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When to retain legal counsel
  • Retain legal counsel immediately after a crash with any potential for litigation.
  • Be prepared to address counsel’s questions regarding the crash and your operation.
  • Preserve records for the attorney to avoid spoliation.

One key decision in the case of a major accident is that of when to retain counsel. The best time to retain counsel is ASAP. By getting an attorney on your side early, you can avoid the pitfall of spoliation along with many other pitfalls. A common pitfall is simply answering all requests, no matter how ludicrous. Your attorney can work with the judge and plaintiff’s attorney to make sure the other side is being reasonable.

Many mistakes made in the first 48 hours cannot be corrected, and an experienced trucking industry defense attorney can help prevent the mistakes. Any request for documentation and statements from other parties, whether formal or informal, should be cleared with your attorney.

Once the plaintiff’s attorney has the interrogatories and discovery material, the plaintiff’s attorney’s investigators and experts will go to work on it. They will review everything to see if the carrier has contributed to the accident through negligence.

There are certain areas that will get special attention and your legal counsel will ask how you handle your operational and compliance areas. These areas are not limited to:

  • Hiring standards. Did the carrier comply with the driver qualification regulations and did the carrier have hiring standards? By the way, the investigators and experts will do their own background check on the driver as well as checking on the carrier’s background check.
  • Performance standards. Did the carrier follow the annual review processes dictated in the regulations? Did the carrier have standards for their existing drivers, including a disciplinary process that included terminations, and were they followed?
  • The driver’s DQ file will be examined page-by-page to verify compliance with the regulations.
  • The driver’s personnel file will be examined to see if the driver was performing up to company and industry standards.
  • The carrier’s operational practices will be reviewed. Compliance with various regulation areas (the setting of schedules, hours-of-service management, etc.) will be checked.
  • HOS compliance will be verified, including the carrier’s safety management, auditing, and compliance practices.
  • Vehicle condition and maintenance records will be checked page-by-page to see if the vehicle had been maintained and repaired correctly.
  • Special attention will be paid to the trip during which the accident occurred.

To get you prepared, your legal counsel and any experts engaged will review everything (logs, trip paperwork, dispatch records, company and driver receipts, credit card and phone records, electronic records, vehicle condition, etc.) to verify compliance by the driver and carrier, and the operational feasibility of the trip. What they are looking for is any place the carrier is not in compliance or below industry standards. If the attorney can prove that the carrier was not in compliance or was well below industry standards, the carrier has not followed its duty to act. This can lead to the carrier being potentially exposed to a large litigation award.

The key point to remember is that the carrier may be ruled liable for the damages done during the accident (the plaintiff’s attorney proved that your driver, and therefore you as his/her company, are responsible for the accident); what you are trying to avoid is being proven to be a carrier that does not take the correct steps to comply. It is one thing to be responsible for an accident, it is another to have an attorney prove that it was your lack of compliance efforts that either led to, or contributed to, the accident that injured their client.