Although any case can benefit from early attention, commercial motor vehicle accidents have several critical decision points that present immediately after an accident, and these early opportunities to aid in preparation for the inevitable accidents that demand immediate action.
A full discussion of the intricacies of a “rapid response” – that is, the marshaling of investigatory and expert resources to the scene of the accident to gather and preserve evidence – is beyond the scope of this article. The defense of a claim arising from a truck accident begins well before the accident by careful assembly of a team that can quickly respond to the accident scene to examine and observe the extremely fragile evidence that is informative of how the accident occurred.
Skids marks can be erased by weather and roadway gouges and accident debris are easily disturbed. The Event Data Recorder (EDR) of passenger vehicles and the Electronic Control Module (ECM) data of trucks can be overwritten if action is not taken. And the universe of evidence sources that can be lost with time is ever-expanding; traffic cameras, street-facing security cameras, and Ring doorbells have limited storage capacity. A very early decision is whether an accident creates significant exposure to justify the deployment of the team to the scene. That team potentially can consist of the attorney, investigators, accident reconstruction experts, and expand with bio-mechanical experts, criminal defense attorneys, toxicologists, and mobile communication experts. All should be held at the ready.
Consideration must also be given to whether the circumstances require mandatory alcohol and drug testing of the driver under the Federal Motor Carrier Safety Regulations §382.303. Testing is triggered by a human fatality or a citation to the driver and either an ambulance or a tow from the scene. Alcohol testing must be within two hours with efforts ceasing after eight hours, and drug testing done within 32 hours. If not done, it is of critical importance to document circumstances rendering it impossible to do so.
Many States consider a plea of guilty to a traffic ticket to be an admission of liability to the acts or omissions forming the basis of the citation. See e.g., Eaton v. Eaton, 119 N.J. 628, 575 A. 2d 858 (1990). The driver may see financial sense in pleading guilty and paying a fine rather than appear to contest the charges, especially if the driver lives far from the accident location, unaware of the consequences of the decision or available options. For example, many States allow the driver a “civil reservation” as part of the plea, sealing the plea against use in an ensuing civil litigation. See e.g., New Jersey Municipal Court Rule 7:6-2(a). Therefore, it is advisable to defend a driver involved in a significant accident when any ticket is issued, even if only to obtain a civil reservation.
In addition, savvy lawyers representing parties claiming injuries in the accident will often appear in Court, with and without clients, to argue against the civil reservation. Representation can therefore present an early opportunity for engaging with counsel, gain information, or lay the basis for resolution.
Preventability hearings are the motor carrier’s analysis of whether the accident was preventable from the perspective of the driver. The hearings are typically conducted to determine whether action is needed, such as further training in accident prevention and safe driving practices and/or disciplinary measures that may include termination. The hearings usually involve a review of the accident report and other forensic evidence and interview of the driver, all of which results in a binary determination of an accident being “preventable” or “non-preventable”.
