Blaming the Victim — How Trucking Company Defense Attorneys Make Their Living
Over four decades of litigating commercial truck accident cases, one of the most unpleasant parts of the job are the times when I must tell people with serious injuries in a commercial vehicle crash that the facts of their crash are not on their side. To my knowledge, I have never litigated against a trucking company defense attorney who told their client that their driver caused the crash and there was nothing he could do to help them.
Why do attorneys who represent victims sometimes have to give motorists injured in truck accidents bad news, but the defense attorneys we litigate against never have to do the same for their clients? The answer is because lawyers who represent trucking companies have an ace up their sleeve, they can always try to blame the victim. This isn't speculation, but reality for victims of commercial truck accident crashes.
These are the three main ways that trucking company defense attorneys attempt to blame the victim for their crash. They can —:
- Argue that the victim, not the commercial vehicle driver caused the crash
- Dispute the seriousness of the victim's losses
- Portray the victim as a bad or unsympathetic person
Each of theses strategies relies on the fact that the only entity that can hold a truck driver or their employer accountable for a crash is a jury. Since juries are made up of regular people, defense attorneys know that if they throw enough spaghetti at a jury, one of those noodles might stick. Now, let's take a closer look at each victim-blaming strategy.
Argue that the Victim, Not the Truck Driver Caused the Crash
Most people believe that the police report determines who is to blame for a crash and that its findings are final. That's not true. As mentioned before, only a jury can make a final determination of fault. Until a jury pronounces a verdict in a case, the trucking company is within its rights to claim that its driver didn't cause the crash.
Even in crashes where it appears obvious that the truck driver caused a wreck, it costs defense attorneys nothing to look for reasons to blame a victim for the crash. Let's look at a hypothetical crash scenario to see how this works in practice.
Suppose you're driving to work, when traffic begins to slow down. Naturally, you brake for the slowing traffic ahead, but the 18-wheeler behind you doesn't react in time and slams into the back of your vehicle. At highway speed, the 18-wheeler will destroy your car, and likely seriously injure you in the process. From your perspective, you were driving along, minding your own business, when another driver failed to control speed and smashed into you. How could this crash possibly be your fault?
In the hands of a skilled defense attorney, this fact pattern isn't as hopeless for the trucker who hit you as it initially appears. The go-to excuse whenever a trucker rear-ends another driver is that the driver the trucker hit cut off the truck. Do you have witnesses or evidence that you didn't change lanes? Many times people don't. This puts you in a position where even though you didn't cut the trucker off, you don't have the evidence you need to refute the accusation.
Let's say that you have witnesses who can testify that you didn't change lanes. In that case the defense attorney might suggest that your brake lights weren't working, so trucker lost valuable time he needed to avoid striking your car. This is a particularly insidious argument because the collision probably destroyed the back-end of your car, including the brake lights. Will a jury buy this argument? Properly rebutted, it's unlikely to impress a jury, but it costs the defense attorney nothing to try to see if they get any traction with it.
Another possible avenue of attack involves your cell phone usage. Everyone knows someone who uses their phones improperly behind the wheel. That's why defense attorneys frequently suggest that you slammed on the brakes suddenly, because you were on your phone. They're betting that you don't have the expertise and technical skill to obtain the cell phone data necessary to refute this accusation.
Destroying good claims is the goal of blaming victims for crashes they didn't cause. For trucking company defense attorneys, that's just one part of the job. Even if they can't blame you for causing the crash, they have other ways to accomplish the same goal.
Disputing the Seriousness of the Victim's Injuries (a.k.a. "You're Faking Your Losses")
From a trucking company defense attorney's perspective, whether or not their driver caused the crash is actually a secondary concern. Their goal is to minimize the portion of losses that their client is responsible for. So, if you were to offer the trucking company a deal, where they admit they caused a crash, issue a sincere apology, and you release them from all liability for the injuries you sustained in the crash, they would take it in an instant.
Even if the none of the defense attorney's efforts to blame you for causing your crash pan out, the trucking company and their insurer still win, if they can diminish the value of your losses. Defense attorneys have many possible ways to accomplish this task, but I'll stick to the main tactics.
The most tempting target for defense attorneys is to exploit any gap in treatment. Many victims get initial emergency care, then face the burden of scheduling follow-up treatment. If not done properly, follow-up treatment may not begin as quick as it should. This is what is known as a gap in treatment. Whether it's due to an inability for severely injured people to manage their own care or because of a lack of insurance, treatment gaps create problems for victims. When treatment lapses, it gives defense attorneys a window to argue that the follow-up care you received didn't stem from the crash, but from an injury sustained in a separate incident after the crash.
Even without a gap in treatment, the defense attorney will scrutinize every bill and procedure, nit-picking whether some treatments were medically necessary for your recovery. If they can prove that an x-ray or an MRI wasn't really necessary, then their client isn't on the hook for that treatment. Most victims are shocked to find out how little care trucking companies view as "medically necessary."
One other common technique is to scour your entire medical history for pre-existing conditions. For instance, if you tore a rotator cuff playing sports in high school, recovered, then re-aggravated the injury in your wreck, the defense attorney will likely argue that your original injury never properly healed and that the wreck isn't the real cause of that damage.
If all else fails, a defense attorney can simply accuse you of faking aspects of your injuries. This may sound absurd, but remember, these arguments are meant for a jury. Most people have a natural suspicion of others and fear that someone they don't know is trying to take advantage of them. If they can marry this line of attack with insinuations that you're a dishonest person, even a ridiculous accusation can gain traction in jurors' minds.
The point is that if a defense attorney can't blame you for causing your crash, they'll shift to blaming you for your injuries. These are just some of the tools available to a skilled defense attorney to prevent you from holding their client accountable for careless actions.
Trucking Company Defense Attorneys Will Attempt to Make You Look Like the Bad Guy
In passing, I mentioned that trucking company defense attorneys will try to paint you as a dishonest person. Let's spend a bit more time talking about how that works.
Whether you realize it or not, from the moment a commercial vehicle crashes into you, you are under investigation. Defense attorneys will run a background check on you; conduct deep dives into your social media history; and even go so far as to hire private investigators to interview old romantic partners, business associates, and people who know you socially. They do this looking for information that paints you in a negative light.
Digging up dirt serves two purposes, both relating to how a jury will look at you. First, a jury's natural inclination is the punish bad people and reward the good. If they can convince a jury that you're a bad person, then there's a realistic chance the jury won't punish their client as harshly as they otherwise would. Secondly, juries weigh evidence based upon how credible it appears. There are no hard and fast guidelines for them to use. Since any conflict involves at least two people telling them their version of an event, it's important for a jury to believe you. If a defense attorney can paint you as a liar, these makes you less believable in a jury's eyes.
Most people believe they have nothing to hide. Let me give you just one example, from a case that I handled, to illustrate that anyone can be made to look like a liar. Some time ago, I represented a widow who lost her husband to another's carelessness. The defense attorney found a social media post where the woman replied to her husband's post with "I hate you." The defense attorney attempted to have this admitted into court as evidence that the couple's relationship was on the rocks, and that the widow lied about the significance of her loss, because losing someone you hate isn't nearly as devastating as losing the love of your life.
Here's the rest of the story. The couple had been happily married for years. Like many couples, they regularly teased and joked with one another. The "I hate you" response was directed towards an inside joke that the husband had made to his wife. In other words, the remark showed just how close the couple was, the complete opposite of how the defense attorney tried to portray it. I was able to convince the court to keep a jury from ever hearing about this misleading "evidence" and prevented it from potentially hurting my client. Its clear the depths some defense attorneys will sink to, in order to torpedo a victim's claim.
My point is that defense attorneys don't actually need you to be a bad person to try to paint you in a negative light. They consider it to be just part of the job.
Defense Attorney Make a Living Blaming Victims
Some of these strategies may strike you as absurd or under-handed, but defense attorneys are literally paid to blame you for your situation. The harsh reality for victims is that they need the ability to fend off each and every attack that a defense attorney throws their way, while the defense attorney only needs one line of attack to stick. This is a huge advantage for a defense attorney. If we were talking about taking a test, the defense attorney would only need to answer one question correctly to pass the test, while you need to answer every question correctly.
People believe that our court system is fair, which it absolutely is. At the same time, they misunderstand what makes it fair. Injured victims often believe that whoever has the better side of the argument prevails. Unfortunately, they misunderstand the burden the law places on them. The default position of the court is that the person bringing an allegation (you, in this instance), has the burden to prove their allegation. More simply put, victims have a tougher climb to hold wrong-doers accountable.
This isn't to say that victims cannot hold wrong-doers accountable for bad behavior. They have, and they do every single day. It's important to never underestimate that the burden is on you and there's someone on the other side, a defense attorney, who feeds his family by blaming you for something that wasn't your fault.
