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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
The audio portion of the conference may be accessed via the telephone or by using your computer'sspeakers. Please refer to the instructions emailed to registrants for additional information. If youhave any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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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FOR LIVE EVENT ONLY
Sound QualityIf you are listening via your computer speakers, please note that the qualityof your sound will vary depending on the speed and quality of your internetconnection.
If the sound quality is not satisfactory, you may listen via the phone: dial1-866-869-6667 and enter your PIN when prompted. Otherwise, pleasesend us a chat or e-mail [email protected] immediately so we canaddress the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
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For additional information about continuing education, call us at 1-800-926-7926ext. 35.
FOR LIVE EVENT ONLY
In order for us to process your continuing education credit, you must confirm yourparticipation in this webinar by completing and submitting the AttendanceAffirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you emailthat you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926ext. 35.
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FOR LIVE EVENT ONLY
If you have not printed the conference materials for this program, pleasecomplete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see aPDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
DEPOSING TRUCK DRIVERS &TRUCKING CO. REPRESENTATIVES
Steve Gursten(800) [email protected]
Tim Whiting(312) 372-1655
Steve Gursten(800) [email protected]
Tim Whiting(312) 372-1655
J.J. Burns(816) [email protected]
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
