Five Words & Phrases Defense Attorneys Should be Mindful of in Trucking Litigation
Many Americans can name one, two or even more Plaintiff personal injury attorneys in their area. This is no doubt due to the relentless onslaught of billboards, radio, and television ads seducing clients hurt by big bad trucking companies to contact them with promises of a big pay day down the road. Commercial motor vehicle traffic accidents are likewise seen as a payday for Plaintiff attorneys as well. This is because commercial motor vehicle traffic accidents are some of the most difficult cases to defend. When a Plaintiff’s attorney goes to trial against a trucking company, he is not just putting the trucking company named in the complaint on trial, he is putting the whole trucking industry on trial, and it is easy for them to do so due to the misused, misconstrued, and ambiguous language oftentimes associated with the trucking industry. This imprecise usage of language puts attorneys who defend trucking litigation at a clear disadvantage. To achieve equal footing, attorneys who defend commercial trucking clients should identify certain words and phrases that retort a Plaintiff’s theme that improperly places the entire transportation industry on trial.
“Fault” as a verb means “blame.” “Fault” as a noun means “mistake or defect.” In reaching a verdict, most jurors are not going to base their determinations on the legal definition of negligence, they are going to focus their determinations on who they think is at “fault”. To make matters more confusing, many lawyers and judges use the term “fault” interchangeably with liability. These word variations can be confusing, i.e. “It’s your ‘fault’ I’m so tired today, you shouldn’t have let me convince everyone to see the midnight showing of Avengers Endgame.” For many jurors, the term “fault” will be based off their everyday understanding of the word as illustrated in the previous example, rather than on a reasoned legal analysis. Once “fault” slips out of the mouth of the defendant company representative regarding preventability of an accident, it becomes an uphill battle explaining how preventability is not a liability determination. Therefore, when prepping any company representative to testify, it is important for the defense attorney to discuss and properly define the implications of using the word “fault”, and to instruct the representative to use the term very sparingly.
“Professional” is a term used with pride in the trucking industry and can be found in many company manuals and policies. However, this word can have many different meanings depending on the context used. Is the term “professional” limited to the act of driving the vehicle, or does it include all other aspects of being a commercial truck driver beyond just driving the vehicle? Context is important and defense attorneys must determine how the term is being used or Plaintiff attorneys will manipulate the word to their advantage. That could cause a jury to hold a “professional” truck driver to a much higher standard than ordinary and reasonable care. To avoid being unduly prejudiced by this heightened standard, defense attorneys must clarify that commercial truck drivers are not insurers of safety on the road, nor are they required to anticipate and avoid the negligence of other drivers. The jury must understand that the same standard for negligence applies to all parties, and one easy way to do that is to focus on the applicable jury instructions.
Contrary to popular belief, trucking companies are not required to “teach or train” their drivers how to drive a truck. Plaintiff attorneys will almost always assume the opposite—that trucking companies are required by law to “teach or train” their drivers how to drive a truck. In a trial setting, this commonly plays out through Plaintiff attorneys asking the safety director of the trucking company to agree that the company has a duty to “train” its drivers. This is an overbroad assumption. There is a duty to “train” in some respects, such as handling hazardous materials or loading/unloading contents—the non-driving aspects of the job. However, there is no duty to “teach or train” truck drivers defensive driving. The confusion stems from commercial trucking companies providing information on defensive driving to their drivers and the liberal use of the word “training” that is oftentimes intertwined in this information. “Training” means “to be taught through sustained practice and instruction.” Videos and manuals which many trucking companies provide their drivers hardly amount to training as they are not a sustained practice or instruction. These materials should be construed as general tips and advice, rather than formal training. Accordingly, trucking companies and defense attorneys should only use the terms “training and teaching” when referring to drills and practices intended to create habit (muscle memory) or when advising drivers in the correct, legal way to do something.
The words “policy, procedure and standard” are synonymous and interchanged frequently. Each word creates an expectation of behavior and describes terms under which someone will be measured. At virtually every deposition of a commercial truck driver or safety director, they are questioned in some way by Plaintiff’s counsel on the company’s “policy, procedure, or standard.” Plaintiff’s counsel’s primary goal is typically directed at creating a façade that commercial truck drivers are or should be held to a higher standard of care than that prescribed by law. The questions asked are typically designed to elicit the response that defensive driving is a “policy” of the trucking company. Defense attorneys should ensure that the terms are used in their true legal sense and not to allow Plaintiff’s counsel to misuse them. “Procedure” should only be used when there is truly a right way of doing something. For example, a commercial trucking company may have a “policy” that a tanker must be ventilated after every trip. The “procedure” to this policy would be how to ventilate the tanker. Corporate representatives are typically proud to reference their “policies and procedures”; however, they should be counseled to use these words only if they mean their literal definition, otherwise they risk inadvertently creating a higher standard of care for the commercial truck driver. The same applies to the term “standard”. Any defensive driving handbook or “standard”, even if it is the CDL Handbook, is just advice. It does not create a new standard of care. Defensive driving is something to aspire to, not a “standard”, despite being labeled as such. Accordingly, if a corporate representative must testify, Defense attorneys must ensure that the representative uses these terms correctly, while at the same time preventing Plaintiff’s counsel from mis-defining them.
Although this phrase will not often be found in any company manuals or materials, this phrase is commonly interjected into the litigation process by Plaintiff attorneys through their experts and are elicited from company representatives that are manipulated by Plaintiff’s counsel to improperly adopt the phrase as his or her own. Further, “red flag” is generally never defined for the jury which leaves it up to the themselves to define the term. Meriam-Webster defines “red flag” as “a warning signal or something that attracts an irritated reaction.” When reviewing driver qualification files, referring to any past infraction as a red flag will invite undue prejudice. Defense counsel should ensure that their witness does not adopt this phrase as their own or allow Plaintiff’s counsel to interject it into the case in any way.
Plaintiff attorneys have effectively commandeered the language of the trucking and safety industry. For this reason, it is important to be mindful of certain words and phrases that are being used as traps. While eliminating the use of some or all of these words is often not possible, it is possible to bring attention to them, and properly define and control them before Plaintiff attorneys get a chance to use them as ammunition.
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