I was just retained to represent a man injured by an 18 wheeler and have initiated a thorough investigation of the scene, vehicles, and other evidence that will be critical in obtaining the largest possible recovery of money.
I spoke to attorneys in the Texas Trial Lawyers Association about this topic and have attached the first part of the paper I gave which discusses how to conduct such an investigation.
Police officers, eyewitnesses and drivers
You and/or your accident reconstructionist must get to the scene as soon as possible. Various personnel may have already photographed the scene and the vehicles, preserving evidence of speed, skid marks, degree of crush, yaw marks, debris, directional movements, etc. The investigating officer(s) may have seized all paperwork relating to the load being transported, including the often damning driver’s logs. The local PD or DPS sometimes dispatches special safety compliance officers to the scene as well. Furthermore, local newspapers and news media may have covered the wreck. Find out if they interviewed witnesses.
It is important that your case file include, at a minimum, the following materials:
• Police report and supplements from the local office or from DPS, P.O. Box 4087, Austin, Texas 78773 (512-424-7121):
• Separate criminal or incident report, including supplemental reports:
• Local television, radio and internet media, and weather services:
• Witness statements;
• Diagrams;
• Measurements;
• Photographs and videotapes;
• Dispatch records including 911 call sheets;
• Toxicology reports; and
• All in-car videos, including audio
Discover the investigative files from all aspects of emergency response personnel, including the fire department, ambulance service, and law enforcement on the local, county, and statewide levels.
Personally photograph the accident scene. You may find that a member of the police department, fire department or EMS team took pictures or even locate a video that may not be part of the official file.
The driver’s personal appearance, the appearance of the equipment, the operation of the tractor-trailer, the effort and ability to avoid a serious highway collision, and the driver’s response to the accident immediately thereafter are facts that give a jury an impression of the corporate defendant as well as the individual it employs. Truck drivers, as a free-spirited sort, frequently emblazon their vehicles with slogans, decals, flags and the like which, in the proper setting, may prove offensive to a local jury hearing the evidence at a later date. The driver’s CB handle may also be illustrative of his personality and character.
Statements should be taken, but only after the investigator receives detailed instruction from the attorney on how he is to proceed. Training your investigator on what you are looking for in a statement is critical. Only the attorney knows how the facts will appear to a jury and he may have statements that are worthless, or even worse, hurt your case. Try to find out where the carrier instructed its driver to wait for further contact and with whom he may have spoken.
Letters
Immediately send a spoliation letter by certified mail instructing the carrier to preserve any information regarding the operation of the truck by the driver prior to the crash and warn that failure to preserve such information will constitute spoliation of evidence. At a minimum, the letter should seek preservation of the following evidence:
• Driver’s (and co-driver’s) logs for the six months preceding the collision;
• Driver’s qualification file;
• All incident reports involving the driver;
• All 70 hour and other compliance audits of the driver (and co-driver)
• All trip receipts, weight tickets, bills of lading, and operational documents that could be used to conduct audits and verify log accuracy;
• Satellite tracking information for the six month period prior to the crash;
• Bills and statements from Com Data or similar expense/cash advance services used by the carrier;
• All information contained in or retrieved from onboard data recorders;
• E-mail and other communications between the driver and dispatcher or carrier;
• All maintenance records, pre-trip inspection reports, post-trip inspection reports, and annual inspection records; and
• The tractor/trailer themselves, or at a minimum relevant portions of the equipment if there is any evidence or even a suspicion that equipment malfunction or failure played a role in the collision.