Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. Despite safety efforts, accidents are sometimes going to occur. Your exposure in related litigation may be extensive. Accordingly, it is crucial you have tools in place in the cab, and to train your drivers on how to do use them in the event of an accident.

Efforts should be made to preserve physical evidence, such as vehicle debris. If someone (e.g. police) removes such evidence, the driver should attempt to document where it was (e.g. through the use of photographs) and who took custody of it. Photographs in general can be crucial, and drivers should be trained in deciding what photos to take. One should take photos of all sides of the vehicles involved in the accident, debris, skid or yawl marks, etc. Moreover, photos should be taken from several angles and distances so that someone (e.g. an accident reconstructionist) can later determine measurements based upon them. Photographs of those injured in the accident should not be taken.

Statements may also be crucial, as they can later be used against the driver. Some companies advise drivers to cooperate fully in giving statements. Others have taken the position that drivers should decline to give any statements until their attorney arrives. It's important for the carrier to clearly communicate their policy to drivers in advance. Whenever statements are to be given, one should never provide estimates of time, speed, or distance. People are inherently bad at such estimates, and an innocent error can later be used to attack one's credibility, when objective evidence shows that the estimation was wrong.

Drivers should get full contact information of favorable witnesses. Similarly, do not do the plaintiffs' attorneys' job by doing so with unfavorable ones. Avoid admissions at the scene (e.g. "I'm sorry"), and document admissions made by others. If a potentially adverse party makes an admission, document any other witnesses who may have heard the admission, as the one making it may well later deny having done so. Include an "exoneration card" in your accident kit, as one may, albeit in rare instances, be able to get a potentially adverse party to sign it.

Steps should also be taken to download, and preserve, any data from any EOBR or ECM on the power unit. Finally, every motor carrier should establish its post-accident drug and alcohol testing policy and communicate that policy to all drivers. Some companies follow the DOT mandate, while others require testing in all accidents, or at least recordable ones. Whatever your policy is, the driver needs to know it so that he or she can follow it, as failing to do so may be interpreted as the driver having something to hide.

The window for acting at the scene, and the opportunity to preserve related evidence, is extremely limited. Companies need to carefully train their drivers on the proper procedures to follow in response to an accident, and have a 24/7 "Go Team" (internal safety representative, field adjuster, attorney, etc.) in place for each and every jurisdiction in which their drivers operate. Having a solid "game plan", and properly executing it following an accident, can go a long way toward being able to protect one's interests in related litigation.

The "Preservation of Evidence" Series

• Part 1 - At the Scene
• Part 2 - Field Adjuster
• Part 3 - Related Traffic Citations
• Part 4 - Repairs to Equipment Involved
• Part 5 - Internal Company Investigations

• Part 6 - Records Retention
• Part 7 - Electroncially Stored Information
• Part 8 - Dealing With the "Litigation Hold"
• Part 9 - The Impact of Failure to Preserve Evidence"

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