Heyl Royster

Preparing the Truck Driver for His Deposition

august 31, 2015

By: Heidi Agustsson, hagustsson@heylroyster.com

The deposition of a truck driver is an integral part of the litigation process. A recent article in the American Trial Lawyer noted that "the deposition of the professional truck driver in a truck crash is one of the most vitally important phases of the entire litigation. The outcome of this deposition is often the single most important aspect of the plaintiff's prosecution of any interstate trucking case."  As such, the driver's personality and appearance are reflections of the trucking company. Often the testimony offered by the driver sets the tone for the remainder of the case. It lays the foundation for affirmative defenses and possible settlement negotiations.

An attorney must help the driver understand the litigation process as a whole as well as why his deposition is so important to the case. Once that is established, the driver must learn the defense theme. With that understanding, the driver can answer questions in a way that demonstrates how the facts of the underlying case support that theme. With this in mind, the driver not only understands what he needs to accomplish with his testimony, but also recognizes when a line of questioning is leading him away from the theme.

The driver must be well prepared to discuss various documents in his deposition. He should have a good understanding of the Federal Motor Carrier Safety Act, driver handbook, training manuals, his qualification file, any post accident drug/alcohol results, his log books and service hours. Any good plaintiff's attorney will ask about these documents with the hope of painting the picture that the driver lacked knowledge concerning the rules that applied to him or that his company did not properly train him. He should also be familiar with the records produced in his production response, including any photographs taken of the scene and the vehicles involved.

The driver must know the lines of questioning he should expect and the reasons behind why those questions are asked. He should be prepared to discuss his personal and educational background. Many times opposing counsel use this as an opportunity to get the driver to let his guard down before moving on to more difficult questions. Likewise, opposing counsel use these answers to begin to assess the driver's credibility and jury appeal. In addition, a driver should be prepared to answer questions concerning his driving history, prior citations, prior accidents and employment history. A driver will need to be prepared to discuss his employment with the company at issue, including any background checks that were done by the company prior to his employment, any physical examinations he was required to undergo by the company, any drug testing done by the company before he started driving, whether he was required to complete a road test and/or was required to attend a driver's orientation and safety training. He should be ready to explain the 11 hour and 14 hour rule. Among other things, beyond the accident facts, he may also be asked to discuss his pre-trip inspection, weather conditions, DOT post crash inspection and any pre-accident findings, information downloaded from the ECM and his communications with dispatch after the accident.

Once the driver is prepared to answer questions concerning relevant documents and potential lines of questioning, the focus can shift to the players involved and atmosphere created during the deposition. If possible, opposing counsel's tactics should be discussed. For example, is plaintiff's counsel known for his/her aggressive style or will counsel offer a false sense of security causing the driver to later be caught off guard?  Likewise, it is important to discuss what a driver should wear to a deposition. Remember, a driver's credibility and jury appeal is being created at the deposition. This is especially true when a driver's deposition is being videotaped. The videotape may be shown to the jury at trial for various reasons. It is important to keep in mind that a driver's body language is just as important as his answers.

Working with a truck driver can be challenging, given the truck driver may live in a remote part of the country and may have moved to another company. Nevertheless, the time spent preparing the truck driver for his deposition is crucial to a successful defense. It may take more than a few meetings to allow the truck driver to become relaxed and understand the nature of the environment. Nevertheless, it is extremely gratifying to all involved when the driver is credible and testifies consistently with the theme of the case.

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