Business Law Articles
By: Edgar M. Elliott IV, Esq.
Christian & Small LLP
In emergency situations, there are many things happening all at once – which means that there is a lot to keep up with and keep track of – and it’s nearly impossible for one person to handle it all. Attorneys can be very helpful in such circumstances, and many are trained and experienced to handle emergency transportation matters.
If a lawyer is present, the client will have privileges, such as attorney-client privilege and work-product privilege, that are not present with other on-site officials. Although it is not necessary for a lawyer to be present in anticipation of litigation or attorney-work product, having one there makes it more apparent and more easily defensible. If the truck driver involved in an accident is a client, all communications between him and the attorney are attorney/client communications that cannot be revealed. Thus, the lawyer should be the only one talking to the truck driver.
Having an experienced transportation lawyer at the scene, one who has tried cases to a conclusion, means that you are more certain to gather the evidence that will be needed at trial. There is a lot of evidence available at the scene or immediately after the accident that can disappear with time if not preserved. Having a lawyer on-site who is aware of what that evidence is, how to gather it, and how to preserve it is critical.
Here are some pre-accident, during accident and post-accident pieces of advice regarding how attorneys can be helpful in emergency situations.
Pre-Accident Considerations: Preparation for Emergency Response
Before problems arise, establish a claim “calling tree” or after-hours hotline for transportation clients/insureds. Provide these clients/insureds with contact information to notify attorneys/insurers of a claim. It’s also helpful to have a plan in place and a designated point person for handling claims once attorneys/insurers have been notified. This point person should have all necessary contact information: independent adjuster, investigator/accident reconstructionist, photographer (aerial, video, still, etc.), and criminal defense attorney name and contact information. It is also important to have a well-defined primary objective of response. You may also want to consider how to coordinate other communications – both incoming and out-going – with the media, authorities, etc. Keep in mind how these decisions may affect privilege issues as well.
Accident Scene Investigation
Once an accident has occurred and emergency response is in action, it’s important to document identity and contact information for all witnesses and obtain in-person statements. The identity and contact information for emergency medical technicians and law enforcement personnel should also be documented. Interviews are done with law enforcement, when possible. Attorneys should also identify and meet with all drivers and passengers involved by conducting detailed, non-recorded interviews.
There are a number of other things at the scene that should be investigated:
- Identify (obtain VIN numbers, if possible) and preserve all electronic control module (ECM)/on-board data recorders/dash cameras in all vehicles;
- Photograph and preserve vehicles;
- Photograph and preserve debris field;
- Photograph and preserve roadway (measure, mark and document tire/skid marks and other road conditions);
- Photograph and preserve the general scene around and including the accident itself;
- Preserve logs and all travel documents, such as trip envelopes, fuel receipts, tolls, etc.;
- Ensure compliance with regulatory requirements (such as drug testing);
- Identify and obtain contact information for all salvage/towing personnel and determine the destination of the vehicles;
- Review any cargo preservation and transportation considerations; and
- Review hazmat considerations.
Necessary Equipment and Tools for Responders
With so many important considerations and tasks that must be taken care of, there are also several important resources and tools needed. Business cards are helpful and easily distributed to those on the scene so that they know who the attorney is and his/her contact information. Witness information forms and a recording device are crucial to working with those involved in the accident, including witnesses and law enforcement. To properly document the scene, a flashlight is often helpful, and a camera with flash capability is one of the most valuable tools. For further investigations of the scene, a tape measure, skid mark roller or other measurement device, spray paint for marking and documenting resting positions, the debris field, the road surface, etc., small traffic cones for photographic documentation, and an up-to-date copy of the Federal Motor Carrier Safety Regulations (FMCSR) are all important tools as well.
All interested parties should be notified, including insurers and indemnitors, if this has not already been done through standard procedures. Any salvage or towing facilities that were involved are contacted, and ECM information, on-board data recordings, and dash camera recordings are preserved and downloaded. If at all possible, it’s helpful to coordinate this with opposing counsel in order to avoid spoliation issues.
There are also several things that need to be obtained after an accident, such as the accident report, records from EMT and other first responders, medical records, documents regarding mandatory drug testing, and other regulatory requirements. Personnel and employment factors to consider include disciplinary or remedial issues. Any cargo issues need to be addressed and handled as well.
It’s best when clients and insureds have knowledge of all these steps and considerations through an updated action plan. Regular training and periodic reviews for clients, insureds, and their drivers and employees on this action plan are also helpful in making sure all parties are aware of policies and procedures.
For more information about Christian & Small LLP, please visit the International Society of Primerus Law Firms.