiently. There's tons to know, whether it's on the regulation side, the hiring side or the different rules and requirements that you have to have in order to drive a commercial motor vehicle or a truck. And so not only was it an opportunity for me to learn a lot about something I didn't know about, quite honestly, but as you can imagine, when you're driving 40,000 pound vehicles, the impact that our clients feel when they're hit by a commercial motor vehicle or a 18 wheel truck is way more significant on the whole than a standard car wreck.
02:14
Speaker 2
And so, you know, the opportunity to help what is oftentimes the client's worst day of their life and help them through the process and see them on the other side is certainly super rewarding.
02:28
Speaker 3
Yeah, it's pretty much the same. Similar reasons for me. I just really enjoy all the intricacies that go into trucking cases. And like you mentioned, there's so many different aspects of a trucking case and it's fun and interesting to learn from experts in different areas, like hiring experts, accident recons, really getting to the bottom of what happened and learning about how it could have been prevented way sooner when it comes to the negligent hir, supervising and training aspects of the case that are involved in trucking.
02:59
Speaker 1
Cases, you know, and to me, I really, I Love the idea that in these cases we can make a big difference for society. There are so many trucks on the roadway and they interact with just about every human being in the United States of America. And whether or not trucking companies and truck drivers are driving their vehicles safely has a major impact on everyone's life. One thing I want to say from the get go, I think 90%, 95% of truck drivers do a good job, follow the rules, are hard working, good folks. Unfortunately, it's the 5% or less that we typically run into where it's usually not their first, second or third violation, but it's an ongoing pattern of behavior.
03:48
Speaker 1
And I love the idea of us being able to make sure that there's a consequence for when they hurt someone and also being able to help all of the amazing families and kids and different people we can help along the way. What about some interesting cases that you guys have worked on that you think made a particular impact either in a client's life or you found very rewarding?
04:12
Speaker 2
I don't know that there is. You know, there's so many instances of cases where we've had the opportunity to really help somebody that was in a bad position as a result of somebody else. Right? And so we want to help that person. We want to make the community safer. But there are two cases of mine in particular that I recall where I still keep up with the clients, constantly reminded, whether it's through Facebook messages or Christmas cards, that they're doing well. And I remember years ago when they weren't doing as well. And so it's been super rewarding to see that progress. One case that kind of comes to mind is a case on a very narrow roadway in a country city outside of kind of a rural area, one lane going in each direction.
05:07
Speaker 2
And this particular couple that I represent, they put on weddings. And so they were putting on a wedding, and they were leaving from the wedding to go back to tend to their horses. You know, you're in Texas when you're leaving a wedding at midnight to go take care of horses at 1am so they're on this narrow roadway, one lane in each direction. It's pitch black, there are no lights out, and for some reason there's an 18 wheeled truck headed in the opposite direction. So the tractor is facing them in the opposite direction with their headlights on, but the tractor trailer is actually back into a driveway and the trailer is taking up the entirety of both northbound and southbound traffic. But you don't see any part of the trailer because it's Pitch black.
06:03
Speaker 2
And they don't have the different conspicuity issues that you're supposed to take care of when you're an 18 wheel truck. And so our clients literally broadside this tractor trailer. Police come out, obviously don't talk to folks that are significantly injured and write a really bad crash report that was not in our client's favor. And what we did was a combination of factors. But we got a reconstruction expert out there, we had them inspect the trailer, found out that they didn't have the, you know, they had the conspicuity issues that we talked about with regards to tape and lights and reflectors and things that should have shown up if they had done their due diligence on making sure that the maintenance was correct.
06:53
Speaker 2
Then we also pulled, and this was the most effective thing, we pulled the dash cam video from the police officer that went to the scene. And any person that watched this video would have thought seeing the headlights from this 18 wheel truck, that the truck was on the opposite side of the street, that they were going to pass each other. And you could not see this trailer until you got two feet away. And so were able to turn an insurance company in a crash report that before hiring us, were not taking responsibility whatsoever. But through a couple of investigative tools, were able to flip the script on the insurance company's liability stance and ended up turning out a really satisfactory outcome for both the clients.
07:44
Speaker 1
Well, that's a great practice tip. Always get the dash cam video. I mean, there are cameras everywhere now. Gas stations ring doorbells. If you've got a trucking case, always get the video footage. I've been amazed how many cases we now have that we actually have on video footage.
08:03
Speaker 2
One of our attorneys, just the other day we had a trucking case where they pulled up to an intersection at a traffic light and a pedestrian walked by with the right of way. And the truck driver's trying to make a right on red and is only looking left, but doesn't see pedestrians coming from the right hand side. And there weren't any witnesses, but our team went door by door to these different businesses that had cameras looking out at the street. And because we got on it early and sent spoliation letters and showed up in person knocking on doors, were able to pull that video that showed the actual crash before it was lost, destroyed or edited in some way.
08:50
Speaker 2
And that's going to go a really long way at making sure that we're able to hold the right folks responsible and then try to see what we can do to prevent this from happening again.
09:03
Speaker 3
A lot of times we get calls from people who are severely injured, catastrophically injured, and they unfortunately were the ones who were sighted in the crash. But it's not until you start the investigation and realize that in a lot of these they're not at fault at all. It's just that the police officer didn't get a chance to speak with them because they were immediately put in the ambulance and taken to the hospital. And so I think they're unfairly placed in the wrong many times. And like you said, it requires a lot of work to go into doing a full, complete investigation to make sure that you're showing exactly what did in fact happen.
09:39
Speaker 1
I think that's a great point. Why do you guys think that is? I mean, I see that all the time and I don't think the police officers are bad people or intentionally putting down the wrong information on the report. But I would say it's at least 50 where they will blame the injured person or the person that was killed rather than the truck driver. Why do you think that happens?
10:02
Speaker 2
I can tell you. I have two young kids and if I see a whole glass of milk spilled on the floor, if I only talk to my oldest kid and I refuse to talk to my youngest kid and I ask him who did it, my oldest daughter is going to point to my young son. And if I just don't do anything else and don't ask my son what happened, I'm probably going to go with the first story that I heard. And I think that kind of translates to what happens in these crashes. I don't think it happens intentionally, but oftentimes, like all three of us know our clients are in the back of an ambulance or have a serious head orthopedic injury.
10:46
Speaker 2
And the police officers aren't able to utilize their version of the story when they're coming up with kind of reconstructing how this happened. And I wish that truck drivers would raise their hand if they were responsible and say, hey, my fault. What do I need to do? But I think we've all found out the hard way that taking responsibility is one of the toughest things for people to do. What do you think, Christy?
11:13
Speaker 3
No, I agree completely. You get one side of the story and one case that comes to mind is the at fault driver turned left causing a T bone collision. So clearly our clients were in the car that had the right of way. But the story that the police officer got was that our clients were speeding and that's why the crash was caused. And there's this made up liability dispute when it should really be a lot more clear cut. You turn left, failed to yield the right of way. Our client was severely injured. This is also a case where when the client called us, I remember she was in the hospital and she was asking me whether she should accept the $50,000 offer that the adjuster was making in the hospital bed.
12:00
Speaker 3
And I said, you know, that's a really big sign that they're just trying to get it resolved very quickly. You know, you've got to be really careful because you don't even know the full extent of your injuries, let alone when you're going to get out of the hospital. And luckily she ended up hiring us. We were able to put together a significant life care plan and, you know, her harms and losses ended up being significantly higher than anything that was being offered a day after the crash happened.
12:29
Speaker 1
That's called swoop and settle. And that unfortunately is a tactic that some insurance companies use is they'll show up at the hospital room and offer what looks like a big number, but when you take out medical bills, it's actually a zero offer to the person. And it's really sad because occasionally we'll get a call from someone, it's too late, and they've already signed over their rights on the case. But I would say that's another practice tip, is don't take the crash report at face value. Talk to the investigating officer, find out what they looked at. And I know a lot of insurance companies will get out to the scene, you know, same day after, and try to help guide the investigation in a more catastrophic case.
13:16
Speaker 1
And once again, police officers have very difficult jobs and investigating accidents isn't always their highest priority because they have 10 other things to do. And so unfortunately, they're not able to do as much of a deep dive as say, a true accident reconstructionist would do. Especially when you have an insurance adjuster or a defense lawyer in your ear kind of guiding you towards certain pieces of evidence.
13:39
Speaker 2
Well, that's the good thing about these trucking cases that may not exist in standard motor vehicle crashes. As far as an investigation goes, right, we have so many more tools at our disposal that if you know how these cases work and what the requirements are, we can, even after the fact, after the crash report, go back and get driver's logs, trip receipts, different investigative tools. If you have experts and experienced trucking attorneys that know what to look for, that will allow you to pin down exactly what happened after the fact, you just have to know what to look for.
14:23
Speaker 1
I had a really sad case several years ago where a father was killed. He was hit by a truck driver. He was a construction worker. The father, he was in a truck with three other people. Three of the four were killed. And the driver had a catastrophic brain injury and did not recall what happened. His mom came to me and he had a little girl, so grandmother, really sweet little girl. And the police placed the blame on the driver of the pickup truck that we represented. And the police officer was pretty adamant in his analysis of what occurred. And we started our investigation and were able to get the 911 tapes and identified three witnesses who actually saw it happen and got affidavits from them stating that the 18 wheeler had actually ran the red light.
15:23
Speaker 1
And if we hadn't gotten those 911 tapes, we wouldn't have found those witnesses. So I think that's another tip is always get the 911 tapes and you can find out who called 911 to report what they saw. And that's a great way to find witnesses to the case, eyewitnesses. And we've had a lot of success with that also.
15:48
Speaker 4
Zynda Law Group is a plaintiffs personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up a time to discuss your case.
16:28
Speaker 2
It always cracks me up whenever I think about this particular case. But you want to make sure, first and foremost send out a spoliation letter to these trucking companies and the drivers for cell phone information, logbooks, trip receipts, whole laundry list of things that you're going to want to have access to later. But one requirement that these truckers have if they're driving interstate is they have hours of service. So they have some rules about how long they can be on the road in a given day once they've started on duty in a given week, and how often they have to take breaks. And so these drivers, at least a couple years ago, more of them are Moving to the electronic logs.
17:14
Speaker 2
But a lot of trucking companies and truck drivers still use paper logs where they're filling out their hours via pencil and pad in their truck. And it's a very serious deal. As you can imagine it. If you're a truck driver driving for 20 hours a day, you're endangering all of the kids and my grandmother and grandfather and husbands and wives on the roadway. So you want to make sure that you're not drowsy or falling asleep at the wheel. And so we obtained those logs very early on and you need to pour through them, right? Because I can tell you that on their face they're more often than not going to line up with the rules and the requirements.
17:58
Speaker 2
But where you can catch them sleeping, no pun intended, is when you try to line that information up with either no one gets from Florida to California in 12 hours or you line it up with trip receipts. And so I remember a deposition where the truck driver didn't know that this was going to come, but that we had his log books and we committed him to their accuracy and the time zone that they're in. And then we showed him that logbook in the middle of Oklahoma at 12pm on a Saturday. And then we pulled out his credit card trip receipts from a fuel up that he's given by the trucking company and he's in Boise, Idaho. And so having him see that he was in two places at once was a jaw dropping moment.
18:54
Speaker 2
But it's a moment that you want to be aware that you need to check out because it's not just do the log books line up with the hours of service requirements, but does it make sense in conjunction with all the other discovery that I have at my.
19:09
Speaker 3
Disposal, it's important to make sure you're familiar with all of the federal motor carrier safety regulations. And I think some of the more important ones are part 391, which has to do with driver qualification files. The one that you mentioned, Joe, is another one. Then of course inspection, repair and maintenance requirements 396. So just making sure you're familiar with all those when you know right before you take the deposition because there's a lot of good rules to be gleaned from those and to make sure you go over well.
19:42
Speaker 1
And you can tell Kristy's done a lot of these because she's got those citations right off the tip of her tongue. Very impressive, Chrissy. Very impressive. That's why we have here. I have no idea what she's talking about, but no, that's exactly right. You've got to know the federal regulations if you're going to practice this area of the law. It's just like the statutes in other types of cases. You got to start there. And one thing that if you take nothing away from this is anything else, is that a car wreck and a trucking case are not the same thing. I mean, it's as different as a premises liability case is versus a car wreck case. And when you get one of these types of cases, you need to really prepare yourself and understand all of the background in how they work.
20:26
Speaker 1
How is not just the truck driver at fault, but the trucking company. You know, on the topic of hours of service, for example, the system is set up to incentivize the truck driver to cheat. The truck driver is one of the victims in these cases a lot of times because they're not paid by the hour, they're paid by the mile. So if they hit traffic and they're stopped for several hours or they have to, you know, go pick up a load and they're not being able to charge for that makes it very difficult for them to earn a living. So you need to draw the motivation back to how the trucking company has set this stuff up. Because a lot of times it's obvious that the truck driver is fudging on their hours of service.
21:08
Speaker 1
And a well run, safely run trucking company could spot it if they wanted to, but a lot of times they don't.
21:15
Speaker 2
Well, that's a good point, because you want to take these cases from two perspectives, right? You want to figure out what happened and what specific thing went wrong, but you always want to bring it back to the company. Right? And the companies, the trucking companies have an obligation to hire and train and supervise appropriately. And so there are some tools, especially some investigative tools that you can use early on in a trucking case that I think allow you to get a snapshot of what type of trucking company we're looking at, what their safety rating is, how they perform on inspections and out of service violations, and give you an opportunity to game plan your discovery before you get information three or four months down the line.
22:08
Speaker 2
And so just kind of as a quick overview that the two things that I would suggest you've got to do is you've got to submit FOIA requests, which are Freedom of Information act requests, and get compliance reviews, enforcement actions, warning letters to and from the Federal Motor Carrier Safety Administration and this trucking company, and then also go to the SAFER website So the Federal Motor Carrier Safety Administration makes data available to the public about these companies, things like how many drivers and how many units they have, but also the important stuff like their violation history and inspection history. And then you can line up those investigations and those inspections with VIN numbers and license plates and try to tie it down and make some sort of relationship between prior violations and what happened in your case.
23:05
Speaker 2
And so, really, knowing the tools that are at your disposal early on will really help set you up for success down the line.
23:12
Speaker 1
Yeah. And if you need any of these resources, feel free to reach out to our firm. If you're a defense lawyer, sorry, you're not eligible to get our inside tips. But everybody else, feel free to reach out, and we're happy to share any insights or resources on how to investigate these cases, because I think that's a big part of it is going and getting the information, and the defense is not going to give it to you. I cannot think of any cases where the defense has produced in discovery damning evidence that reveals that they were cheating on their logs or that they were an unsafe company. All of that's usually objected to with some really forceful objections that kind of hide the ball.
23:55
Speaker 2
I agree, and I know Chrissy's had a bunch of experiences with this as well, but I can think of one recently in a trucking case were handling, hiring is really important in terms of the standards. And in discovery, were produced one set of hiring standards in a case that they wanted us to believe were the applicable standards. And when we started pressing the issue in the form of a 30B6 or a corporate rep deposition, all of a sudden, two days before this deposition, we get hit with the real hiring standards that are way different than the ones from 20 years ago that they produced and tried to pass off as the hiring standards in place. And so if it's walks like a duck and it talks like a duck, it's probably a duck.
24:44
Speaker 2
So I would tell you to keep digging and press on and make sure you're getting the right information. I'm sure you've had experiences like that, too, Christina.
24:54
Speaker 3
Yeah, definitely the one you just spoke about. Yeah. You always, for some reason, have to do your own investigations. You can't just ask for it in discovery because you're not going to get everything that you need. So you have to know where to look. Sometimes you could just Google and get a lot of information, take a look at prior employment listed for the defendant driver that you're suing, send subpoenas directly to those places. Send subpoenas to governmental entities to get the information you need. Always have to be thinking outside the box to follow up on stuff like that.
25:28
Speaker 1
Well, and Kristi, you do a lot of the expert work at our firm. What are some of the expert witnesses that a new attorney might want to make note of In a trucking case, what types of experts would you want to get?
25:40
Speaker 3
You're most likely going to have a negligent hiring, training and supervision claim against the motor carrier as a result of a collision. So in that case, you're going to want to look to a hiring and safety expert so you know someone who can talk about the industry standards when it comes to what a safe company should have been doing to adequately train their truck drivers, how they should have been supervising them properly, the processes and procedures and safety manuals they should have had in place, what they're doing to make sure those are followed and retrained if necessary. All those types of things. Someone who's been in the trucking industry for a while is a good person to speak with, someone who has experience testifying as an expert in that field.
26:25
Speaker 3
Then on the other side, there's also accident reconstructionists who of course specialize in if there's a liability dispute in particular, you're going to want to have someone go through the black box data, go to the scene, get all the information possible, and recreate that collision to find out exactly what happened, who was at fault. There's human factors experts. There's a ton of different experts we've worked with just recently on a case.
26:53
Speaker 1
On the human factors. That person's going to deal with perception. If you have a stoplight case or a stop sign case and you're trying to decide could they have seeing the person in time to stop, that can be a really useful expert in those types of cases. You want to get them involved early. Don't wait until you're further down the case. They can also help you tailor your discovery so you know what you're asking for and what you're looking for in the case. So another tip is get the right liability experts involved and get them involved early in the case. And we're about out of time here, but what are some of the tips you would give a newer attorney on how to get started into trucking cases? What resources, what groups to join, what cles?
27:42
Speaker 1
How could they become an expert in this field?
27:45
Speaker 2
I would tell you a couple things. I think first and foremost, the way that you become a good trucking attorney is to learn as much as you can as quickly as you can and you can do that in a hands on way and you can do that by reading and listening. And so in terms of being hands on I would tell you go to these inspections yourself with your expert, ask questions. I remember and this is a little embarrassing. First trucking case that I worked on I went to the inspection. It was all day long. It was the middle of July and I thought it was something that you wore a suit to. So I wore a suit in 105 degree heat all day. I don't know how I lasted. I think I drank 12 bottles of water.
28:35
Speaker 2
But I literally asked more questions to the two experts that were out there then I'm sure they've ever been asked. But it allowed me to put the pieces of the puzzle together and understand it later on and then reach whether it's journal articles or medical journals. If you're dealing with damages experts. Dorothy Sims book on exposing deceptive defense. Doctors is great from a damage perspective and learn as much as you can and then try to utilize it and tailor it to your specific case so that you never make the same mistake twice.
29:12
Speaker 3
And I'm just realizing I did the same thing as far as going to my first inspection wearing a skirt and tights. So I'm wondering why I didn't at least get the heads up.
29:24
Speaker 2
It's how we haze people. It's in the luxury.
29:26
Speaker 1
Exactly. Make sure you wear a tie to that person's dressing.
29:30
Speaker 3
But yeah, I agree. Same thing. A lot of hands on stuff. Experience is always best. And then AAJ has a lot of good resources cles to listen to on your way to and from work once you're back to going into an office. And then other resources on their website as well.
29:47
Speaker 1
Yeah and I think all of us here are a little insane because I listen to cellies while I exercise and work out and that's a great way to absorb knowledge. It's not the most if you're not enjoying it. It's not necessarily the most engaging sometimes. But I think just getting immersed in the topic and spending 2030 minutes a day reading sales, reading books, that sort of thing. Well the final thing we usually like to leave everyone with is a book recommendation and my book recommendation for this week is Litigating truck cases by Michael Lieserman. Great book. If you're trying to get into this field, trying to learn more about it. Hopefully you all found some of this information helpful. Our firm really has a really open door giving nature.
30:32
Speaker 1
So if you have questions about a trucking case you're working on, feel free to reach out. Happy to share any resources that we may have that may help you in your next case. Well guys, thank you all so much for being here today and it was good chatting with you. Thanks.
30:46
Speaker 2
See you next time.
30:51
Speaker 1
Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. To get notified about new episodes that are upcoming or have been released, go to zdfirm.com podcast Sign up for our mailing list.