At the scene

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At the scene

By Wendy Leavitt

Apr 1, 2003 12:00 PM

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Consider these pointers:

Know when to go to court. If you were in the wrong, settle it.
Obey all safety rules and know them well enough to recite from memory. Know everything required during a pre-trip, walk-around safety inspection. Lack of knowledge about proper procedures, even procedures unrelated to the incident, can go against you.

Do's and don'ts...

Even great truck drivers with outstanding safety records can be involved in an accident, the law of averages just catches up with them," points out Edward Nicklaus, managing partner of Nicklaus & Pena, P.A., based in Coral Gables, FL.

A trial lawyer with 31 years' experience, much of it defending truck fleets and their drivers, Nicklaus speaks from long experience. Last summer, for example, his firm successfully represented Penske Truck Leasing in a $7.5-million negligence lawsuit. For professional truck operators, being involved in a lawsuit of any size is a very sobering thought. To make things tougher still, the general public knows very little about trucks or trucking and years of bad press have made people-- made juries-- less than sympathetic to the trucking industry.

But Nicklaus says there are several things truck drivers and owners can do to prepare themselves for the courtroom, long before they ever find themselves in a lawsuit.

Watch hours of service. Plaintiff's attorneys will ask, "Well, just how sleepy were you?" even if the case has nothing to do with fatigue. They will also ask questions like, "Were you in a hurry? Are you paid by the load? Were you speeding to get one more load before you had to stop for the day?"
Maintain your equipment. Whether or not brakes were a factor in an accident, for instance, it will go against you if the truck's brakes are discovered to be out of adjustment.
Make sure you know all about your equipment. "Are automatic slack adjusters on the truck?" a plaintiff's attorney might ask. "What does that mean? How do you maintain those?" Sure, it's a trick question, but it looks bad if you don't know the answer.
If you're an owner-operator, keep good and thorough records, including maintenance records. Without the data, even if you’re in the right you may be at risk because you can't successfully defend yourself.
If you are in an accident, call the safety director or your supervisor if you are driving for a fleet or your own attorney if you are self-employed.
Cooperate fully with authorities, but don't talk to anyone about the accident until your legal counsel arrives.
Taking photos of an accident may be useful, but be careful and think about what you’re doing. You should not take photos of people with injuries or be occupied taking photos if you might be of help at the scene setting out flares, making calls or assisting others.
Drivers are often very anxious and upset following accidents or other incidents. In this frame of mind, they might plead guilty to traffic violations even when they’re not at fault.
In Florida and some other states, a guilty plea is admissible as evidence in a civil case and may be offered by a plaintiff's attorney as evidence of negligence.
If you plead "not guilty," the violation is not admissible as evidence, even if you are later found guilty of the violation.
Honesty is always the best policy. If you’re a professional driver and have done your best, the facts will support you after an accident.

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