For The Defense, December 2011 - DRI Today

Trucking Law
important way to document physical evidence
at an accident scene, good reconstructionists
are good photographers by
necessity. The reconstructionist will typically
photograph a scene from the outside
edges of the scene inward to the vehicles’
final resting points. His or her photographs
will document, for example, the beginnings
of tire marks, points of impact, vehi-
The accident
reconstructionist will have
more difficulty collecting EDR
data from the other vehicles
involved in the accident
than collecting it from the
trucking company’s vehicle.
cle damage, and damage to inert objects
such as road signs.
The accident reconstructionist will collect—or
have collected—the electronic data
from the truck, and, if possible, other vehicles
involved in the accident. See Michael
W. Halvorson, “Black Box” Technology and
Its Use in Litigation, For The Defense, January
2009 (thoroughly discussing event data
recorder data, its usefulness in investigating
accidents involving commercial vehicles,
and its value in defending lawsuits
that arise from those accidents). The greatest
challenge the reconstructionist will
have is preserving data from the vehicles
until the data can be extracted. This is particularly
true of the data stored in the vehicle’s
event data recorder (EDR).
The accident reconstructionist should
take several steps to preserve the data from
the commercial vehicle’s EDR. If possible, the
data should be extracted on the scene. This
is the safest way to preserve last-stop data. If
the data cannot be extracted on scene, the vehicle
should be towed and its keys secured,
because the last stop data will be overwritten
as soon as the vehicle is operated or the engine
is engaged. Finally, the reconstructionist
should determine the truck’s manufacturer,
52 ■ For The Defense ■ December 2011
model, and VIN number, as well as the engine’s
manufacturer, model, and build date.
A visual inspection will confirm the truck’s
and the engine’s specifications.
There are three methods to download
and extract data from an EDR: incident
truck, surrogate truck, and bench-top.
The preferred method is to use the engine
manufacturer’s hardware and software
to extract the data while the EDR is still
attached to the vehicle, referred to as the
“incident truck” method. The second
method involves removing the EDR from
the truck, storing it until the download can
be performed, and then placing the EDR
module on a surrogate truck that is identical
to the incident truck for the extraction.
This method is referred to as the “surrogate
truck” method. The bench-top method
involves plugging the EDR directly into a
laptop using the manufacturer’s software.
This method can cause the loss of data such
as trouble codes or fault codes.
The accident reconstructionist will have
more difficulty collecting EDR data from
the other vehicles involved in the accident
than collecting it from the trucking company’s
vehicle. First, a reconstructionist
normally cannot control whether someone
operates the other vehicles or engages their
engines after an accident. Second, most
states have enacted legislation protecting
the privacy of the owners of the other vehicles.
Some states require a trucking company
to obtain written permission from
the owners of the other vehicles before
the company can use electronic data from
those vehicles.
Attorney
While a trucking company representative
is the general manager of the rapid
response team, the attorney on the team
operates as the coach or the field general.
The attorney has a number of tasks that
need to be carried out from the scene or
from the attorney’s office, including
1. Providing updates to and consulting
with the company representative about
the team’s investigation;
2. Overseeing the flow of information
between the driver, law enforcement,
the media, the adjuster, the reconstructionist,
and any other technical members
of the team;
3. Ensuring that the adjuster and the
reconstructionist carry out the tasks for
which each has responsibility;
4. Arranging for private air travel for team
members if required by the size of the
state or the remoteness of the accident
scene;
5. Ensuring that the vehicle, data, and
other evidence are properly preserved;
6. Interviewing the driver and taking
detailed notes when necessary;
7. Determining whether a criminal defense
attorney should represent the driver;
8. Ensuring that the driver is drug and
alcohol tested if required by the DOT
regulations or by company policy; and
9. Conducting an early evaluation of logbook
compliance.
It is the attorney’s responsibility to make
sure that the investigation is initiated as
rapidly as possible and that no stone is left
unturned.
Company Representative
The company representative—whether a
claims professional, a risk manager, or an
in-house attorney—ultimately will make
the calls on the extent of the accident investigation
and the size and components of
the team. The company representative will
deploy the team by selecting the team’s
attorney and often selecting the team’s field
adjuster and accident reconstructionist.
The representative will also ensure that the
driver knows that he or she can only make
a statement to the attorney, provides the
exact location of the accident to the team,
and provides everyone’s contact information
to other team members.
Criminal Defense Attorney
A trucking company’s driver should receive
representation by a criminal defense attorney
anytime the driver is subject to an
ongoing criminal investigation or has been
arrested after an accident. Because of possible
conflicts of interest between the driver
and the trucking company, the criminal
defense attorney should not work for the
same law firm as the attorney who will
direct the “go” team’s investigation. This
ensures that the attorney will not violate
any ethical rules and will provide unfettered
counsel to the driver.
A trucking company should, in most
cases, pay for a driver’s defense. First, it is
simply the right thing to do and will sig-