Taking a post-accident statement from your driver can be the most damaging thing you do to your defense and to your driver. Yet, this has become a sacrosanct tradition of many trucking companies, and virtually all insurers.
The following are some reasons from my perspective in defending truckers and trucking companies in lawsuits.
Statements Help the Plaintiff. Our driver’s statement greatly benefits those who sue us. It rivals the police report as their most useful documentary evidence. It tips the playing field in their favor.
Think of the great benefit we would have if we could get a statement from the plaintiff to lock him into his version of the accident. Rarely, if ever, are we able to do so. His attorney precludes contact and prevents this from occurring.
So why serve up our driver’s version on a platter by taking his statement post-accident? This statement, generally discoverable, is then used against us in depositions or at trial to parse conflicts with other versions of the driver or facts of the case.
Absent our self-inflicted statement, the plaintiff attorney is faced with having to get the facts by discovery. In other words, he has to work for it just like we do instead of being handed it with no effort.
Limitations in the Recollection of the Event When an accident occurs, a lot happens fast. There is the convergence of time and distance, speed and force.
Every time our driver is asked about the accident, he is invariably asked specific questions about each of these particular components of the accident that happened in just an instant. “How fast…?” “How far…?” “How much time…?”
We ask about specific facts supposedly gleaned by a driver in the instant of the occurrence as he is trying to perceive and react to the unfolding events. We ask him to remember particular facts of a time when his focus was on reacting within a fraction of a second to the unfolding events.
This is the reason that most police departments refrain from taking a statement from an officer immediately after his use of force. The ability to recall the specifics of an instantaneous occurrence is limited at best. Why, then, should we place our driver’s in the position of being forever locked in to such definite facts immediately after the accident?
Potential Conflict with Other Statements The driver’s recollection may and will vary each time he is asked. This is not dishonest, but reality of human nature.
Any post-accident statement creates the potential for conflict with other statements—to the police, in deposition, or even at trial. Why create such conflict in the absence of overwhelming benefit? Requiring the driver to commit his recollection to a statement or written report immediately after the accident creates yet one more opportunity for conflict.
Potential Conflict with Other Evidence. A post-accident statement etches the driver’s answers as to speed, distance, and time in stone.
Why? Much, if not all, of this evidence is ascertainable by mechanical and scientific means. The ECM download and accident reconstruction can provide precise numbers or at least ranges of each of these quantities.
These mechanically and scientifically determined times, speeds, and distances will trump any instantaneous subjective quantifications of the driver. Thus, any conflict only provides ammunition to those who question the truthfulness of our driver, no matter how well-meaning and honest the quantities he provided.
Limited Litigation Value. Our driver’s statement is of little, if any, value to us in law suit. The only possible use is to “refresh his recollection” if he has absolutely no recall. Not a misrecollection—absolutely no recall.
How do you think that looks to the jury? The driver is totally blank on a vital fact in the case and needs a piece of paper from his attorney to recall. Sure, there are explanations. It is natural to be nervous on the stand. The statement is his recollection shortly after the accident.
However, in a process dependent on jury perception as to whom is telling the truth and has the most reliable recollection of the facts, if your driver needs a statement to remember key facts, your case has problems.
Balance this limited use to revive a recollection against the overwhelming downside. A misrecollection by the driver conflicting with his own statement is subject to cross-examination by evidence we created and results only to undermine his credibility.
Potential Incrimination of Our Driver. Think about it. You take a statement from the driver who makes an admission that can be used by the police to bring criminal charges.
For example, in a rear-end accident resulting in serious injury or death, an admission by the driver of an activity that distracted his attention could result in criminal charges, including homicide by vehicle. Your subpoenaed statement could be Exhibit A in the criminal trial.
The impact of subpoenaed statements is not limited to the driver. His conviction or guilty plea could result in automatic negligence of your company. It could provide a spring board for punitive damages.
Conclusions. These are the primary reasons, based upon my litigation perspective, that I counsel against taking a post-accident statement, written or oral, or written report from our driver. From that experience, the value of such is far outweighed by the potential damage.
Doug Marcello is a transportation attorney who has earned his CDL. His law practices focuses upon serving the trucking industry. Based in Central Pennsylvania, he has represented trucking companies in cases throughout the US, having been specially admitted in 35 states. He is a frequent speaker at industry events and driver safety meetings. He has also written numerous articles concerning issues confronting the industry and has produced several DVDs relating to accident response and aggressive defense of claims. All posts by Doug Marcello