The battlefields of history are littered with losers who prepared to fight the prior war. Their failure to recognize and develop new strategies and tactics spelled their doom. We cannot follow this fate in trucking defense. We cannot wallow in the war stories of past glory while ignoring new means and methods of defending against actions. We must constantly look for new methods of proof. We must continuously consider and develop new means of persuasion. The following is a brief overview of some of the tactics we have successfully employed to the success of our clients. More information is provided in a 35 minute video that we would be glad to forward to you upon request.
1. VIDEO CAMERAS-Upon arrival at the accident scene, immediately check for video cameras-public or private. Sure, it’s a longshot that any are present or even longer that the accident was caught on film, but you must act immediately to have any chance of preserving any possible capturing of the accident on video. Video cameras can be both public and private. From municipal intersection cams to business security cameras, the myriad of possibilities constantly increases. A security camera outside a business captured the landing of the airliner on the Hudson River. Recently, a convenience store surveillance cam captured the accident and provided documentation of our driver’s version in an intersectional accident involving a police car. Lucky? Maybe. But isn’t luck the residue of preparation?
2. SELF SURVEILLANCE-Social media is today’s life stream. Younger generations live there. Even older generations engage it regularly. People constantly post their activities and photos. Those who do so before or after they assert a claim against our companies are handing us a gift. We cannot waste this resource of self surveillance. Act fast. Check available public sources immediately upon the accident, before it can be taken down. Download and preserve photos and videos. Then follow up regularly. You can often save the expense of iffy surveillance by capitalizing on their “self surveillance”.
3. EARLY SURVEILLANCE-If you do traditional surveillance, do it early, immediately after the accident. Frequently this is far more productive than later when claimants are warned by an attorney or guarded for the sake of litigation.
4. PUSH BACK-When the notice letter comes from plaintiff’s counsel, push back. Let them know they are in for a fight. This is not “hit-a-truck, get-a-check.” Fire back a letter enclosing medical and employment releases and requesting a list of providers and employers. Follow up in at least thirty days, reminding them of your prejudice due to their delay. Information does not flow just one way. Prejudice is not limited to the plaintiff. Push back immediately and set the tone for the long run.
5. PRE-LITIGATION MEDICAL AND VOCATIONAL EVALUATIONS-Request IME’s and vocational interviews early, even before suit is filed. For us, it is a no-lose proposition. If plaintiff agrees, you have early evaluation by your expert to rebut their claims. If they refuse, we have documented our attempt and their rejection, raising questions of their validity and motives. This combats the too frequent occurrence where plaintiffs delay for months or years while they build their case, one visit at a time, before filing suit. This removes the argument that initial claims of injury and disability must be justified as our experts never saw the plaintiff until much later.
6. SUE THEM FIRST-I can’t tell you how many cases we filed suit first to establish jurisdiction and take the initiative. When we sense that plaintiffs intend to sue in a “plaintiff friendly” jurisdiction, we look to file suit in the jurisdiction of the accident or residence of the plaintiff to recover property damage or cargo loss. If the case is one of arguable liability, this can keep the action where it will properly and fairly be located. Further, having responded rapidly to the accident, documented the scene, and statementized the witnesses, we can capitalize on our preparation bytaking and maintaining the initiative.
7. READ THE “PLAINTIFFS’ PLAYBOOKS”- Plaintiffs tactics and strategies are no secrets. They publish them in books and sell them to anyone. We spend significant money each year to purchase plaintiffs publications and cd’s of seminars. Take advantage. Buy and read their books. Learn their strategy. Prepare to respond.
8. DATA MINE-Undermine plaintiffs’ claims of “no prior similar injuries” by digging in the data. Request the identity of all prior medical insurers. Subpoena their files. These records can lead to prior treatment that plaintiff previously denied. Identify all pharmacies filling prescriptions for any reason. These can often reveal prescriptions that can again be traced to similar previous maladies. Alternatively, they can reveal abuse that may be admissible based upon their effect on life expectancy.
9. SEEK PUNISHMENT OF MISREPRENTATIONS Plaintiff’s misrepresentations can result in dismissal of their case and reimbursement of your attorney fees where significantly egregious. Our webpage contains a decision we received in such a case. Shortly before trial we uncovered misrepresentation by plaintiff as to her pre-accident condition resulting in the court’s dismissal of her case and assessment against her of our fees and costs.
10. CHALLENGE LIFE EXPECTANCY-Cases claiming permanent injury bring into issue the length of life expectancy. Use this as an opportunity to introduce evidence of plaintiff’s activities such as drug and alcohol abuse, other illnesses, or risk taking behavior. Use an actuary to quantify the effect of these items. In permanent or future lost wage cases, employ the same strategy. Also, verify citizenship. Check for records of criminal activity which could arguable undermines earnings if repeated in the future. We explain these in further detail in a 35 minute DVD. Email if you would like a copy. These are a few of the aggressive strategies that can come to bear on plaintiff’s claims. We must continue to look for new tactics to ratchet up the fight.