XVI. Deposing the Truck Driver & Safety Director

We have taken the transcripts for all of our truck driver and safety director depositions and placed them on a password-protected portal at www.frg-law.com/portal. Preparation is the key to taking a good deposition. You have to start the process by making sure you have obtained all the necessary documents from the trucking company. Then you have to sit down and analyze these documents and information to determine what issues you have in your case. Does your case involve an issue with driver’s logs and hours of service? Does your driver have a bad driving history? Has the trucking company been monitoring its drivers appropriately? Your approach will be different depending on the answers to these kinds of questions and the specific issues in your case. A large part of the magic of being a trucking attorney is seeing and identifying these issues and putting together an approach for each one of them. However, there are some basic theories and questions that you will explore in every deposition. Those basic questions are discussed below.

A. The Truck Driver

Always depose the truck driver before the safety director. The questions that you will ask of the safety director will change depending on the testimony of the truck driver. If you take the depositions out of order, you will inevitably miss out on several questions for the safety director that only become applicable because of the truck driver’s testimony. The focus of any truck driver deposition is the rules. The rules normally come from the CDL manual and from safety guides put out by the trucking company or the FMCSA. After you have obtained testimony from the truck driver as to how the accident occurred, you should question the driver as to the rules that are applicable to the specific scenario that confronted him. What are the rules in the CDL manual specific to this scenario? What does a safety conscious truck driver do in this scenario? If you fail to follow these rules, do you place everyone on the roadway at risk? Once you have locked the truck driver into agreeing with the rules applicable to his conduct, you only need to prove that the contrary occurred in your case to show that he was negligent.

In addition to the general rules based approach about his conduct, you will also need to cross-examine the truck driver about other areas of potential rules violations including:

1. Texting while driving;
2. Cellphone use while driving;
3. Use of on-board messaging systems while driving;
4. Internet and TV use while driving;
5. Documents that can prove the driver’s whereabouts;
6. Medical issues;
7. Post-accident drug & alcohol testing;
8. Information on driver’s application;
9. Prior accidents and moving violations;
10. Issues with prior employers;
11. Criminal history;
12. Accident review;
13. Discipline history;
14. Dispatch procedures;
15. Paperwork and computer entries.

These areas of inquiry can lead to the discovery of problems with the driver that were not readily apparent from reviewing the documents produced by the trucking company.

B. The Safety Director

You should send a notice for deposition for certain areas of inquiry from a corporate representative of the trucking company. These areas of inquiry should reflect the specific issues in your case but should always include (1) safe driving practices and procedures; (2) policies and procedures concerning safe driving practices; (3) compliance with state and federal regulations; (4) investigation into the accident; and (5) documents produced by the trucking company. Normally, the safety director is designated as the corporate representative on these issues.

The safety director deposition will consist of two general areas of questioning: (1) the rules applicable to the driver’s conduct and (2) red flags that were missed by the company in regards to the driver. Similar to the truck driver deposition, you must establish the rules for the driver’s conduct with the safety director. Not surprisingly, the safety director and the truck driver often have a different understanding of what rules are applicable. Since you have the specific testimony of the truck driver already on record, you can ask the safety director questions about whether the specific actions taken by the truck driver are dangerous or if they comply with the applicable rules. Many times the safety director will become your expert as he or she has to admit that what the truck driver did in a specific circumstance does not comply with the rules applicable to his conduct.

You will also want to explore any red flags about the truck driver that were missed by the trucking company. The defense wants the case to be about what happened in the seconds before the collision where the truck driver was faced with an emergency situation and simply made an error in judgment. From the plaintiff’s side, you want to show that the errors were made by the trucking company days, weeks or months before the collision when they missed the red flags that could have prevented this accident from ever occurring. The real cause of the accident is the trucking company’s failure to keep a watchful eye over its drivers and to look for red flags related to the driver’s history and qualifications, his pattern of driving over hours of service, drug or alcohol use, driver distractions or other dangerous conduct.

Most companies perform a preventability analysis whenever there is an accident involving one of its drivers. It is important to ask the safety director about the preventability analysis. The analysis is designed to examine if the driver violated the company’s policies and procedures or industry standards in order to determine if the accident could have been prevented. If the accident is deemed preventable, then the company will charge the driver with a violation that will result in some type of disciplinary procedure. If the accident is not preventable, then the driver did nothing wrong, and it is not held against him. The result of the preventability analysis is usually not admissible at trial because it is deemed a subsequent remedial measure. However, testimony and documents related to a preventability analysis are always discoverable.

The reason that the courts allow an inquiry into a preventability analysis is that information related to the preventability analysis may be relevant to the case against the company. In addition, if the company takes a position that is contrary to the findings contained in the preventability analysis, the documents will become admissible for the purposes of impeachment. You should always request and obtain copies of all documents related to the preventability analysis of the accident by the company and question the safety director about the investigation and the findings related to the analysis.

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