DAMG

As winter approaches were are reminded of the approach of more hazardous driving conditions on the roadways. Here in Middle Tennessee it seems they are more severe since they tend to develop suddenly and do not appear to be sever or hazardous. I grew up in Upstate New York and learned to drive in the ice and snow. I remember taking my driving test in early December with snow piled on the side of the highway. It was obvious to slow down and take extra precautions. Tennessee is different. Black ice is rampant. Fog and 32 degrees creates such a condition. Snow often is light and does not seem to stick, yet it can cause bridges and overpasses to freeze before the roadway. I have handled tractor trailer crashes in these conditions and thus am familiar with the rules applicable to professional drivers.

The Federal Motor Carrier Safety Administration oversees the operation of tractor trailers and buses on Interstate highways. Its motto is:

“The Federal Motor Carrier Safety Administration (FMCSA) is focused on reducing crashes, injuries, and fatalities involving large trucks and buses.”

To achieve this goal it has adopted numerous regulations all enacted to safe guard the public. When a lawyer takes a case involving a wreck involving a tractor trailer or bus he first looks to those regulations to determine the duty or standards that both the driver and owner are to keep. Yet they also are an excellent guideline for the driving public at large. What do the regulations say?

Hazardous conditions has its own set of rules. Section 392.14 states

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Professional tractor trailer drivers are to exercise EXTREME CAUTION in those conditions. A tractor trailer wreck is not just a big car wreck. These special rules apply for the protection of the public. The public can also benefit by following the same rules.

Here are some factors and good points to look for and question your attorney about. Note that not every attorney will meet all of these criteria, but the significant absence of the following should be a big question mark.

• Experience – obviously, the longer you have been practicing a particular area of the law, the more you will know. Experience is a big factor in most cases.

• Experience actually trying or mediating cases – ask the attorney how many cases he has actually tried or mediated. When was the last time he was in court for any matter? Has he or she achieved any significant verdicts or settlements? Does he have a list of verdicts and settlements available that you can look at? Don’t accept the “All my cases are confidential” line! Has he ever appeared before the Court of Appeals or the Tennessee Supreme Court? The greater your number of cases actually tried or mediated and substantial verdicts and settlements achieved, the more likely the insurance companies will respect you. If he has appeared before the Court of Appeals or Supreme Court that is an indication that he will “really” fight for you. Past results are not a guarantee of the future but past results do demonstrate some level of experience and success.

• Respect in the legal community-does the attorney teach other lawyers in Continuing Legal Education courses?

• Continuing Legal Education-The Tennessee Supreme Court requires every lawyer in Tennessee to take a minimum of 15 hours of CLE each year. Ask how many hours the lawyer took last year. What subject matters were covered? Even the most experienced lawyers need CLE to keep current. I have found that the best and highly respected lawyers nationwide attend more CLE than they are required just to learn, get better, and network with other lawyers specializing in the same areas of the law.

• Membership in Trial Lawyer Associations. In our area, you can certainly find a lawyer who is a member of the Tennessee Association for Justice (TAJ), or American Association for Justice (AAJ). These organizations provide extensive education and networking for trial lawyers representing injured individuals.

• Publications-has your attorney written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.

Ask the attorney if he or she is licensed in the state where your case will be filed. We believe that an attorney who is not licensed in the state where the case will be filed is at a disadvantage when it comes to negotiating with the insurance company. The insurance companies know who is not licensed and thus cannot actually try the case. We also recently ran across a horror story involving an out-of-state attorney who evaluated a Tennessee tractor trailer case. This attorney kept the file for over one year and gave it back to the client after the the statute of limitations expired in Tennessee. The problem was that the attorney told the client that he had one more year to file his case, but this was based on the statute of limitations in his own state. The client was then unable to file his case in Tennessee.

Lastly, will the attorney you are meeting with personally handle your case?