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Deposing Truck Drivers and Trucking

Company Representatives in Injury Cases Questioning Deponents, Using Demonstrative Exhibits, Raising and

Defending Objections, Dealing With Difficult Deponents, and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, JULY 19, 2016

Timothy M. Whiting, Founding & Managing Partner, Whiting Law Group, Chicago

J.J. Burns, Esq., Dollar Burns & Becker, Kansas City, Mo.

Steven M. Gursten, Attorney, Michigan Auto Law, Farmington Hills, Mich.

Presenting a 90-Minute Encore Presentation of the Webinar with Live, Interactive Q&A

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DEPOSING TRUCK DRIVERS &

TRUCKING CO. REPRESENTATIVES

Steve Gursten

(800) 968-1001

sgursten@michiganautolaw.com

michiganautolaw.com Tim Whiting

(312) 372-1655

twhiting@wlglaw.net

wlglaw.net

J.J. Burns

(816) 876-2600

jjb@dollar-law.com

truckcrashlawyers.com

FRAMING THE CASE

6

CONSIDERATION 1

Truck crash cases Are NOT Car accident cases!

7

CONSIDERATION 2

Truck Crash Cases are

Cases about Rules

8

RICK FRIEDMAN SAYS A

“RULE”

SHOULD BE:

1. Easy for jurors to understand.

2. Hard to refute.

3. Clearly violated by a Defendant.

4. Important enough to matter.

9

WHY RULES?

Framing the case to help jurors decide in our favor by presenting fair rules of conduct.

Preferably from unquestionable, credible sources.

Violations of these rules needlessly endanger the public.

And therefore, jurors have a reason to care because it also affects them, their safety, and NOT just your client.

Allows jurors to use money, through their verdict, to be a hero and improve their own safety and that of the community.

10

CONSIDERATION 3 It’s not about the driver. It’s about the company.

11

ROOT CAUSE(S)

Why the crash occurred

What the Driver could have done to prevent the

crash

What the Company could have done to prevent

the crash

12

THE TIMELINE

13

DRIVER VS. COMPANY

How much time did each have to understand, plan and react?

Company Driver

14

“REQUIRE / PERMIT”

15

CONSIDERATION 4

“Driving a wedge”

The Driver & The Company

have different interests

16

THE COMPANY DEPO: PREPARATION

Safety Profile

Documents via FOIA

Company Websites

News Coverage / Press Releases

Sub-Industry Research

Corporate Filings

Company History

17

COMPANY PREP, CONT.

Background on Company Personnel:

- Faces of the Company

- Identified in responses

- The Designee(s)

18

COMPANY PREP, CONT.

Written Discovery

Discovery plan

Early review

Follow-up / Fight

Records Custodian depo

19

THE CORP REP DEPO

Tactical Rules

Admissions

Driving the Wedge

Informational

Organization

Terminology

Operations

20

THE CORP REP DEPO, CONT.

Issue #1: The Know-Nothing

Research, Anticipate & Pre-empt

Make your record

Get rep’s background

Identify people with knowledge

Admissions

21

THE CORP REP DEPO, CONT. Issue #2: The Dozen Designees

Background on everyone

Identify the “Alpha”

Confirm specialties & knowledge bases

Individualize outlines

Exploit divergence

22

THE CORP REP DEPO, CONT.

Issue #3: Company Knowledge of Crash and its own Investigation

Establish (in the abstract) company policy & purpose of crash

investigation

Company’s determinations re: this crash?

Why was this crash not investigated / investigated differently?

How will the Company learn from this crash and prevent future similar

crashes?

23

THE CORP REP DEPO, CONT.

Issue #4: The Wedge

Force Company to choose: it either stands with its Driver, or it does

not

Driver status post-crash

Specific language re: the Driver’s failures / misconduct

Specific language re: the Company’s innocence & specific efforts with

Driver / relevant safety issues

24

THE CORP REP DEPO, CONT.

Issue #5: Safety Culture

What it’s not

Safety vs. Compliance

Customers vs. Motorists

Budgets and Tools

25

THE DRIVER: PREPARATION

Background Check

Motor Vehicle Reports (MVR)

Criminal History

Social Media Research

Past Employers

Year and State obtained CDL

Search for Corporate or Business Affiliations

Previous Civil Litigation

Basic Asset Search

26

DRIVER PREP, CONT.

Key FMCSRs

General FMCSRs for Drivers

§ 382- Controlled Substance and Alcohol Abuse Testing

§ 383- CDL Standards: Requirements and Penalties

§ 390- FMCSR: Compliance

§ 391- Qualifications for Drivers and LCV Driver Instructions

§ 392- Regulations for Driving a CMV

§ 393- Parts and Accessories for Safe Operation

§ 395- Hours of Service of Drivers

§ 396- Inspection, Repair, and Maintenance

§ 397- Transportation of Hazardous Materials: Driving and Parking

Key Point: truck driver should admit importance and applicability

27

DRIVER PREP, CONT.

CDL Manual

Relevant CDL Sections

Key Rule: “This section contains knowledge and safe driving

information that all commercial drivers should know. You must

take an exam on this information to obtain a CDL.”

28

DRIVER PREP, CONT.

Other Authoritative Sources

Driver Training Manuals / Videos

Tractor-Trailer Driving Training Manual- J.J. Keller & Associates, Inc.

Accident Investigation Manual- North American Transportation Management Institute

Smith System Videos and Manuals- www.smith-system.com

FMCSA Commercial Driver’s License Manual https://www.fmcsa.dot.gov/registration/commercial-drivers-license/commercial-drivers-license-manual

Delmar’s Tractor-Trailer Truck Driver Training- Alice Adams

Preventability Manuals

Defensive Driving Course Manual- National Safety Council

Commercial Vehicle Preventable Accident Manual- J.J. Keller & Associates, Inc.

Trucking Company driver safety manuals / training materials

29

THE DRIVER DEPO

1. Common sense principles/truths that no one can credibly deny

2. Conduct concerns choices

3. Admissions re: rules, trucks, industry & company

4. Company responsibility

5. Relationships

30

DRIVER’S KNOWLEDGE OF RULES

FMCSRs Require it

Industry Standard of Care

Industry Documents

Company’s Own Verification

31

NEGLIGENT SUPERVISION & TRAINING

§ 390.3(e)(2): Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations…

§ 390.3(e)(1):Every employer shall be

knowledgeable of and comply with all regulations…

- “What does your company do, to

satisfy its duty to require observance of…”

32

THE CRASH ITSELF

Timing for ultimate issue questions

Open-ended questions

Let the driver talk, then backtrack for details

*Exception

Put him/her back in the Driver’s seat

Force the Driver out of the prepped response

33

DRIVING THE WEDGE

Prime the Driver

Company’s testimony

Financial Information

Post-crash status

Pleadings

Empower the Driver

He/She is the authority on the road

Excuse the Driver

Company’s safety claims

Other areas of divergence

34

OTHER ISSUES

Fatigue

Medical Conditions

Drugs / Medications

Cell Phone

Passenger

Weather

Inspections / Maintenance

Previous Careless Driving Record

???

35

Steve Gursten

(800) 968-1001

sgursten@michiganautolaw.com

michiganautolaw.com

Tim Whiting

(312) 372-1655

twhiting@wlglaw.net

wlglaw.net

J.J. Burns

(816) 876-2600

jjb@dollar-law.com

truckcrashlawyers.com

36