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Truck attorney tip 3: Compared to what?

Written by Steve Gursten Posted July 18th, 2014

Defense lawyers can’t allege comparative negligence and try to keep out evidence of the driver’s and company’s negligent acts

scorpion_and_the_frogWelcome to the third installment of our blog series on the most important topic in transportation law today – clever trucking defense attorneys attempting to admit “negligence” as a tactic to limit evidence of their client’s own negligence at trial.

The series started by  reviewing the 5 arguments you will likely hear from defense attorneys in serious truck cases. Whether you’re an experienced or  relatively new truck accident lawyer, this is an issue you will likely encounter. Lawyers for trucking companies often attempt to admit negligence and then move to bar all evidence of their own negligence and wrongdoing, whether that be negligent hiring, supervision, training, or the negligent entrustment to an unfit or medically disqualified driver.

You can’t have your cake and eat it too! Comparative fault requires something to compare to

Here’s our third legal tip for getting evidence of negligence admitted at trial: If your jurisdiction has adopted comparative fault (or even modified comparative fault), and if the defense has alleged your client is also negligent, then all evidence of the trucking company’s negligent acts must come into evidence.

Like the fable of the scorpion and the frog, many overly aggressive defense attorneys just can’t help themselves.  Even in cases of very clear negligence, they will still allege – and even argue – that your client was also somehow at fault for getting rear-ended.

But this must open the door to all the things the trucking company did wrong. This is a very simple legal argument:

If the jury has to compare fault, then it must compare all fault.

How can any jury measure and allocate percentages of fault among the different parties if they can’t measure what the trucking company did or failed to do in causing a crash? A jury must be allowed to hear all  evidence of negligence from the plaintiff and defendants if the defense attorney is alleging comparative negligence. How did the plaintiff’s alleged negligence compare to the violations of the state and Federal Motor Carrier Safety Regulations (FMCSRs) and other negligent acts that the trucking company or driver did or failed to do?

They can’t.

Most jurisdictions in the U.S. have moved to some form of comparative fault.  Your state will almost certainly say something along the lines of “the jury must assign fault to all parties, including plaintiffs, defendants, and third parties.”

This together with our other tip, using the Restatement of Agency, should help to stop the defense from sweeping negligent acts under the rug.

There’s still a lot to cover, and we’ll continue this series and sharing a few more legal tips. Making sure that all violations that led to a serious injury or death is a founding principle of the Truck Accident Attorneys Roundtable, a big reason why Joe Fried, Michael Leizerman, and I started the organization. We want to make our roads safer and we want to save lives.

Helping clever defense attorneys hide serial violations of state and federal law is not the way to make our roads more safe.


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About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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