In most personal injury matters, it is typically wise to conduct as much informal discovery as possible prior to filing suit. Informal discovery includes the collection of such things as police reports, witness statements, photos of the scene and so on. Formal discovery is what occurs once litigation is commenced (i.e. a lawsuit is filed). In trucking accident cases, informal discovery will have significant limits since the information needed outside the aforementioned informal discovery will be entirely under the possession and control of the defendant trucking company. Trucking companies behave much differently than the typical auto accident defendant. Bottom line is that they do not provide evidence without court action.
File Suit and Ask Questions Later
The advice that a trucking accident victim should file suit and ask questions later runs counter to the typical practice at Collins & Collins, P.C. which is to gather as much evidence as possible to evaluate a case to make sure that it is warranted prior to filing suit. Deviation from this practice in the case of trucking accidents is necessary and proper for a couple of reasons. First, the victim in a trucking accident will have no access to critical evidence. Second, New Mexico is a comparative negligence state. This means that the trucking company may be sued even if the driver and the company were only partially at fault. In trucking cases, the injuries if the victim survives at all, are generally catastrophic and permanent. Consequently, even after apportioning fault between the trucking company/driver, and the victim, compensation for injuries or death will still most likely justify the policy limits on any insurance policy carried by the trucking company.
Preservation Letter and Notice of Spoliation
In dealing with trucking companies, it is safe if not critical to assume that they will hide, destroy or “lose” evidence. To protect the victim, a letter demanding preservation of evidence upon penalty of spoliation should be sent out immediately after the accident. Immediately means immediately, not weeks later. This letter will put the trucking company on notice that they must preserve (save, store, protect…) all evidence and documents related to the accident. Failure to do so will result in spoliation sanctions by the court. Spoliation sanctions are very powerful in cases like this. In New Mexico, where evidence is lost or destroyed, all evidentiary matters related to that evidence will be found in favor of the victim. In other words, if the trucking company loses a document such as engine diagnostic data, it will be presumed that the lost document was very bad for the trucking company. The jury will be told this at trial.
Seek Legal Guidance
There are some cases where it is possible to effectively represent yourself in a case. These are typically limited to very simple, clear and small accidents such as auto accidents and, slip and fall accidents. Trucking accidents are not the type of case even the ablest, smartest, most studious folks would want to take on by themselves.
Trucking companies will not treat you fairly with or without an attorney. This is the case even when the driver would if he or she could. The difference is that an experienced attorney can force them to behave and force them to treat the victim or the surviving loved ones fairly.