I have written in the past that a trucking accident case is much more than an auto accident case with a bigger vehicle involved. Lawyers representing people injured in trucking accidents need to consider the different agency relationships that may be involved between the driver, owner/lessor/lessee of the vehicle, as well as the causes of action and/or insurance issues that arise out of those relationships.
Another difference is that trucks are perceived to be more dangerous on the road than standard automobiles. They are bigger and heavier, have more and bigger “blind spots”, and are operated by drivers who may have fatigue issues from spending hours and hours in the driver’s seat. Most drivers/jurors have had at least one terrifying personal experience out on the road as a result of an encounter with a big rig.
In fact, I nearly had one take me out on my way to work this morning. In rush hour traffic on I-695, the truck was weaving in and out of traffic (always a great idea) and came into my lane without checking to see if it was safe. Because I was on the driver’s side, this can only mean that the driver never checked his mirror before coming over. We’ve all seen those signs on trucks that say “if you can’t see my mirrors, I can’t see you.” Well, I could see this guy’s mirrors, which makes me think he would have seen me if he had looked. Thankfully, I was able to avoid a collision, but I am confident the driver had no idea I was there until he heard my horn.
Safety Rules at Trial
Because of the real and perceived dangerousness of these vehicles to other drivers, personal injury cases involving tractor-trailers are ripe for a “Reptile/Rules of the Road” approach. Sidebar: if you are handling personal injury cases and you have not read Don Keenan and David Ball’s “Reptile” or Rick Friedman and Pat Malone’s “Rules of the Road“, you should 1) not tell anybody; and 2) read them right now.
In a nutshell that does not do the theory justice, the reptilian brain reigns supreme over cognitive and emotional parts of the brain if you feel unsafe. When facing damage, the reptile “protects his genes by impelling the juror to protect himself and the community.” The trial tactic is to remind the jury that the trial is not some abstract concept that has does not impact them personally. The truth is that the message jurors send does have an impact on the safety rules the doctors and companies follow. Safety and following the rules is the core of the justice system and a verdict should send a message that will keep us all safe.
Using the example from my morning commute, a Rule might say “Tractor-trailer drivers must be sure the way is clear before changing lanes, to protect other motorists on the roadway.” These can be drafted many different ways, and doing so is definitely an acquired skill.
Examples of Safety Questions
There are some safety questions you will want to ask in every case. Here are some malpractice example questions.
- Do you agree that it’s important to follow rules to avoid injury and death?
- Is a safety rule in medicine that a doctor should include a medical clearance before surgery? Is this particularly true with elective surgery where the patient is not at imminent risk of permanent injury or death?
- Does every patient need medical clearance before surgery?
- Is it ever okay to subject a patient to an unnecessary risk?
- Is a doctor ever allowed to needlessly endanger a patient?
- Do you agree that when there’s more than one available way to do a procedure, the doctor must select the way that carries less danger to the patient?
Who Follows Safety Rules
You usually do not think of Republicans as ideal jurors. But moderate Republicans are rule-followers who will be intolerant of a doctor who ignored an important safety rule or a driver who chose not to pay attention (if that is a key issue at trial). These jurors also tend to earn a good living. I’m not excited about rich jurors because they think often think they worked hard for their money and do not want anyone else to do as well by getting into a truck accident or by being the victim of medical malpractice. But the upside in those cases is if the battle is over damages, they are less shocked to see big numbers.
In contrast, millennial jurors seem to be the worst of both worlds. They are shocked by big numbers and they are not rule followers. There are not many cases where I’m willing to go to bat to save a millennial juror during jury selection.