Why it is important to immediately associate a trucking litigation specialist when you are called about a catastrophic truck crash
You are a great lawyer in your area of practice. You are also smart enough to know when a big case may require prompt action outside your comfort zone.
Just as a trial lawyer may not feel comfortable handling a complex real estate, divorce or estate planning matter, a great lawyer in those fields may not want to risk a client’s rights by trying to figure out how to handle a catastrophic truck crash case.
When you get a call from a friend or client that a family member has been killed or seriously injured in a crash with a tractor trailer in Georgia, one common reaction is be to defer the trouble and expense of serious investigation, assuming you can settle quickly for the known policy limits. You may get the “low hanging fruit” that way but miss millions of dollars in potential recovery for your client that is not immediately obvious on the surface. If that happens, you may miss a reporting deadline with your E&O carrier before you recognize the mistake.
It is common for trucking insurance companies to tender a first layer of insurance coverage and make soothing conversation while concealing additional layers of coverage. We had a case in which an excess insurance company denied in writing that it insured the trucking company. But we kept digging. A year later that insurer paid out $3 million for the trucking company it had denied insuring.
While victims and their family attorneys wait for the insurance company to “do the right thing,” trucking companies and their insurers may busy burying incriminating evidence. Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, often before an ambulance can remove a victim. A rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep at least part of their work secret.
When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has that rapid response team combing over the evidence. They may bring in investigators who are retired state troopers to coax less experienced law enforcement officers to the the defense point of view. At the same time, they may be quietly deleting electronic data that would be damning.
By the time the victim’s family decides to aggressively push the case and gets a lawyer experienced in litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where critical evidence was “lost” at the scene while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.
A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital lingering in a coma before death, a relative reached out to a lawyer in another practice area he happened to know. That lawyer, whom I have known all his life, then immediately called me.
While the undamaged truck was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for a detailed temporary restraining order to lock down evidence. With the help of our expert, we recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating until it crashed into a line of cars stopped at a red light.
We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield. It was a powerful exhibit.
If we had not acted quickly to obtain a court order in order to preserve evidence, the truck would have been put back in service and much of that critically important data may have been “lost.” We would never have seen the video or the telematic data.
There was a discovery fight about access to the truck driver’s cell phone for a forensic download. Coincidentally, the solicitor general in the county where the crash occurred issued a search warrant to obtain the cell phone for forensic evaluation. Cell phone data showed that the truck driver had been texting on his phone rather than sleeping all but three hours the night before.
Further investigation revealed that a medical examiner had signed a document stating the driver was disqualified due to non-compliant obstructive sleep apnea, though the trucking company denied that it had received that report.
We also found that the company was on notice of a prior incident in which the truck driver rear-ended another car stopped at a stop light. Despite knowing of the incident, the company failed to obtain a copy of that accident report which would have revealed the driver lied about what happened.
I really wanted to try that case before a jury. Our two focus groups valued the case in “eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot dispute the family’s preference for quiet closure.
While a good lawyer in an unrelated area of practice, the family’s attorney readily recognized that he did not have expertise in trucking litigation. By associating a trucking lawyer, he made over one million dollars for helping with client relations and serving as “second chair” without investing his own funds in the substantial case expenses. Choosing to annuitize that fee seven figure fee, he now has a financial plan substantially improving the quality of the rest of his life.
Georgia Rule of Professional Conduct 1.5(e) recognizes that clients are best served when lawyers can bring in other attorneys with needed areas of expertise, and still share in the responsibility and the fees. It provides:
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
Fully complying with this rule and documenting the client’s consent to an appropriate allocation of fees and responsibility between counsel, we generously share fees with c0-counsel who bring cases to us. Thus, attorneys in Georgia and across North America who are preeminent in bankruptcy, real estate, securities, probate or corporate law readily acknowledge when they need to refer a client to a lawyer who specializes in tort law. Similarly, we refer matters outside the scope of practice to experts in those specialties.
We work closely with referring lawyers, who may have as much or as little involvement as they wish. A lawyer who practices in another state or another area of law may net a greater fee than if they had done all the work themselves. But the main thing is that a referring lawyer can know that the client is in good hands.
When associated by attorneys in neighboring states, we have been admitted pro hac vice for individual cases.
If a client has a claim for a catastrophic truck crash anywhere in the Southeast, call us at (404)253-7863.
Ken Shigley is a board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group, and a Certified Civil Trial Advocate of the National Board of Trial Advocacy.
Mr. Shigley is 2019 recipient of the Tradition of Excellence from the State Bar of Georgia General Practice and Trial Section. He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries.
In 2011-12, Mr. Shigley was president of the State Bar of Georgia, which includes all the lawyers and judges in Georgia. He also has served as chair of the Institute for Continuing Legal Education in Georgia (2012-13), State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994).
A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. Ken is a widower. His two children are married and own their own.