by Steve Groth, Litigation Partner, Bose McKinney & Evans LLP
We have already started to see the blooming of daffodils. The next things to bloom will be potholes, followed quickly by construction zones. This is the time of year when normal routes may be disrupted by detours and lane changes to accommodate lane expansions, resurfacing, and other infrastructure improvements. Motor carriers and their drivers need to be especially vigilant in order to stay safe and avoid the ripple effect that follows from tickets and citations, not to mention the lost time and expenses caused by accidents. According to the Centers for Disease Control and Prevention, the Federal Highway Administration reports there were 24,745 fatalities due to crashes in construction zones from 1982 through 2014, which is an average of 750 per year. Speed is a major factor in many construction zone accidents, making it especially important to pay attention to reduced speed limits. Lack of seatbelt use is a factor in approximately 25% of these fatalities. Interestingly, fatal crashes occur more frequently on Tuesday, Wednesday, and Thursday than other days of the week, according to the Fatality Analysis Reporting System (FARS).
It is an unfortunate reality that any time there is an accident and a commercial vehicle is involved, or even in the vicinity, there is a good chance that the carrier will be dragged into any resulting claims or litigation, regardless of whether the commercial driver was at fault. On occasion, attempts are even made to bring in the broker and/or shipper. Plaintiffs’ lawyers frequently argue that commercial drivers are held to a higher standard, and that is the common perception of a large portion of the motoring public. In light of these realities, it becomes increasingly important for fleets to keep a sharp focus on safety. An excellent way to increase your fleet’s knowledge about safety, beyond encouraging drivers to pay attention on the road, is to participate in seminars and educational presentations. These can provide valuable knowledge regarding such things as FMCSA regulations and updates in technology that can improve the safety of any fleet. One great example is the Spring Transportation Summit of the Indiana Motor Truck Association coming up this April 24-25 in Indianapolis, Indiana. Details may be found at www.intrucking.org.
by Steve Groth, Litigation Partner, Bose McKinney & Evans LLP
The essential job of any attorney is problem solver. Sometimes that simply involves trying to help clients anticipate and avoid problems. More often, it involves advising clients on how to resolve existing problems. Occasionally, it is necessary for clients to make use of the court system to enforce their rights, but in many cases, there are alternative methods to resolve problems without using the court system—alternatives that are often faster and easier than litigation and that will almost always be less expensive. An attorney can help you decide what method is best for resolving your particular problem.
When you are faced with a serious problem, it is important to seek legal advice early. An attorney can help you to fully understand your legal rights and your options for preserving them. Your attorney may have seen similar situations before and may be able to offer strategies that have proven to be successful (or unsuccessful, which is also helpful info). He or she will likely have suggestions for strengthening your position and preserving evidence in case a lawsuit is necessary. Most importantly, the attorney can give you some idea of the costs and possible outcomes of litigation, so you can factor that information into your decision.
How do you know when it is necessary to lawyer up? Here are some things to consider in deciding whether you should seek advice from an attorney:
1. Evaluate what is at stake.
Some actions and transactions have important and/or long-term consequences, so it is worth making sure that they are handled correctly. Transactions that are routine or of a low value can probably be done on a handshake without much risk; however, transactions of a high value or involving important assets can present a risk if not handled correctly, so shortcuts should be avoided. Some situations, such as the poaching of customers in violation of a non-compete agreement, may require an immediate legal response to prevent irreparable harm. You should consider consulting an attorney any time you are facing a situation where the risks to you or your business are high.
2. Don’t be too eager to escalate.
Escalation includes making statements or ultimatums or taking actions that burn bridges and may make later concessions difficult. Escalation of a situation may feel good at the time, but it can easily backfire. Consider whether a dispute that seems to test your patience and principles may also be an opportunity to demonstrate your superior customer service and professionalism. Make sure you have exhausted business solutions that involve cooperation before escalating the dispute into a truly adversarial situation. Many clients, after being engaged in a lawsuit, have expressed regret that they did not try harder to work things out before resorting to the legal system. A lawyer can provide assistance to you in finding creative ways to diffuse or de-escalate a dispute.
3. Research your options.
If you are unable to resolve things cooperatively, there may be alternative measures available without resorting to litigation. Look for factors that influence the situation and other parties that might be in a position to assist, and see if they can provide you with additional leverage to steer toward an agreement. Looking for informal solutions lets you consider creative approaches that would not be part of a lawsuit.
4. Understand the limits of litigation.
You should always have realistic expectations of your case’s potential outcome before resorting to litigation. The court system can be slow and expensive. Ultimately, almost every lawsuit settles out of court through a compromise agreement, which means that neither side gets all of what it is seeking. In addition, unless there is a contractual provision or statute authorizing the recovery of attorney fees, each party to a lawsuit pays its own lawyer, which means even if one party wins at trial, each side will still have to pay its own attorney fees.
A lawyer can help you navigate all of these questions and issues, and can guide you toward the best possible outcome in your particular situation. It is very rewarding to help a client avoid a potential dispute, or turn a problem into a success. What an attorney really wants to do is help clients know their rights and options so they can make the best decisions, whether personally or professionally. As exciting as it is to win in the courtroom, it is almost as exciting to empower clients with advice that lets them handle the situation on their own. Almost.