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Opening/Closing Trucking Litigation OPENING STATEMENTS AND CLOSING ARGUMENTS IN TRUCKING LITIGATION (PLAINTIFF’S PERSPECTIVE) HOW TO USE PRIMACY AND RECENCY TO TELL AND CONFIRM THE STORY Written by: FRANCISCO GUERRA, IV P. BRIAN BERRYMAN ALEX M. MILLER Bank of America Plaza, Suite 100 300 Convent Street San Antonio, Texas 78230 210-527-0500 Presented by: FRANCISCO GUERRA, IV State Bar of Texas PROSECUTING OR DEFENDING A TRUCKING OR AUTO ACCIDENT CASE November 4-5, 2010 San Antonio CHAPTER 10.2 Opening Statements And Closing Arguments In Trucking Litigation (Plaintiff’s Perspective) Chapter 10.2 TABLE OF CONTENTS I. INTRODUCTION.……………………………………………………………………………………………….1 II. LIABILITY FOR THE PRIMARY WRONGDOER…………………………………………………………….1 III. SHARED LIABILITY ARISING FROM BEING PART OF THE WRONGDOER……………………………3 IV. SHARED LIABILITY ARISING FROM INDEPENDENT ACTS OF NEGLIGENCE OVER THE PRIMARY WRONGDOER……………………………………………………………………………………….8 V. OPENING STATEMENT AND CLOSING ARGUMENTS – MIRROR IMAGES OF THE SAME STORY...16 VI. CONCLUSION…………………………………………………………………………………….…………….18 i I. INTRODUCTION and then eventually prepare opening statements and closing arguments. This law of primacy is that the state of being first often creates a strong, almost II. LIABILITY FOR THE PRIMARY WRONGDOER unshakeable impression. In fact, studies show that there is an 80% correlation The underlying conduct and liability between the verdict that a juror would have of the primary wrongdoer (the truck driver) rendered immediately following opening is a pre-requisite to all liability theories in a statement and the jurors’ final verdict trucking case. The Federal Motor Carrier rendered at the conclusion of the case.1 Safety Administration has set forth many detailed regulations regarding motor The law of recency states that things carriers, drivers and the vehicles used. The most recently learned are best remembered. Federal Motor Carrier Safety Regulations One of the most significant advantages for a create the standard of care to be followed by Plaintiff in a lawsuit is that the Plaintiff has motor carriers. Compare Omega Contracting the privilege of going first and last during v. Torres, 191 S.W.3d 828 (Tex.App.—Ft. both opening statement and closing Worth 2006) (holding that in a negligence per argument. It is for this reason that the most se case, the jury is not asked to decide effective use of opening statements and whether the defendant acted reasonably closing arguments is to tell the story that under the circumstances because the they will hear first and confirm the story regulations state what a reasonable person that was proven last. We have found that would have done) and Yap v. ANR Freight this method not only maximizes your Systems, Inc., 789 S.W.2d 424 (Tex.App.— ability to sell your client’s story to the jury, Houston [1st Dist.] 1990) (holding that the but because you already know the facts, it federal motor carrier safety regulations also provides a perfect method to build and merely established the standard of care then confirm credibility with the jury. required by law.) Violations of these regulations are also important when trying The second part of this paper will to show that the motor carrier was grossly discuss how to effectively use primacy and negligent (especially in regards to hiring, recency in opening statements and closing training or retaining employees). As detailed arguments. Prior to that and before ever below, the first step in establishing primary beginning to understand how to properly liability against the driver in a trucking cases prepare an opening statement or closing requires the discovery of documents that argument, it is necessary to understand the relate to the Federal Motor Carrier Safety basics of trucking litigation. A trucking Regulations. Examples of areas that should accident is not just a large auto wreck. It is be investigated are as follows: an accident that only occurred because somebody violated the law. It is an A. Driver’s Logs & Supporting accident that occurred because somebody Documents charged with the responsibility to act safely failed to do so. It is an accident that could When working on discovery in trucking have and should have been prevented. A cases, the Plaintiffs have the benefit of trucking accident case is about the safety of government mandated record-keeping the motoring public. The first part of this requirements. The most important of these paper, therefore, is a brief summary of the records is the logbook, which each driver is types of things to be discovered in order to required to maintain. Another benefit is that obtain the information to build your case there are many other documents that can be checked and compared to each other and the 1 logbook to ensure the veracity of each Effective Opening Statements from the Plaintiff’s document. Plaintiffs should take time to Perspective; Karp, Sander 1 request all of these documents and then try •Total miles driving for that to reconcile the documents to ensure that day; all of them match the logbook and the •Truck or tractor and trailer motor carriers account of the events. Also, number; all of these documents should be requested •Name of Carrier; for the greatest span of time possible, but •Driver’s no longer than 5 years. The longer the signature/certification; span, the more likely it is that a detailed •24 hour period starting time; analysis of all the documents could •Main office address; evidence a pattern or practice of doctoring •Remarks; log books and/or other documents, •Name of the co-driver; exceeding speed limits, exceeding hours of •Total hours; and service requirements or other negligent •Shipping document numbers activity or violations of state or federal or name of shipper and laws. commodity. As laws and technology change, the The logs books are sometimes hard to documents that are important in a trucking discover in cases that have been filed more than case change too. Also, through discovery, six months after the subject incident. The the plaintiffs should determine if along FMCSR at 395.8 only requires that the motor with the documents listed below the Motor carrier maintain this information for six months. Carrier has any practices or procedures in place that require greater record keeping of 2. On Board Computer Printouts the drivers. Below is a non-exhaustive list and/or Reports of documents that should be requested in a trucking case. Some tractors are equipped with on- board computers that monitor vehicle and 1. Log Book driver performance and store the information to later be uploaded into a The logbook contains daily log sheets that larger system. This information is often must be completed by the driver. These used to generate reports of the performance books record the driver’s hours of service, of the driver, vehicle, and trip. Further, the miles traveled, on or off duty status and technology of today allows these computers, other information about the trip for each 24- if equipped with GPS, to monitor very hour period while she is on the road. This specific details about the trip. This information is required to be kept under information can record the speed at any FMCSR 395.8. Further, FMCSR 395.3 has particular time, the location at any particular hours of service requirements that can be time, route traveled, any detours, average checked against the log to determine if the speed, time stopped and lots of other driver was exceeding hour requirements. specific details. An onboard computer, with All documents responsive to these GPS capability, could be the Plaintiffs requirements should be requested. greatest rebuttal to the logbooks record of events. Some of the information in the logbook could be very useful in crafting discovery for 3. Bills of Lading a Plaintiff. For example, FMCSR 395.8 requires the following to be included in the A bill of lading is a document that is logbook: required to be issued as a receipt of goods, evidence of title to the property being •Date; transported and as the contract of carriage setting forth the names of the contracting 2 parties and the terms of the carriage. The Sometimes motor carriers will Bill of Lading allows a party to ascertain provide a driver with the proposed schedule the identity of the patients that contracted for the haul. This is used to convey to the for the shipment. driver where he/she is going and when he/she needs to be there. These documents 4. Freight Bill can show if the motor carrier was encouraging the driver to exceed driving The freight bill contains much of the times or the maximum speed limits. Under same information as the bill of lading. The the requirements of FMCSR 392.6, no motor freight bill also contains information on all carrier shall schedule a run nor permit nor the charges, the trailer number, the origin require the operation of any commercial and destination terminals and special motor vehicle between points in such period instructions to the driver for handling or of time as would necessitate the vehicle delivering the load. being operated at speeds greater than those prescribed by the jurisdictions in or through The benefits to discovery of the which the commercial motor vehicle is freight bill are three fold. First, the trailers operated. and the tractors often have separate and distinct insurance policies. The freight bill 7. Driving Records will allow a party to determine the identity of the trailer and is a starting point for Driving records are required to be determining any separate policies. Second, kept by Federal mandate to some extent. the origination and terminus of the Any previous internal accident or shipment could become important if course investigation reports should also be and scope are challenged. The issue of requested regarding the subject driver.
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