The phone rang at 2 am. Jim answered the phone and heard his Safety Director's voice. "We've had a bad accident," Jack said. "What happened?" asked Jim, as he suddenly was very awake. "It appears we had a rear-ender," Jack replied, "So far it looks like we have a fatality and a serious injury. We are downloading the ECM. "That's terrible," Jim said, "Is the driver hurt?" "The driver is ok," Jack responded, "But, he is very shook up. He couldn't stop crying and telling the officer how sorry he was. I don't think he'll ever be able to drive again. He's going to the hospital for the standard drug and alcohol test. It happened in a construction zone. We have investigators on the way to the accident. We are arranging a counselor for the driver. We'll know more in a few days. I thought you would want to know." "Thanks for letting me know," said Jim. He didn't sleep anymore that night.

About a week later, Jack gave his report. "The driver said he had slowed down to the speed limit in a construction zone when a lady suddenly cut in front of him and he was too heavy to stop in time at 50 mph." The ECM data we pulled off the computer supports our driver's story. People just don't know that trucks can't stop quickly like cars. But this looks bad. We rear-ended her car. The lady was killed instantly. Her young 6 year old son was severely injured with brain damage and paralysis. He will need 24 hour care for the rest of his life." This was the part of trucking Jim hated. "This looks like it wasn't our fault, but this is tragic. Can't we do something?" Jim asked. "The lawyers advise that we shouldn't send flowers or go to the funeral," Jack replied. "They say it would look bad."

It was a snowy winter's day four years later. Jim parked his car in the parking garage, went downstairs and braced against the wind as he crossed the street to the lawyer's office. Perhaps after all the time spent responding to written discovery and depositions, today would be the day he could put this tragic episode behind him and get on with business. He entered the marble foyer of the skyscraper, went to the brass elevators, and pushed the button to the top floor. He exited the elevator and walked in to an ornate office. He gave his card to the receptionist and she ushered Jim to a conference room where his attorney and a representative from the insurance company sat having coffee.

After the Mediator introduced himself and explained the process they were ushered into a conference room, richly decorated with heavy wood, leather chairs and expensive art. "I was a judge for 30 years and watched a lot of jury trials," said the Mediator. "I always interviewed jurors after a trial. I was always amazed that they often reached conclusions that even the attorneys didn't suspect. Let's start with each side giving a preview of their case, and then we'll get down to negotiations. The trial is set for Monday. If we stick with our mediation and work in good faith, perhaps we can give each side some certainty and resolve this today. I am committed to staying as long as it takes."

The attorney for the plaintiff started first. Jim recognized him from his advertisements on television. He was tall, charismatic and in his expensive suit looked like a TV preacher with his perfectly combed gray hair. "This case is simple and tragic," he started. He paused and looked around the table until his eyes landed on Jim. "You killed this poor boy's mother and left him permanently injured and in need of 24 hour nursing care for the rest of his life. Why? To save a buck!" he snarled, "I'll show you this boy's life without his mother." He showed a Day in the Life film. The video was expertly edited and showed the boy's daily struggles in the most gruesome detail. It almost unbearable to watch and went on for two hours. The boy was confined to a wheel chair, couldn't feed himself or take himself to the bathroom. Jim was just horrified as he watched the film. The attorney then described in grizzly detail each of the numerous operations the boy had been through. Jim's attorney knew the effect this would have on a jury.

After this very uncomfortable episode, Jim's attorney proceeded to lay out, in logical detail what had caused the wreck. He concluded, "This is a tragic accident, and we feel pity for the loss this young man has suffered. But, there is no question that the accident was caused not by my client's driver, but by the carelessness of the decedent in pulling suddenly in front of a moving and loaded 18 wheeler in a construction zone. There is absolutely nothing the truck driver could have done to prevent the accident once she pulled in front of him and stopped suddenly. He went on to explain that computer experts had analyzed the on board computers from both the truck and the automobile. They watched a video reconstructing the accident and a video deposition of the expert who explained how under the laws of physics, there was absolutely nothing the truck driver could have done to prevent the collision.

"Pity?" The plaintiff's attorney suddenly jumped up and slammed his fist on the table. "I didn't see any flowers, sympathy cards or anyone at the funeral! There were no visits to the hospital! If you call sending investigators immediately to such a tragedy, you sure define "pity" differently than I do. You," he snarled pointing his finger at Jim, "You knew this driver had a rear ender accident five years ago, and yet you hired him anyway. In order to save money, you didn't screen your drivers for sleep apnea and this driver, with a body mass index of 39, is a prime candidate. His CSA score shows he was one of your worst scoring drivers for 'unsafe' and 'fatigued' driving, and yet you kept him behind the wheel, and didn't place him on electronic logs. And he is not the only one…you have alerts in three of the 7 CSA categories, including 'fatigued driving' and 'unsafe driving.' This, Sir, is how you do business on the roads you share with folks like my client, who did nothing wrong but sit in a car next to his mother who will never take care of him or read him a bedtime story again.  We looked at your computer records. This was a dedicated route. You expected this driver to wait to be loaded and drive 625 miles through Chicago rush hour traffic, and arrive on time every single week within 11 hours? This was not a question of 'if' such a tragedy would occur but a question of 'when.' Sir," he glowered, "this is the most egregious case of negligently, and maliciously, hiring bad drivers, retaining bad drivers and forcing them to run illegal, I have ever seen! And this poor boy has to suffer for the rest of his life. Why? So you could save a little money!"

Later, Jim sat stunned in a separate office with his attorney and the insurance representative. The Mediator had just informed them of the other side's demand… 30 million dollars! The insurance representative has started the negotiations by offering the $1 million policy limits. The Mediator told them that the other attorney was insulted and wanted to call off the mediation. The actual costs for the boy's lifetime care were $12 million. They also wanted $5 million for the wrongful death of the mother and $13 million in punitive damages for negligent hiring and retention. "There's no telling what a jury would do," said the mediator. "You could win the case, but Cook County juries are notorious for coming in with high verdicts. They came in with a $40 million verdict last month." "Give me a minute to talk with my client," Jim's attorney responded.

© 2011, Tom B. Kretsinger, Jr.