1. CRITICAL FIRST STEPS TO INVESTIGATING A TRUCKING ACCIDENT Timothy Whiting Whiting Law Group One East Wacker Drive, Ste 2300 Chicago, IL 60601 twhiting@wlglaw.net

2. Critical First Steps to Investigating a Truck Accident 1. Preparing Before the Case Arrives 2. Preserving the Vehicles 3. Inspecting the Scene and the Vehicles 4. Talking to Anyone and Everyone 5. Obtaining Critical Documents

3. Step One: Preparing Before the Case Arrives A. Have a Truck Investigation Team Ready o Your truck investigation team should include: o Truck Accident Investigator; o Truck Mechanic; o Commercial Driving Safety Expert; o Accident Reconstructionist; and o Professional Photographer/Videographer o Practical Pointer: Having strong and trusting relationships with your experts allows you to have them available as soon as you call them.

4. Step One: Preparing Before the Case Arrives, cont. B. Familiarize yourself with the FMCSRs and Your State’s CDL Manuals o The FMCSRs and the CDL manual are two key sources for the “Rules of the Road” in trucking cases. o This will allow you to identify key evidence and violations. o Example: Weather Case o Speed Limit: 55mph for trucks o ECM Data: truck travelling 55 mph o Illinois CDL Rule: Reduce Speed by 1/3 o FMCSR: Drive with extreme caution

5. Step One: Preparing Before the Case Arrives, cont. C. Perfect Your Spoliation Letter o The spoliation letter will put the parties on notice of what evidence they must preserve and if they destroy any evidence, you can sue for destruction. o A spoliation letter should be sent via certified mail and/or personal service on the driver, the motor carrier, the insured, the lessee and/or lessor of the tractor-trailer, shipper, and/or broker and any other party that may potentially be liable. o Practical Pointer: Avoid using “any and all” or “including but not limited to.”

6. Step One: Preparing Before the Case Arrives, cont. C. Perfect your Spoliation Letter, Cont. The following items should be included in your spoliation letter: The tractor and trailer; The driver’s cell phone; The driver daily logs for six months prior to the crash; The vehicle records (i.e. titles, leases, insurance, and inspection and maintenance files); The driver trip receipts/envelopes, settlement sheets, and fuel receipts,

7. Step One: Preparing Before the Case Arrives, cont. The Bill of Lading for the load; The driver compensation records; The driver qualification file; The company policies, procedures, and records for safety training, discipline, drug and alcohol testing, dispatch, operations, vehicle maintenance, and inspections; The electronic data for the vehicle (i.e. ECM, dash cam, satellite, GPS, etc.); The electronically stored data (i.e. company computers, cell phones, etc.); and The investigation documents (i.e. videos, photographs, witness statements, etc.)

8. Step One: Preparing Before the Case Arrives, cont. D. Perfect Your FOIA Letter: FOIA letters should be sent to the FMCSA and national, state, and local investigative entities. FOIA requests to the FMCSA must request the following: a) All documents relating to the subject accident; b) All roadside vehicle inspection reports; c) All compliance reviews; and d) All out of-service violations.

9. Step One: Preparing Before the Case Arrives, cont. Example of FOIA Request to Cook County Sheriff’s Office:

10. Step One: Preparing Before the Case Arrives, cont. D. Perfect Your FOIA Letter Cont.: Your FOIA letter to the FMCSA should include the following items: o A copy of all non-privileged records regarding the above referenced motor carrier, including, the complete company safety profile; o All licenses and permits granted to the subject motor carrier; o All records related to compliance reviews and/or safety audits, including all inspection reports and out of service orders; o Each citation and disposition for the subject motor carrier; o All records relating to each intervention and disciplinary action including all fines and sanctions attributed to each action; o All records relating to policies of insurance (including self-insurance), surety bonds, endorsements or other financial responsibility pursuant to 49 CFR 387.7;

11. Step One: Preparing Before the Case Arrives, cont. o All filings by the subject motor carrier in an effort to correct any database information; o Records on specific motor carriers or specific motor carrier files, which include: enforcement reports, compliance reviews, roadside driver/ vehicle inspection reports, state accident reports, and general correspondence; o Copies of final orders of the agency; o Any and all final opinions and orders made in adjudication of cases involving the subject parties and issued by the FMCSA; o SMS/CSA Company Safety Profile and carrier snapshot for two years before the collision. o All records relating to policies of insurance (including self-insurance), surety bonds, endorsements or other financial responsibility pursuant to 49 CFR 387.7 for the subject motor carrier including, but not limited to forms: MCS 82, MCS 90, MCS-150, MCS 150(B), OP1, OP1(FF), OP1(MX), OP1(P) and OP12;

12. Step One: Preparing Before the Case Arrives, cont. OP- 1 Form  Before beginning interstate operations, all authorized motor carriers and brokers must obtain operating authority by submitting the OP-1 Forms.  Applicant has access to and is familiar with all applicable U.S. DOT regulations relating to the safe operation of commercial vehicles and the safe transportation of hazardous materials and it will comply with these regulations. At it minimum it: 1. Has in place a system and individual responsible for ensuring overall compliance with the FMCSRs 2. Has in place a driver safety training program 3. Familiar with Regulations governing driver qualification – has in place a system for overseeing qualification requirements (§ 391) 4. Has in place policies/procedures consistent with FMCSRs governing driving and operational safety of motor vehicles including hours of service and vehicle inspection, repair, and maintenance (§ 392, § 395, § 396). 5. Has system for complying with alcohol and drug regulations (§ 382 and Part 40).

13. Step One: Preparing Before the Case Arrives, cont. MCS-150 Form This is the application for a U.S. DOT Number. At the end of the application, the safety director or owner signs the following: Declaration Statement: “I __________ certify that I am familiar with the Federal Motor Carrier Safety Regulations and/or Federal Hazardous Materials Regulations. Under the penalties of perjury, I declare that the information entered on this report is, to the best of my knowledge and belief, true, correct, and complete.”

14. Step Two: Preserving the Vehicles We recommend immediately filing suit and after giving notice to all parties, file an emergency motion for preservation and inspection of the vehicles and all of the contents;  Illinois Supreme Court Rule 201(c)(1)  California Civil Code 47(b) Immediately after the court grants your order of protection, schedule an inspection as soon as possible with your experts for the scene and all vehicles involved;

15. Step Three: Inspecting the Scene and the Vehicles Inspecting the Scene: When at the scene, immediately determine if any surveillance cameras filmed the crash scene; Drive and/or walk the entire scene and get a feel for the road conditions; View, photograph, and/or video the road from the angle your client and the defendants viewed the road at the time of the collision;

16. Step Three: Inspecting the Scene and the Vehicles, cont. Inspecting the Scene, Cont.: Inspect the roadway for debris, skid marks, surface conditions, curves, hills, gouge markings, and any surrounding road damage; Determine all environmental factors that would have been relevant such as wind tunnels, snow, ice, or blowing dust that may have affected the driver and/or your client; and Have your investigators and experts take photographs, video and measurements of the scene.

17. Step Three: Inspecting the Scene and the Vehicles, cont. Inspecting the Tractor and Trailer: Always examine and have your expert photograph and video the inside and outside the tractor and each compartment and component;

18. Step Three: Inspecting the Scene and the Vehicles, cont. Inspecting the Tractor and Trailer, Cont: Have your expert take photographs and video of all electronic systems inside and outside of the tractor and trailer.  Example: Trailer light hook up Consider having your expert conduct a 3D image scan of your tractor and trailer. Have your expert download all the ECM from the truck. Practical Pointer: Obtain and make and model of the truck prior to the inspection as it may require special manufacturer equipment to perform the download

19. Step Three: Inspecting the Scene and the Vehicles, cont. Inspecting your Client’s Vehicle: Ideally, your client’s vehicle inspection will take place at the same time as the tractor and trailer inspection. It is important to photograph and download any electronic data from your client’s vehicle before the vehicle is repaired or destroyed.

20. Step Four: Talking to Anyone and Everyone It is important to immediately speak with: Responding officers; Investigating officers; Tow truck drivers; First responders; Firemen; EMS workers; Ambulance drivers;

21. Step Four: Talking to Anyone and Everyone, Cont. Lifeline personnel; Hospital nurses and doctors; Coroners; Eyewitnesses; Media including photographers, reporters, and cameramen The at-fault truck driver (including past employers); and Victim’s family and friends

22. Step Five: Obtaining Critical Documents It is important to obtain the following critical documents: All police investigative reports and motorist reports; Surveillance videos; 911 call in logs, records and audio tapes; Investigating officer’s file including officers’ notes; Officers’ cell phone camera photographs; Officers’ dash cam video;

23. Step Five: Obtaining Critical Documents, Cont. Prosecutor’s file with any criminal/traffic charges (attend and record all hearings); Criminal/Traffic trial transcripts; Certified copy of any guilty findings; and State commercial motor vehicle inspectors’ reports; Accident reconstruction records including raw data; Witness Statements taken by the police if recorded request the audio and/or video;

24. Step Five: Obtaining Critical Documents, cont. Photographs, video, and broadcasts completed by the media and newspaper reporters;  Email Cholly Hayes at tvnewswatchers@live.com. He offers a service that obtains all local news broadcasts.tvnewswatchers@live.com Total station digital files;  Obtain from the Police Agency who administered the reconstruction and/or the police report As-built plans for road elevations and dimensions;  Obtain from your states’ Department of Transportation Post-crash inspections by the DOT (see FOIA); Autopsy report (if applicable); The motor carrier’s website the day you are retained; and  (http://www.httrack.com)http://www.httrack.com National Transportation Safety Board records (see example)

25. Step Five: Obtaining Critical Documents, cont.