Deposing the Safety Director
A Checklist
By Sylvester "Sly" James, Jr.
The Sly James Firm, Trial Lawyers, P.C.
802 Broadway, 7th Floor
Kansas City, Missouri 64105
Telephone: 816-472-6800 Facsimile: 816-472-6805
sly@slyjamesfirm.com
http://www.slyjamesfirm.com/
Perhaps one of the two most important fact depositions that may be taken in a truck wreck case is that of the Safety Director of the defendant truck company. A well-considered approach and thoughtful, thorough preparation for this critical deposition can enhance the value of your case.
The deposition of the Safety Director requires planning. I resist the impulse to take this deposition too early in the litigation because the results can be so much better with a thorough preparation.
Here are 10 thoughts or suggestions on steps that can be taken prior to the deposition of the Safety Director that might help to maximize the result.
1. Gather the facts.
Counsel should gather all factual information available. It sounds axiomatic, however, sometimes in our haste we only get the basics and convince ourselves that we can develop the facts as we go along. Although it is true that we are in constant fact gathering mode, the more we know early, the better. Some things that should be done as soon as possible after the wreck and engagement include the following:
a. Visit the scene of the accident with your accident reconstruction expert if at all possible;
b. Photograph and video the scene;
c. Inspect and photograph all vehicles with your expert;
d. Photograph and video injured parties;
e. Interview and take statements from witnesses - try to do this on video if possible;
f. Review the accident reports;
g. Meet with investigating law enforcement - video the meeting(s) if possible; and
h. Talk to tow truck drivers, ambulance personnel, emergency room doctors and nurses, and other health care providers.
2. Collect all relevant documents.
Through requests for production and records depositions, collect records relevant to the case and the deposition including, but not limited to:
a. Driver's employment file;
b. Driver's log book;
c. Current copy of driver's driving record;
d. Company drivers' training materials;
e. Documents distributed to drivers and employees at company safety meetings/seminars, and sign-in sheets showing attendance, if any;
f. Company Mission Statement;
g. Company Employee Manual;
h. Company Safety Policy;
i. Company accident classification policies and system;
j. Schematic of company hierarchy;
k. Company corporate financial documents, if available;
l. Vehicle inspection and maintenance records;
m. Driver discipline reports; and
n. Driver accident reports.
3. Focus the case for themes and concepts.
Whenever possible, it is advantageous to conduct a focus group as early as possible in the discovery phase in order to develop case themes and concepts. Early focus groups can provide you with information about what issues and questions may come to the minds of "lay people" and what information they find pertinent and relevant to their decision-making process. Armed with this knowledge, you are in a better position to determine what discovery or concepts are important to develop or expand upon.
If possible, at an early focus group, test potential exhibits and specific documents with the group that you believe are either important or "smoking guns." By presenting these documents to a focus group, you may find the best way to use them during depositions and, ultimately, at trial. They will also confirm or refute your perceptions of the importance of such documents and the effectiveness of potential exhibits.
4. Think about your case.
We seldom think enough or long enough about our cases. I am not talking about the occasional time in the car or the shower where we devote five minutes of uninterrupted thought to the case, I am talking about spending a half or full day doing nothing other thinking about the good, the bad, and the ugly of the case and how all the parts fit together.
A great time to carve out time to seriously think about your case is as soon as possible after you have gathered facts and documents and had a theme development focus group. Now that you have tools and concepts - how can you best put them together? What areas of weakness do you need to address and how? How can you best incorporate theme concepts into discovery? All of these issues require thought and planning. Do it early in the case and discovery so that adjustments can be made and successes can be duplicated.
5. Depose defendant corporate representative.
Depose the defendant corporate representative if that person will be someone other than Safety Director. Start to imbed some of the themes and concepts you began to develop in your focus group. This is a great opportunity to start framing the case in your terms and themes. It may also allow you the opportunity to see how the defense will respond to your themes, concepts, and evidence such that you can further refine your approach.
6. Review pertinent regulations.
Each case is different, however, all cases implicate some aspect of the Federal Motor Carrier Regulations. (FMCSR) Some of the more common regulations include, but are not limited to:
a. 49 CFR 390.5, 49 CFR 390.15 - Regulations to establish minimum reporting and recordkeeping regarding accidents;
b. 49 CFR 382 and 49 CFR 40 - Controlled Substances and Alcohol Use and Testing;
c. 49 CFR 383.51 and 49 CFR 391.15 - Disqualification of Drivers;
d. 49 CFR 395 - Hours of Service of Drivers;
e. 49 CFR 385 - Safety Fitness Procedures; and
f. 49 CFR 396.3 - Vehicle Inspection, Repair and Maintenance.
7. Review resources used by safety director(s).
a. Commercial Vehicle Preventable Accident Manual (Keller);
b. Trade journals and publications;
c. Best's Safety Director; and
d. Federal Motor Carrier Safety Regulations Handbook (Keller).
8. Obtain an aerial photograph of the accident scene if possible.
Websites such as Globexplorer.com; Google Earth and others allow you to get good to high quality aerial or satellite photographs of just about any location on earth, including roadways and intersections. These types of "bird's-eye" views can be very helpful in some cases.
9. Research the company and the witness.
a. Obtain "other lawsuit" information;
b. Troll for depositions of all company managers, officers, drivers and employees from other cases;
c. Talk to other lawyers who have sued the company/driver(s);
d. Google / Lexis-Nexis;
e. Company website;
f. Obtain depositions of experts who have testified against / in support of company; and
g. CV of the witness (and verify as much of the CV as possible.)
10. Have realistic goals for the deposition.
I find that I get better results in depositions when I have a very clear set of goals and objectives in mind. I believe that depositions are more efficient and effective if, beforehand, I prepare a list of admissions and concessions I want to get from the witness during the deposition and then plot strategies to get those admissions and concessions.
One way to stay on target is to prepare your verdict director jury instruction early in the case and use it as a roadmap. Determine what, if any, evidence the safety director can provide to support and substantiate the essential elements of the claim and the verdict director.
I seldom believe or find that an experienced safety director self-destructs during a deposition. I prepare as though he or she will be well-schooled and well-prepared. The approach to the well-prepared witness must be more organized and methodical to obtain helpful admissions and concessions.
CONCLUSION
Deposing the safety director is a significant and important aspect of discovery in a truck wreck case. A planned approach, thorough preparation, and realistic goals generally produce the best results.
