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Presenting a live 90-minute webinar with interactive Q&A

Deposing Truck Drivers and TruckingCompany Representatives in Injury CasesQuestioning Deponents, Using Demonstrative Exhibits, Raising andDefending Objections, Dealing With Difficult Deponents, and More

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, MAY 24, 2016

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Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Timothy M. Whiting, Founding & Managing Partner, Whiting Law Group, Chicago

J.J. Burns, Esq., Dollar Burns & Becker, Kansas City, Mo.

Steven M. Gursten, Attorney, Michigan Auto Law, Farmington Hills, Mich.

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DEPOSING TRUCK DRIVERS &TRUCKING CO. REPRESENTATIVES

Steve Gursten(800) 968-1001sgursten@michiganautolaw.commichiganautolaw.com

Tim Whiting(312) 372-1655

twhiting@wlglaw.netwlglaw.net

Steve Gursten(800) 968-1001sgursten@michiganautolaw.commichiganautolaw.com

Tim Whiting(312) 372-1655

twhiting@wlglaw.netwlglaw.net

J.J. Burns(816) 876-2600jjb@dollar-law.comtruckcrashlawyers.com

FRAMING THE CASE

6

CONSIDERATION 1Truck crash cases

Are

NOT

Car accident cases!

Truck crash cases

Are

NOT

Car accident cases!

7

CONSIDERATION 2

Truck Crash Cases are

Cases about Rules

Truck Crash Cases are

Cases about Rules

8

RICK FRIEDMAN SAYS A“RULE”SHOULD BE:

1. Easy for jurors to understand.2. Hard to refute.3. Clearly violated by a Defendant.4. Important enough to matter.

1. Easy for jurors to understand.2. Hard to refute.3. Clearly violated by a Defendant.4. Important enough to matter.

9

WHY RULES?Framing the case to help jurors decide in our favor by

presenting fair rules of conduct.

Preferably from unquestionable, credible sources.

Violations of these rules needlessly endanger the public.

And therefore, jurors have a reason to care because italso affects them, their safety, and NOT just your client.

Allows jurors to use money, through their verdict, to be ahero and improve their own safety and that of thecommunity.

Framing the case to help jurors decide in our favor bypresenting fair rules of conduct.

Preferably from unquestionable, credible sources.

Violations of these rules needlessly endanger the public.

And therefore, jurors have a reason to care because italso affects them, their safety, and NOT just your client.

Allows jurors to use money, through their verdict, to be ahero and improve their own safety and that of thecommunity.

10

CONSIDERATION 3It’s not about the driver.It’s about the company.

11

ROOT CAUSE(S)

Why the crash occurred

What the Driver could have done to prevent thecrash

What the Company could have done to preventthe crash

Why the crash occurred

What the Driver could have done to prevent thecrash

What the Company could have done to preventthe crash

12

THE TIMELINE

13

DRIVER VS. COMPANYHow much time did each have to understand, plan and react?

Company Driver

14

“REQUIRE / PERMIT”“REQUIRE / PERMIT”

15

CONSIDERATION 4The Driver & The Company

have different interests

“Driving a wedge”

16

THE COMPANY DEPO: PREPARATION

Safety ProfileDocuments via FOIACompany WebsitesNews Coverage / Press ReleasesSub-Industry ResearchCorporate FilingsCompany History

Safety ProfileDocuments via FOIACompany WebsitesNews Coverage / Press ReleasesSub-Industry ResearchCorporate FilingsCompany History

17

COMPANY PREP, CONT.

Background on Company Personnel:

- Faces of the Company

- Identified in responses

- The Designee(s)

Background on Company Personnel:

- Faces of the Company

- Identified in responses

- The Designee(s)

18

COMPANY PREP, CONT.

Written Discovery

Discovery plan

Early review

Follow-up / Fight

Records Custodian depo

Written Discovery

Discovery plan

Early review

Follow-up / Fight

Records Custodian depo

19

THE CORP REP DEPO

TacticalRules

Admissions

Driving theWedge

InformationalOrganization

Terminology

Operations

TacticalRules

Admissions

Driving theWedge

InformationalOrganization

Terminology

Operations

20

THE CORP REP DEPO, CONT.

Issue #1: The Know-Nothing

Research, Anticipate & Pre-empt

Make your record

Get rep’s background

Identify people with knowledge

Admissions

Issue #1: The Know-Nothing

Research, Anticipate & Pre-empt

Make your record

Get rep’s background

Identify people with knowledge

Admissions

21

THE CORP REP DEPO, CONT. Issue #2: The Dozen Designees

Background on everyone

Identify the “Alpha”

Confirm specialties & knowledge bases

Individualize outlines

Exploit divergence

Issue #2: The Dozen Designees

Background on everyone

Identify the “Alpha”

Confirm specialties & knowledge bases

Individualize outlines

Exploit divergence

22

THE CORP REP DEPO, CONT.

Issue #3: Company Knowledge of Crash and its own Investigation

Establish (in the abstract) company policy & purpose of crashinvestigation

Company’s determinations re: this crash?

Why was this crash not investigated / investigated differently?

How will the Company learn from this crash and prevent future similarcrashes?

Issue #3: Company Knowledge of Crash and its own Investigation

Establish (in the abstract) company policy & purpose of crashinvestigation

Company’s determinations re: this crash?

Why was this crash not investigated / investigated differently?

How will the Company learn from this crash and prevent future similarcrashes?

23

THE CORP REP DEPO, CONT.

Issue #4: The Wedge

Force Company to choose: it either stands with its Driver, or it doesnot

Driver status post-crash

Specific language re: the Driver’s failures / misconduct

Specific language re: the Company’s innocence & specific efforts withDriver / relevant safety issues

Issue #4: The Wedge

Force Company to choose: it either stands with its Driver, or it doesnot

Driver status post-crash

Specific language re: the Driver’s failures / misconduct

Specific language re: the Company’s innocence & specific efforts withDriver / relevant safety issues

24

THE CORP REP DEPO, CONT.

Issue #5: Safety Culture

What it’s not

Safety vs. Compliance

Customers vs. Motorists

Budgets and Tools

Issue #5: Safety Culture

What it’s not

Safety vs. Compliance

Customers vs. Motorists

Budgets and Tools

25

THE DRIVER: PREPARATION

Background Check

Motor Vehicle Reports (MVR)

Criminal History

Social Media Research

Past Employers

Year and State obtained CDL

Search for Corporate or Business Affiliations

Previous Civil Litigation

Basic Asset Search

Background Check

Motor Vehicle Reports (MVR)

Criminal History

Social Media Research

Past Employers

Year and State obtained CDL

Search for Corporate or Business Affiliations

Previous Civil Litigation

Basic Asset Search

26

DRIVER PREP, CONT.

Key FMCSRs

General FMCSRs for Drivers § 382- Controlled Substance and Alcohol Abuse Testing

§ 383- CDL Standards: Requirements and Penalties

§ 390- FMCSR: Compliance

§ 391- Qualifications for Drivers and LCV Driver Instructions

§ 392- Regulations for Driving a CMV

§ 393- Parts and Accessories for Safe Operation

§ 395- Hours of Service of Drivers

§ 396- Inspection, Repair, and Maintenance

§ 397- Transportation of Hazardous Materials: Driving and Parking

Key Point: truck driver should admit importance and applicability

Key FMCSRs

General FMCSRs for Drivers § 382- Controlled Substance and Alcohol Abuse Testing

§ 383- CDL Standards: Requirements and Penalties

§ 390- FMCSR: Compliance

§ 391- Qualifications for Drivers and LCV Driver Instructions

§ 392- Regulations for Driving a CMV

§ 393- Parts and Accessories for Safe Operation

§ 395- Hours of Service of Drivers

§ 396- Inspection, Repair, and Maintenance

§ 397- Transportation of Hazardous Materials: Driving and Parking

Key Point: truck driver should admit importance and applicability

27

DRIVER PREP, CONT.

CDL Manual

Relevant CDL Sections

Key Rule: “This section contains knowledge and safe drivinginformation that all commercial drivers should know. You musttake an exam on this information to obtain a CDL.”

CDL Manual

Relevant CDL Sections

Key Rule: “This section contains knowledge and safe drivinginformation that all commercial drivers should know. You musttake an exam on this information to obtain a CDL.”

28

DRIVER PREP, CONT.Other Authoritative Sources

Driver Training Manuals / Videos

Tractor-Trailer Driving Training Manual- J.J. Keller & Associates, Inc.

Accident Investigation Manual- North American Transportation Management Institute

Smith System Videos and Manuals- www.smith-system.com

FMCSA Commercial Driver’s License Manual https://www.fmcsa.dot.gov/registration/commercial-drivers-license/commercial-drivers-license-manual

Delmar’s Tractor-Trailer Truck Driver Training- Alice Adams

Preventability Manuals

Defensive Driving Course Manual- National Safety Council

CommercialVehicle Preventable Accident Manual- J.J. Keller & Associates, Inc.

Trucking Company driver safety manuals / training materials

Other Authoritative Sources

Driver Training Manuals / Videos

Tractor-Trailer Driving Training Manual- J.J. Keller & Associates, Inc.

Accident Investigation Manual- North American Transportation Management Institute

Smith System Videos and Manuals- www.smith-system.com

FMCSA Commercial Driver’s License Manual https://www.fmcsa.dot.gov/registration/commercial-drivers-license/commercial-drivers-license-manual

Delmar’s Tractor-Trailer Truck Driver Training- Alice Adams

Preventability Manuals

Defensive Driving Course Manual- National Safety Council

CommercialVehicle Preventable Accident Manual- J.J. Keller & Associates, Inc.

Trucking Company driver safety manuals / training materials

29

THE DRIVER DEPO

1. Common sense principles/truths that no one can credibly deny

2. Conduct concerns choices

3. Admissions re: rules, trucks, industry & company

4. Company responsibility

5. Relationships

1. Common sense principles/truths that no one can credibly deny

2. Conduct concerns choices

3. Admissions re: rules, trucks, industry & company

4. Company responsibility

5. Relationships

30

DRIVER’S KNOWLEDGE OF RULES

FMCSRs Require it

Industry Standard of Care

Industry Documents

Company’s Own Verification

FMCSRs Require it

Industry Standard of Care

Industry Documents

Company’s Own Verification

31

NEGLIGENT SUPERVISION & TRAINING

§ 390.3(e)(2): Every driver and employee shall beinstructed regarding, and shall comply with, allapplicable regulations…

§ 390.3(e)(1):Every employer shall beknowledgeable of and comply with allregulations…

- “What does your company do, tosatisfy its duty to requireobservance of…”

§ 390.3(e)(2): Every driver and employee shall beinstructed regarding, and shall comply with, allapplicable regulations…

§ 390.3(e)(1):Every employer shall beknowledgeable of and comply with allregulations…

- “What does your company do, tosatisfy its duty to requireobservance of…”

32

THE CRASH ITSELF

Timing for ultimate issue questions

Open-ended questionsLet the driver talk, then backtrack for details*Exception

Put him/her back in the Driver’s seat

Force the Driver out of the prepped response

Timing for ultimate issue questions

Open-ended questionsLet the driver talk, then backtrack for details*Exception

Put him/her back in the Driver’s seat

Force the Driver out of the prepped response

33

DRIVING THE WEDGE

Prime the DriverCompany’s testimony Financial InformationPost-crash statusPleadings

Empower the DriverHe/She is the authority on the road

Excuse the DriverCompany’s safety claimsOther areas of divergence

Prime the DriverCompany’s testimony Financial InformationPost-crash statusPleadings

Empower the DriverHe/She is the authority on the road

Excuse the DriverCompany’s safety claimsOther areas of divergence

34

OTHER ISSUES

FatigueMedical ConditionsDrugs / MedicationsCell PhonePassengerWeatherInspections / MaintenancePrevious Careless Driving Record???

FatigueMedical ConditionsDrugs / MedicationsCell PhonePassengerWeatherInspections / MaintenancePrevious Careless Driving Record???

35

Steve Gursten(800) 968-1001sgursten@michiganautolaw.commichiganautolaw.com

Tim Whiting(312) 372-1655

twhiting@wlglaw.netwlglaw.net

J.J. Burns(816) 876-2600jjb@dollar-law.comtruckcrashlawyers.com

36