Document Sample
					              TRUCKING -

           DANIEL J.T. SCIANO
            Tinsman & Sciano, Inc.
          10107 McAllister Freeway
          San Antonio, Texas 78216
                (210) 225-3121

              State Bar of Texas
               24TH ANNUAL
     July 16-18, 2008 – Dallas/Ft. Worth
       August 6-8, 2008, – San Antonio
        August 27-29, 2008 – Houston

               CHAPTER 4
                                 DANIEL J.T. SCIANO
                                TINSMAN & SCIANO, INC.
                                    10107 McAllister Freeway
                                    San Antonio, Texas 78216
             Phone: (210) 225-3121 • Fax: (210) 225-6235 • Toll Free: 1-800-292-9999

Daniel J.T. Sciano is vice president and named partner at the Law Offices of Tinsman, &
Sciano, Inc. With over 27 years of experience, Daniel has handled a wide array of cases
as part of his exclusively litigation practice. He is equally comfortable handling a serious
personal injury or wrongful death claim or a complex commercial dispute.
Professional Background: Admitted to bar, 1981-Texas; 1986-Wisconsin; U.S.
Supreme Court-1992; U.S. Court of Appeals-5th Circuit-1982; U.S. District Courts for
the Western (1984), Southern (1994), Eastern (1995), and Northern (1995) Districts of
Education: University of Wisconsin (B.S., summa cum laude, 1978); London School of
Economics; St. Mary’s University School of Law (J.D., with distinction, 1981); Phi Delta
Phi; Member, John M. Harlen Society; Senior Associate Editor, St. Mary’s Law Journal,
Memberships: San Antonio Bar Association, American Bar Association, State Bar of
Texas, State Bar of Wisconsin, Texas Trial Lawyers Association, San Antonio Trial
Lawyers Association (Director, 1988-92; President, 1994-95), American Association for
Justice, State Bar of Texas Administration of Rules of Evidence Committee Member,
Awards: Listed as one of the Texas Super Lawyers, Plaintiff Personal Injury: Product
Liability, 2003, 2004, 2005, 2006, 2007, and 2008 by the publishers of Texas Monthly;
and as one of The Best Lawyers in America, Personal Injury and Civil Litigation, 2001,
2002, 2003, 2004, 2005, 2006 and 2007.

Daniel is Certified as a Civil Trial Advocate by the National Board of Trial
Advocacy and is Board Certified in both Personal Injury Law (since 1987) and Civil
Trial Law (since 1988) by the Texas Board of Legal Specialization.

Trucking – Evidence & Demonstrative Preservation                                                                                                          Chapter 4


I.      INTRODUCTION ..............................................................................................................................................1

II.     WHAT IS DEMONSTRATIVE EVIDENCE? ..................................................................................................1

III.    PURPOSE OF EVIDENCE ................................................................................................................................1

IV.     WHY USE IT? ....................................................................................................................................................1

V.      GET TO IT BEFORE IT’S GONE!....................................................................................................................2

VI.     IT’S NO GOOD IF THEY CAN’T HEAR IT OR SEE IT.................................................................................3


        DEMONSTRATIVE EVIDENCE DISPLAYED ON MARKETING BOARDS..............................................4

IX.     ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE – DISCRETION IS KING ......................................5

X.      WHAT IF THAT KEY EVIDENCE IS NOT LET IN? WHAT DO I DO?......................................................5

XI.     PLAN THE USE OF YOUR DEMONSTRATIVE EXHIBITS CAREFULLY ................................................6

        ALREADY ADMITTED....................................................................................................................................6

XIII.   IF IT’S IMPORTANT, MAKE SURE IT IS ADMITTED INTO EVIDENCE .................................................7

XIV.    DAMAGES ENHANCED WITH DEMONSTRATIVE EVIDENCE...............................................................7


        FERTILE SOURCES FOR DEMONSTRATIVE EVIDENCE .........................................................................9

XVII. CHARTS AND DIAGRAMS DESIGNED TO EMPHASIZE TESTIMONY ................................................11

XVIII. LARGE MAPS OF THE UNITED STATES, A PARTICULAR STATE OR CITY. .....................................11

XIX.    ENHANCE THE DRAMA OF DEMONSTRATIVE EVIDENCE .................................................................11

XX.     CONCLUSION.................................................................................................................................................12



Trucking – Evidence & Demonstrative Preservation                                                                 Chapter 4

TRUCKING - EVIDENCE &                                            II.      WHAT          IS        DEMONSTRATIVE
DEMONSTRATIVE PRESERVATION                                                What exactly is demonstrative evidence? The
                                                                 term “demonstrative evidence” is generically referred
I.       INTRODUCTION                                            to as any and all tangible items used at a trial.
         As the title of this paper assigned suggests, the       Sometimes an item is used for illustrative purposes, to
topic of this paper and my oral presentation relates to          summarize, or explain a particular piece of verbal
both evidence and demonstrative evidence in the                  testimony or other evidence, but is not actually offered
context of trucking litigation. Given the length of time         or admitted into evidence itself. Some legal scholars
allotted for the oral presentation, coupled with the             call this type of evidence “demonstrative aids” not
show and tell nature of a topic like “demonstrative              “demonstrative evidence”.        Certain jurisdictions
evidence” the oral presentation will highlight real              actually severely limit the admissibility of all
world examples used by the author or others in the               demonstrative evidence to illustrative purposes, or
context of trucking litigation. The paper attempts to            even refuse to recognize such evidence as having any
provide a good reference point, including citations to           independent evidentiary value.          McCormick; 9
applicable legal and secondary authority for those               A.L.R.2d 1044. For the purposes of this article, the
interested in the trucking litigation field. Trucking            phrase “demonstrative evidence” will be used in the
cases can present special opportunities, as well as              generic sense.
problems, with regard to evidentiary proof, and an
effort has been made to provide some available                   III.    PURPOSE OF EVIDENCE
resources to help the practitioner regardless of which                   Whether formally admitted into evidence or
side of the docket the lawyer is on.                             not, demonstrative evidence can have a persuasive and
         Truck Trailer traffic through the author’s home         compelling affect on a juror’s ultimate decision. A
city of San Antonio, Texas, like other major Texas               good trial lawyer understands the distinction between
cities, has steadily increased with the advent of                demonstrative evidence that is formally admitted into
NAFTA. Certain major highways travel right through               evidence and that which is not.              A piece of
or around the river city that head to or from major              demonstrative evidence that has significant impact in a
United States border towns. Because of its proximity             case that has been expressly denied admission as an
in both time and distance to the United States/Mexico            exhibit can nevertheless provide powerful support to
border, thousands and thousands of truck tractor rigs            verbal testimony by being used for “illustrative
travel through the city every day. Inevitably some of            purposes only” and still serve its purpose under that
those commercial motor vehicles – due to either the              form. A juror, in a long trial in particular, will
negligence of the operator or the motor carrier who              remember the facts better if any of the evidence,
employed them, are involved in a catastrophic injury or          including damages evidence, is presented verbally and
death.                                                           visually rather than verbally alone.
         Demonstrative evidence goes with an                             The best demonstrative evidence, in my
auto/truck accident trial like “bread goes with butter”,         opinion, speaks AFTER it is admitted into evidence or
“ham goes with cheese”, or “picket goes with fence”.             long after it has been discussed or presented in court,
No lawyer should try any case without the use of some            when it makes it to the jury room where it counts most.
type of demonstrative evidence, but it is particularly           In one sense, demonstrative evidence is a piece of
vital in truck/auto accident cases. Because of the               evidence that fills some evidentiary void, either as part
disparity of weight between even an unloaded truck               of your case in chief, or to rebut something raised by
tractor rig and a typical passenger automobile, property         your opponent. Demonstrative evidence can come in
damage and scene photos are a fertile ground for the             many shapes and forms. (See Appendix A, attached
proverbial “picture worth a thousand words”. More                hereto). Whether it is an object or article, it is evidence
importantly though, well planned and effective real and          that speaks for itself, testifying after its admission or
demonstrative evidence can provide an opportunity for            display to the finder of fact or the applier of the law.
the trial lawyer presenting evidence to either heighten
or hinder their credibility with the fact finder. This           IV.      WHY USE IT?
paper and my oral presentation has as its primary                         Why      use      demonstrative       evidence?
purpose a discussion of the different types and methods          Demonstrative evidence helps describe or explain
of presenting demonstrative or real evidence, in the             concepts or ideas that are difficult, or, from a practical
context of the truck tractor collision. It also includes a       standpoint, are all but impossible to verbalize. Not
form notice letter with requests for preservation of             only is demonstrative evidence important from an
evidence in the context of trucking litigations (Exhibit         evidentiary standpoint but it is critical to maintain
A) as well as a partial check list of items to seek out in       interest. Interested jurors listen. Interested jurors
the context of most truck tractor litigation (Exhibit B)         ultimately develop a personal stake in the trial as the
Trucking – Evidence & Demonstrative Preservation                                                                 Chapter 4

ultimate fact finder and with the benefit of effective           film or digital images back in rotation. They film
demonstrative evidence are provided a powerful tool in           many minutes to get that 5 second image. These
the deliberation room itself to persuade the other               outtakes may provide the sole means of obtaining
members of the panel what the answers to the ultimate            points of rest of vehicles, the existence of other
fact questions of fact should be. In my opinion, when            witnesses at the scene, or physical conditions at the
jurors are interested, they listen in a way that is              time or the day of the collision simply missed by the
focused. This allows you to drop memory “anchors”                investigative officer. Photographs taken by police,
for your jurors to recall when they are in a deliberation        child protective organizations, or hospitals themselves
room. The ability to create interest in a particular type        oftentimes are “gone” because they were never sought
of demonstrative evidence is in part certainly                   to be retrieved until it was too late. Sometimes they
dependent upon the quality or nature of the                      were destroyed in the ordinary course of business
demonstrative evidence. Interest in evidence presented           because of lack of adequate storage space. Sometimes
to jurors permeates just as importantly and maybe                they exist years later, but no one bothers to ask for
more effectively, from an interested, concerned, and             them or seek them out. Either way, getting it early
passionate advocate. The timing, color choice, form,             increases the chances of making sure it is obtained.
and order of evidence is often heavily controlled by the                  In the context of a trucking accident that has
trial lawyer who seeks propounding it. The lawyer who            resulted in serious injury or death, especially with
sets the stage “first” on the way certain evidence is            regard to national trucking companies with significant
offered can literally change the focus and effectiveness         self insured retention, on-scene investigation by
of the evidence presented. If you as an advocate are             designated       corporate     safety      representatives,
engaging and thoroughly interested in the manner in              knowledgeable claims handling consultants with vast
which demonstrative evidence is presented, these                 trucking experience, specially retained accident
conditions are truly contagious. From a legal                    reconstruction experts, and legal counsel experienced
standpoint, using demonstrative or real evidence in              in trucking litigation often occurs within hours. Rather
your case is for the purpose of establishing or making           than running the risk of lost evidence and waiting even
clear a substantive point. But this type of evidence             a few days after a serious injury or fatality, most large
does much more -- it provides emphasis to a point. It            national trucking companies and insurance carriers
adds exclamation points to your evidence. If done                have teams of specialists prepared to arrive at the scene
right, it makes it more memorable. In essence, it makes          and have set out designated documents that are
that evidence more persuasive.                   Effective       automatically retained. The level of investigation
demonstrative evidence creates suspense, creates and             performed by local investigating police officers,
holds the jurors’ attention, and focuses that attention to       sheriff’s departments, or the Department of Public
where YOU want their attention and focus to be.                  Safety is often dependent upon the background and
          Importantly, the psychosocial people tell us           experience they have. The weather conditions at the
that persons REMEMBER what they see longer than                  accident site can also play a major factor in the depth
what they are told. When considering issues of                   and specificity of the investigation performed.
primacy and recency, it is important to consider how             Sometimes a wet weather scene or heavy traffic at the
demonstrative evidence will help jurors remember                 site of the accident results in a determination being
important facts. Demonstrative evidence also should              made too quickly regarding the cause or causes of how
wake up the audience -- whether it is your judge, jury,          the collision occurred or how the collision could have
or both. Further, demonstrative evidence takes away              been avoided. Many times due to the severity of the
the tedium that is often part of the trial process. In           collision forces that often occur in a truck tractor
today’s society, in my opinion, jurors expect to be              collision, the passenger vehicle operators or occupants
entertained in the trial process and the lawyer that             are killed or are unable to provide details of what
effectively uses demonstrative evidence adds                     happened prior to the officer completing the standard
credibility to him/herself. In this author’s opinion, if         police report. The truck driver’s statements of “what
you not only put on your evidence, but make the                  happened” in those situations where there is a lack of
process less boring or make it downright exciting, you           credible independent eyewitness testimony can result
are perceived as more persuasive by both the court and           in wrongfully placing sole responsibility for the wreck
the jury.                                                        on the passenger vehicle operator. Other times, the
V.        GET TO IT BEFORE IT’S GONE!                            rush to judgment can cut the other way when the
          Too often critical evidence that goes to the           collision involves a “local” pickup or passenger vehicle
heart of a damage component of a case is lost forever            operator who is killed in a rural town and the trucking
due to the failure to preserve it. Emergency or 911 call         company and operator of the truck tractor rig are from
tapes that are recorded over after a few days need to be         out of state. The level of cooperation, or deliberate
obtained promptly. Outtakes by news organizations                lack of it, can also play a major factor in what is known
that film at the scene for the evening news place their          to the investigating officer. The truck trailer rig might
Trucking – Evidence & Demonstrative Preservation                                                                Chapter 4

have sophisticated global positioning system data, or            worth a thousand words” is why it is vitally important
onboard communication systems – audible or textual -             to analyze how demonstrative evidence can portray our
that might completely contradict or corroborate what             client’s case for us regardless of what side you
the truck driver was or was not doing. Similarly,                represent. Demonstrative evidence should not be
Electronic Computer Monitors (ECM’s) that provide                limited to your case in chief but should be used in all
detailed information of what the power unit was or was           phases of the trial, including voir dire, and opening
not doing immediately prior to the impact is only                statement if possible. Also, never forget that at
obtainable from authorized original equipment                    mediation or settlement conferences the rules of
manufacturers with the proprietary software capable of           evidence do not apply. Demonstrative evidence can be
reading it. On some commercial and passenger                     used effectively at this stage regardless of ultimate
vehicles, failing to preserve and obtain the electronic          admissibility.
data from ECM’s before the vehicles are restarted, or                       In trucking litigation the truck driver’s
worse yet before the vehicles are parted out for salvage         qualification file and personnel file can contain
or resold, can have a potentially adverse affect in              valuable evidence to establish an operator WAS or
litigation. Sometimes this electronic data provides              WAS NOT qualified to operate a commercial motor
additional corroborative proof of other direct or                vehicle. Both should be preserved immediately after a
circumstantial evidence and in some cases it can                 wreck. The driver’s logs (if applicable) that are in the
completely contradict unreliable “alleged” eyewitness            possession of the truck driver (if physically possible) in
testimony. It is for this reason that reasonable attempts        addition to those maintained by the motor carrier
to obtain and preserve this electronic data should be            should be preserved and obtained. These documents
taken if at all possible. Sometimes this is NOT                  are in multiple original and can often be used to
possible or practical due to the time in which legal             establish or refute contentions of spoliation.
counsel is retained. Other times because of the “rush            Operational records including bills of lading, dispatch
to judgment” referenced above, an investigative report           records, delivery receipts, fuel purchase records, com
may be incomplete or completely inaccurate and                   data records, weight tickets, and any proof of toll booth
retained litigation counsel may preliminarily and                payment should be preserved. This includes not only
wrongfully conclude that his client is at fault and is the       those applicable to the last trip in question but any
major cause of the wreck and therefore the case will             records that might corroborate habitual compliance or
not financially justify retention of a qualified accident        non-compliance with state or federal motor carrier
reconstructionist. Despite this, reasonable efforts to           regulatory requirements.
preserve physical evidence in its original state that
might otherwise be lost should take place if reasonably          VI.      IT’S NO GOOD IF THEY CAN’T HEAR
possible. Because of the fact a truck tractor and trailer                 IT OR SEE IT
combination involved in a wreck are for hire vehicles                     It goes without saying that visual
that are losing money when they are down for repairs,            demonstrative evidence should be able to be seen and
market forces can conflict with the importance of                auditory demonstrative evidence needs to be heard by
preserving key physical evidence. As an attorney                 your jury audience. An awkward seating position,
handling trucking cases for over 27 years, there are             blocked view of a witness or a juror, or a blind spot are
also situations where potential contradictory physical           all things that need to be scouted out in advance and
evidence, electronic or otherwise, appears to have been          eliminated if possible before trial begins. A smooth
deliberately NOT preserved by unscrupulous parties               presentation is often helpful in increasing the chances
because of the adverse effect such evidence might have           that the demonstrative evidence will be received
in criminal or civil proceedings.                                favorably by a judge or jury. On the other hand, I have
           The dramatic effect that demonstrative                watched first hand a trial master as he deliberately
evidence can bring to a case should also not be                  failed to properly lay a foundational predicate to allow
underestimated. Demonstrative evidence often aids,               admission of the key smoking gun document. After
clarifies or assists the trier of fact. It is the kind of        about the third witness was unable to provide the
evidence that tells the story of your case, or at least          necessary foundation to prove up the document, the
some important part of it. Whether it is the liability           opposing counsel was grinning ear to ear each time his
portion of the case, causation, or damages,                      objections were properly sustained. He was winning
demonstrative evidence has a critical place in every             right? Why shouldn’t he be smiling? In reality, the
trial. You know good demonstrative evidence when                 crafty trial lawyer moaned as the judge sustained the
you see it. It speaks about the aspects of liability,            technically proper objections and sadly he proclaimed
causation, or damages or a litany of other issues.               how critical this evidence was to his case and how he
Those who attend this seminar already know that we               just had to get it in. He would, at the same time, shake
tend to believe and remember best that which we see in           his head in disbelief after each ruling denying
addition to what is told to us. The phrase a “picture is         admission. He would look surprised that this key
Trucking – Evidence & Demonstrative Preservation                                                                  Chapter 4

documentary evidence was being denied admission and              summarizing events or facts in a particular “summary
not properly displayed to the jury. By now, the jurors           board” or “time line” that makes the decision process
were at the edge of their seats wanting to see what all          easier. Good demonstrative evidence helps jurors get
the “fuss” was about with regard to this “exhibit” that          to your side of the conflict earlier. Jurors will then use
was causing all this ruckus. The older, wiser, crafty,           cognitive dissonance to hear what they want to hear
trial lawyer said under his breath to me after the third         and disregard the conflicting evidence that does not
witness was unable to meet the evidentiary foundation            comport with how they have resolved the conflict.
necessary for admission, “NOW WE DO IT THE
RIGHT WAY …THEY’RE READY!” The next                              VIII.    LAWYERS           PRESENCE          IN       THE
witness, number 4, proved up the document, as he was                      COURTROOM CAN BE ENHANCED
always planned to do, and each juror couldn’t wait to                     WITH DEMONSTRATIVE EVIDENCE
see what this document was that caused all the                            DISPLAYED ON MARKETING BOARDS
commotion. Sometimes the “wrong way” IS the “right                        My mentor told me years ago that jurors look
way” to prove something up.                                      for the lawyer with presence in the court room. Good
         In my opinion, however, a trial lawyer has to           demonstrative evidence can help a lawyer project a
be careful to not play what some call “Columbo” too              presence or aura in the courtroom. Jurors always make
often. If a judge repeatedly keeps out your evidence,            decisions on who they trust in the courtroom. If the
the jury may very well actually believe you are in fact          jurors “like” you, this factor has a subtle but also a
unskilled, incapable of offering exhibits into evidence,         very powerful effect on your persuasiveness. They are
or, worse yet, incompetent. If you consistently                  also asking themselves “Can I trust him/her to tell me
demonstrate your inability to get your evidence                  the truth or is he/she just another one of those slick
proffered properly, and waste the jury’s time, they may          lawyers I have read about or seen on TV or in the
very well disregard you as the “leader” or “authority”           movies?” If you are sincere and honest to the jury,
in the court room, which has its own detrimental side            these character traits go a long way in allowing them to
effects.                                                         trust you. I believe most jurors do, in fact, want to
                                                                 satisfy their intellectual search for the truth. Being
VII.    PSYCHOLOGICAL COMPONENTS OF                              sincere and honest in what you say helps them
        THE       USE      OF      DEMONSTRATIVE                 gravitate to your thoughts about what the “truth” is in
        EVIDENCE                                                 this particular case. If you are not only competent, but
        The serial position effect is the phenomenon,            efficient in the way you present your case by the use of
in which the first and last things in a series are learned       helpful and effective demonstrative evidence, jurors, in
more quickly than the middle. Therefore, although                my opinion, give you heightened stature in a case.
subject to exception, most good trial lawyers will tell                   I have watched jurors shake their heads at
you the best witnesses should go on first and last,              lawyers who habitually stammered or bumbled around
because, practically, the jurors will likely forget much         trying to find something that was admitted into
of what occurs between. The timing and sequence of               evidence or trying to find something they want to
demonstrative evidence used can enhance this                     admit into evidence.          Shuffling frantically and
phenomenon or help jurors remember what happened                 repeatedly to find something, makes you look like the
in the middle. Those present at this seminar obviously           disorganized person you probably are. I try to put the
already know that we are better visual learners than             important stuff somewhere I can get to it at a moments
auditory learners. Demonstrative evidence helps us               notice and then let it testify throughout the trial. I do
allow the jurors to be better learners of our important          this by the use of display or marketing boards in
facts. We also know that the attention span narrows              combination with Velcro backed exhibits attached to
under stress, fatigue, and boredom. Demonstrative                solid foam core. These boards can be used in
evidence helps take away the boredom that a trial                combination with key phrases and key demonstrative
based on words alone creates.                                    exhibits that are habitually displayed to the trier of fact.
        We also know from the social scientists that, if         This ensures that the theme of your case is close at
a person is described as “warm,” a whole cluster of              hand and that you look confident and organized. I
positive traits will be ascribed to that person simply           have never failed to use such a board or boards and
because of that one positive trait. Demonstrative                have never had a jury not complement me on how it
evidence can help you visually establish that trait with         helped them reach their decision and made my side
positive photographs depicting the person in that light          look prepared and “right”.
coupled with complimentary verbal testimony.                              Additionally, these display boards, in my
        Jurors also have a real need to resolve conflict.        opinion, help you with your own confidence in
The longer the trial, the greater the need of jurors to          knowing that you have thought out your trial themes
resolve this feeling of conflict.          Demonstrative         and have them available to testify at a moments notice
evidence can make the resolution of conflict simpler by          with the key exhibits telling your liability and damages
Trucking – Evidence & Demonstrative Preservation                                                                 Chapter 4

story for all to see. They also allow you to change               harm, it is especially daunting to do so in a long trial
what is important at any given time and display it like a         where the demonstrative exhibit will likely be deemed
billboard in front of your target audience. If you are            cumulative of verbal testimony on the subject.
shaky or unsure of your case, it translates almost                Reversible error does not usually occur in connection
universally, into lack of confidence and a                        with evidentiary rulings unless the whole case turns on
corresponding disbelief in your client’s case.                    the particular evidence admitted or excluded. In re
         Display or marketing boards can be self made             K.M.B., 91 S.W3d 18 (Tex.App.—Fort Worth, 2002);
3/4 inch 4’ X 8’ foot plywood board cut into two 2’ x             Garza v Guerrero, 993 S.W.2d 137, 140 (Tex.App.—
8’ sheets joined with door hinges, and affixed with               San Antonio 1999, no pet). Just like the initial
inexpensive carpet glued to them. Alternatively and               decision to admit or exclude evidence is subject to
preferably, they can be more expensive but portable               wide latitude of the particular trial court’s discretion,
and lightweight professional display boards that can be           ultimately the harmless error rule analysis is similarly
transported in their own carrying case.              (See         entrusted to the sound discretion of the reviewing and similar websites). The              court. Lorusso v. Member Mutual Ins. Co., 603 S.W.2d
latter are not only relatively lighter but also their             818, 821 (Tex. 1980).
professional look adds to your proficiency.                                The important message sought to be conveyed
Correspondingly, that look adds to your credibility.              here is “live to fight another day” and “don’t burn your
They can be easily set up and moved if a trial judge              discretionary bridges”. Although it is easier said than
requires you to close them during your “opponent’s                done, in the heat of the litigation battle, if a judge
side of the case” as some judges have required of me.             makes erroneous rulings, don’t ever forget that he or
They represent one of the important tools a trial lawyer          she is always the judge. A judge who is angry with
should have if he/she tries numerous cases. In my                 you is not likely to give you favorable broad
opinion, they pay for themselves the first time you use           discretionary evidentiary rulings, in either admission or
them.                                                             exclusion of evidence. One trial lawyer who I tried
                                                                  numerous cases with used to bet me that a particular
IX.      ADMISSIBILITY OF DEMONSTRATIVE                           piece of evidence would ultimately “get in” even if it
         EVIDENCE – DISCRETION IS KING                            was a long shot in a lengthy trial. Sometimes he would
         Demonstrative evidence admissibility, like               offer the same exhibit 10 or more separate times ,
most evidence, is subject to the wide latitude of the             offering it for another purpose, before it would
trial court’s “discretion”. Every trial lawyer knows              ultimately make it through. He always proved to be
that, with regard to what is displayed to the jury or             right, despite admonishments from the court that “no
admitted into evidence, it is mostly controlled by the            matter how hard you try, I’m not letting that evidence
discretion of the trial judge. The Texas Supreme court            in”.    Be persistent and oftentimes you will be
has repeatedly noted that whether evidence is admitted            rewarded, hopefully not with an order of contempt.
or excluded is within the trial court’s discretion. City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex                 X.       WHAT IF THAT KEY EVIDENCE IS
1995). Although there are special rules with regard to                     NOT LET IN? WHAT DO I DO?
out-of-court experiments or reenactments, the latitude                     What if the judge just got it wrong and
of a trial judge to admit or deny demonstrative                   improperly sustained an objection and did not let you
evidence is broad. The extent of the trial judge’s                get your key demonstrative or real evidence go to the
power to admit or exclude demonstrative evidence is               jury? To preserve error in the exclusion of evidence
exercised daily by our trial court judiciary. In reality,         you must take key steps as a trial lawyer. First, you
this is almost unbridled discretion, when coupled with            must attempt to introduce the evidence. Secondly, if
the harmless error rule on appeal.                                an objection is lodged, specify the purpose for which
         To obtain a reversal based on error in                   the evidence is offered and the reasons the evidence is
admission of evidence, a losing party must show more              admissible. Third, obtain a ruling. Finally, number
than the ruling was in error. In addition, you must               four, if the judge rules the evidence is inadmissible,
show a substantial right was affected, and the error              make a record, through a bill of exceptions, of the
probably caused the rendition of an improper verdict              precise evidence you desired to admit. Richards v
Tex.R.Evid. 103(a); Tex.R.App.P. 44.1(a). What is                 Commission for Lawyer Discipline, 35 S.W.3d 243,
more, the analysis of determining whether the error               252 (Tex App.-Houston[14th Dist.] 2000, no pet.). To
probably resulted in an improper judgment requires a              complain on appeal that your trial judge erroneously
review of the entire record. Boothe v. Hausler, 766               excluded evidence, you must follow these steps
S.W.2d 788 (Tex. 1989); City of Brownsville, 897                  including making a proper bill of exceptions. Malone
S.W.2d at 754. Although the admission or exclusion of             v Foster, 956 S.W.2d 573, 577 (Tex.App.-Dallas 1997)
certain types of demonstrative evidence can in fact be            aff’d 977 S.W.2d 562 (Tex. 1998). By failing to make
the basis for reversal of a case, if a party can show             a proper bill of exceptions, you will be found to have
Trucking – Evidence & Demonstrative Preservation                                                                Chapter 4

waived any error in the exclusion of the “alleged” key           jury and admitted into evidence. It is vitally important
evidence.                                                        to keep an eye on your opponent, too despite his or her
                                                                 perceived professionalism. In one medical malpractice
XI.      PLAN        THE        USE       OF      YOUR           case, both parties used a plastic model arm as
         DEMONSTRATIVE                       EXHIBITS            demonstrative evidence to assist the jury in its fact
         CAREFULLY                                               finding role. Perez v. Bagous, 833 S.W. 2d 671
         If you fail to carefully preplan demonstrative          (Tex.App.-Corpus Christi, 1992). The patient had filed
evidence, it may actually be used against you. Time              a medical malpractice action after he allegedly suffered
and time again, demonstrative evidence sought to be              nerve damage after an injection into his arm. The
used to portray a certain fact or scenario can backfire          model had not yet been formally admitted into
despite the best laid plans of competent counsel. As an          evidence. During a scheduled jury recess, the appellee
example, the lawyer who built a mock-up window to                doctor, allegedly at his attorney’s direction, removed a
show the insured committed suicide. The theory was it            needle (that had already been admitted into evidence)
was “impossible” to fall out the window accidentally             from its sheath and inserted it into the model arm
without also knocking over a plant that was on the               exactly where the appellant testified he received his
window sill. When the lawyer was attempting to show              injection. The crafty trial lawyer allegedly did not tell
how it was impossible, he accidentally slipped and fell          either the court or the appellant he had done this. The
through the mock-up window without the plant falling             appellant, who had allegedly not realized that the
or breaking. Although a mistrial was granted, the case           model arm that had been used throughout the trial now
settled thereafter.                                              had an exhibit needle in it, failed to inspect the model
         In another example, a lawyer constructed an             and allowed the model arm into evidence without
elevator as part of the demonstrative means of                   objection. During closing arguments, the attorney who
explaining how an accident happened. The defense                 inserted the needle referred to the model arm and to the
contended the elevator was overloaded. The plaintiffs            fact that the needle had been inserted in it and asked
contended only a certain number of workers could                 the jury to make its own physical examination and
reasonably fit. The jurors showed that 12 could fit              confirm the needle did not strike the nerve that
rather easily and then they asked the court and lawyer           allegedly gave rise to the injuries. Similarly, additional
if they could see if they could jam some more in from            counsel for the doctor, during his portion of the closing
the audience. If your jurors themselves prove your               argument also referred to the model arm and the fact
theory doesn’t fly, you have not only lost credibility,          that the needle had been inserted. After the jury retired
but probably lost the entire case as well.                       to deliberate, all the exhibits, including the model arm
         In one case I was involved in, the lawyer had           were delivered to the jury room. Thereafter, the jury
the entire interior apartment unit lined out and taped           recessed for the day and when they returned the
off in the courtroom. Further, he had constructed out            following morning, the exhibits were withheld
of cardboard, lifesize appliances and other objects in           temporarily. Only at this time did the appellant request
the kitchen to show how something was not possible.              the court to withdraw the model because of the needle,
Over strenuous objection, the defendant was allowed to           contending the exhibit was the result of an out-of-court
use the mocked up room on direct, despite the fact that          experiment. He further requested that the jury not be
it had never been disclosed in pretrial discovery. Cross         allowed to consider the exhibit for any purpose
examination immediately thereafter went so badly for             whatsoever. Although there was a dispute as to
the defense that the entire “set” disappeared the next           whether or not the attorney who inserted the needle
day and was never seen again. The trial judge said               told the court reporter what he had done, there really
later in the case, “what was all that fuss about that            was no dispute he had not told either the court or the
mock-up, after it was over, it turned out to be your best        appellant he had done this. The trial court ultimately
exhibit.” Although the court was probably right, you             concluded that the appellee’s lawyer waived error by
never really know until it’s too late.                           failing to make a request or motion at the time the
                                                                 exhibits were tendered to the jury and the appellate
XII.     BE CAREFUL TO WATCH YOUR                                court agreed. Perez v. Bagous, 833 S.W. 2d 671
         OPPONENT AND DON’T MESS WITH                            (Tex.App.-Corpus Christi, 1992). This is a good
         EXHIBITS ALREADY ADMITTED                               example of why it’s important to thoroughly examine
         As the above examples show, demonstrative               any demonstrative exhibit offered into evidence, even
evidence may actually hinder or defeat your case as              when it appears to be evidence you really want
well as help win it. You also need to be vigilant once           admitted, because of potential problems just as
the evidence is “in” evidence”. In Texas Dept. of                described above. Don’t be afraid to take your time if
Transp. v. Fontenot, 151 S.W.3d 753 (Tex.App.-                   there is any doubt. This same principle applies to
Beaumont, 2004) the record reflected the trial judge             exhibits that have already been admitted before they
altered a police report after it had been exhibited to the       are tendered to the Jury Room. Rule 281 is mandatory
Trucking – Evidence & Demonstrative Preservation                                                                  Chapter 4

and the trial court is required to send all exhibits             hospital stay documented videographically. It is the
admitted into evidence into the jury room during                 sight and sound of burn care that makes it the painful
deliberations of the jury. First Employees Insurance             and emotionally draining injury it is. The only real
Company v Skinner, 646 S.W.2d 170, 172 (Tex, 1983).              way to understand the nature and extent of burn
                                                                 injuries is to follow it from the acute stage through the
XIII.    IF IT’S IMPORTANT, MAKE SURE IT IS                      emergent, and then through the healing stage to walk in
         ADMITTED INTO EVIDENCE                                  the shoes of the injured victim.            This includes
         The evidentiary value of an object displayed to         documenting the PT that goes with stretching graphed
the jury never makes it into the jury room unless it is          skin.
actually admitted into evidence. This double board                        “Day in the life” film is a critical part of
certified personal injury trial and civil trial lawyer           conveying the trauma associated with the treatment
actually had the joy of serving on a jury in Bexar               necessitated by the injury the defendant caused. This
county. The jury was required to render a verdict and I          is especially true with regard to children and brain
witnessed firsthand the important distinction between            injured victims who may be unable to speak for
evidence used for illustrative purposes and evidence             themselves about the trauma, either due to age or
properly admitted.                                               physical or mental infirmity.           Documenting the
     A large diagram of the scene was used extensively           physical pain or mental suffering videographically, if
throughout the trial but neither party offered it into           there is a way to do it, is a critical part of the plaintiff
evidence. After being placed in the jury room, and               counsel’s job. Regardless of its actual admissibility
choosing the presiding juror, the evidence admitted              into evidence, the mere fact that the ultimate
was being reviewed by the entire jury panel when one             admissibility of “day in the life” footage is subject to
of the jurors said, “Where is that diagram”? After a             the wide discretion of a trial judge can help resolve a
few minutes, it became obvious to everyone that it               claim because of the “risk” that a portion or all of it
wasn’t there. The other jurors absolutely wanted that            may in fact come in. It is especially helpful in
exhibit for the benefit of the deliberative process.             persuading cold-hearted claims handlers that see the
They went so far as to have the presiding juror make a           same written descriptions over and over again. In this
specific written request for it to be provided to the jury       author’s opinion, the documented treatment preserved
room to be considered since it had been referred to              by sight and sound is often the best evidence of the
throughout the trial. The court appropriately advised            physical or mental trauma suffered.
the jury the physical exhibit would not be provided and                   Regardless of whether your client’s injuries
that the jurors were to rely on their recollection of the        were actually videoed or photographed, there are
testimony. Two jurors actually got into a heated                 numerous sources to obtain similar surgical procedures
debate about what the diagram did or did not show                from medical schools or third party vendors.
based on their recollections. Further, a number of the           Documenting the nature and extent of the injuries
jurors commented negatively about the fact the lawyers           photographically and by videotape should be a matter
didn’t provide this “key evidence” for them to reach             of course in any auto/truck accident case, as has been
their verdict on. They also commented negatively                 discussed above. There are a number of good quality
about the fact a number of the scene photographs were            third party vendors that can create demonstrative
black and white photostatic copies rather than color             evidence from the medical records themselves.
reprints or color copies.            The poor quality            Additionally, they can supplement, enhance or
demonstrative evidence was actually used sarcastically           combine x-rays, CTs and photographs or video to
by one juror as a basis to question the validity of that         provide, on one exhibit, the whole story of an injured
particular litigant’s entire claim. These actions brought        victim’s injuries or damages. This author has used or
home how jurors can and do react positively or                   observed the work of the following vendors who
negatively to demonstrative evidence offered or that             provide excellent resources in this regard:
which is failed to be offered. This is a personal lesson         MediVisuals (, The Doe Report
this lawyer has never forgotten.                                 (, and The Palette Group
XIV.     DAMAGES            ENHANCED              WITH
         DEMONSTRATIVE EVIDENCE                                  XV.      THE COURTS RECOGNIZE CERTAIN
         In a case involving burn injuries sustained in a                 DEMONSTRATIVE           EVIDENCE         AS
collision, one might hear verbal testimony about the                      MORE COMPELLING
burn treatment process alone, but the difference                          The greater influence of certain types of
between verbal testimony (in conjunction with a few              demonstrative evidence has been discussed by the
color photographs), is something completely different            courts. In Lopez v. Foremost Paving, Inc., 796 S.W.2d
from actually having the fact finder observe short               473 (Tex.App.-San Antonio, 1990) the court noted:
segments of the entire burn treatment during the
Trucking – Evidence & Demonstrative Preservation                                                                 Chapter 4

        The powerful effect of videotape on                       “reenactments,” the courts can be especially critical of
        jurors has been recognized. See Misko,                    efforts to offer such evidence without fully explaining
        Videotape     for    Litigation,     26                   any dissimilarity between the video reenactment and
        So.TEX.L.J. 485 (1985). Pictures can                      the actual collision.       To increase your odds of
        "transmit a message far better than any                   admission and to properly protect your record on
        human witness." See Hannewacker v.                        appeal, the proffering party needs to take special
        City of Jacksonville Beach, 419 So.2d                     precautions when it comes to reenactments.
        308 (Fla.1982). The average person                                 The admission of a reenactment that is
        learns more effectively by seeing                         dissimilar as proof of “what happened” can and does
        rather than hearing. Misko at 485.                        result in the reversal of trial court judgments. Lopez v.
        Videotape makes a more lasting and                        Foremost Paving, Inc., 796 S.W.2d 473 (Tex.App.-San
        intense impression on jurors than other                   Antonio, 1990). In Lopez, the defense expert created
        forms of proof:                                           what he described as videotape reenactment of “how
                                                                  the accident occurred”. When offered, the video did
          [It] is a convincing means of                           not purport to illustrate any specific principle. The jury
          demonstrative evidence because we                       was not specifically instructed on the extent to which it
          live in the age of television. There                    was to consider the videotape or that it was to be taken
          is something about television and                       in light of factual dissimilarities with the actual
          the videotape that has an unspoken                      occurrence. Both parties referred to the film in question
          credibility about it. They start the                    as an accident reconstruction film. The court noted:
          day in the morning watching "Good
          Morning, America" and wind up at                                “While narrating the video, defense
          night with the 11:00 news, if not                               witness Nalle did not explain
          something worse, and they are                                   differences between the depiction and
          accustomed to it, and they accept it                            the actual accident, nor did he ever
          ... Witke, Higgins and Babcock,                                 mention fog or darkness. In the seven
          "Video Tape is Worth a Thousand                                 pages of testimony, which comprise
          Words": Use of Demonstrative                                    his narration of the video, the only
          Evidence in the Defense of a                                    statement made by Nalle which could
          Product     Liability    Case,    50                            arguably be construed as a reference to
          Ins.Counsel J. 94, 97 (1983).                                   the fog and darkness was, "We're not
                                                                          telling you the exact visibility." Nalle
          A Missouri court has observed that                              admitted that the tractor-trailer in the
          "caution is required in admitting                               video was shorter than the one actually
          motion pictures because, while the                              involved in the accident.”
          danger of false perspective or of
          intentional fabrication exists as to                    When coupled with the fact that the video was NOT
          both still and motion pictures, these                   disclosed timely to plaintiffs, the erroneous admission
          dangers are greater in the motion                       of the reenactment, including the dissimilarities that
          picture." Cryts v. Ford Motor Co.,                      were not fully disclosed to the jury before its
          571        S.W.2d      683,       691                   admission, was deemed sufficient to require reversal of
          (Mo.App.1978).                                          the trial court judgment.
                                                                            Similarly, the Texas Supreme Court has
         Because of this, Texas appellate courts have             addressed the erroneous admission of a dissimilar
held that a film intended for even a limited purpose,             filmed reenactment in Pittman v. Baladez, 158 Tex.
such as illustration of a principle or use as a visual aid,       372, 312 S.W.2d 210 (1958), In Pittman, there was a
must show sufficient similarity to the actual accident in         crucial evidentiary dispute as to which vehicle crossed
order to be admissible in evidence. Ford Motor Co. v.             the center stripe.        The Texas Supreme Court
Nowak, 638 S.W.2d 582, 590 (Tex.App.--Corpus                      specifically found reversible error resulted from the
Christi 1982, writ ref'd n.r.e.); see also Kainer v.              admission into evidence of an experiment conducted
Walker, 377 S.W.2d 613, 616 (Tex.1964). The                       under conditions that lacked similarity to those of the
offering party's by affirmatively acknowledging to the            actual occurrence. Further, the Court ruled that the
jury the dissimilarities between a videotaped                     erroneous admission amounted to such a denial of the
reconstruction and the actual occurrence can serve to             rights of the petitioner as was calculated to cause and
alleviate unfairness that might otherwise lead to                 probably did cause the rendition of an improper
demonstrative evidence not being displayed. See Beers             judgment. Pittman, 312 S.W.2d at 217. Therefore, it is
v. Western Auto Supply at 815. In the context of video            critically important to recognize that, when offering
Trucking – Evidence & Demonstrative Preservation                                                                Chapter 4

demonstrative evidence that is in the context of a                       into the rear of a parked vehicle
filmed or videoed “reenactment”, one must establish                      because they thought it was moving
substantial similarity, or, at a minimum, fully explain                  normally.
the dissimilarities as part of the evidentiary burden and
timely supplement such evidence to ensure that its               Copies of the Commercial Motor Vehicle Driver’s
admission does not give rise to a reversal on appeal of          Handbook from the state of licensure of the truck
any judgment obtained due to erroneous admission of              tractor operator should also be obtained if he is
evidence.                                                        licensed in a state other than Texas. The information
                                                                 set out above was bolstered when the organizational
XVI.     DRIVERS HANDBOOKS, THIRD PARTY                          representative for the trucking company was cross
         SAFETY ORGANIZATIONS, COMPANY                           examined concerning similar commercial driving
         SAFETY           MANUALS,             DRIVER            handbooks from the other 49 United States which had
         TRUCKING LOGS AND OPERATIONAL                           been informally obtained by freedom of information
         DOCUMENTS ALL PROVIDE FERTILE                           requests to each state authority. The Defendant’s own
         SOURCES         FOR      DEMONSTRATIVE                  witness, who was speaking on its behalf concerning
         EVIDENCE                                                driver safety, confirmed that every single state had
         The Texas Commercial Motor Vehicle Drivers              similar language about the existence of the phenomena.
Handbook in trucking cases, a Defensive Driving                  Ultimately, the witness conceded he was actually
Manual, or the Texas Motor Vehicle Driver’s                      aware of the phenomena outlined by the State
Handbook are all excellent sources to establish the              Commercial driving handbooks but “Didn’t believe it”.
standard of care in truck or automobile collision cases.         This actual awareness of the known hazard, and the
What better way to express and document the nature of            deliberate decision to not teach it, or explain how to
the hazard and how to reasonably avoid it then citing            avoid it in safety meetings, was used as a direct means
as authority the driving manual a professional truck             of establishing the inadequate training claims against
driver used to obtain his license after he recognizes it         the trucking company. With the help of American
as an authoritative source reasonably relied upon by             Trucking Association literature, competitor safety
trucking experts such as himself in the field. In one            manuals showing the custom and practice in the
case I tried, there was (at the beginning of the case) a         industry, and testimony from the defendant’s own
serious dispute as to whether the idea of “fascination           commercial motor carrier safety expert, the jury found
phenonomena” sometimes referred to as the “moth                  the trucking company independently negligent for its
syndrome” was a legitimate concept. The idea is that             driver parking in the emergency lane for over 1½ hours
drivers who are in a low state of arousal either due to          without an emergency.
fatigue, or otherwise, actually follow right into the tail                There are additional authoritative sources that
lights of stopped vehicles parked on the shoulder of the         are ripe for the picking available from multiple sources
road. These drivers literally plow into the back of              that will almost universally be recognized by trucking
parked truck tractors believing they are moving when             safety professionals. J.J.Keller & Associates, Inc., out
they are in fact stopped. The validity of the concept            of Neenah, Wisconsin, provides volumes of
was subject to disputed expert testimony but was, for            authoritative safety literature from stand alone safety
all practical purposes, conclusively proven when the             manuals to audio visual safety courses in DVD and
Texas Commercial Motor Vehicle Driver’s Handbook                 video format that provide excellent sources to create
issued by the Texas Department of Public Safety was              demonstrative evidence. The
recognized as authoritative and the following passage            U.S. Department of Transportation Federal Highway
read and introduced to the jury:                                 Administration Office of Motor Carriers with its
                                                                 “Commercial Vehicle Preventable Accident Manual”
        J. Communicating Your Presence                           which provides “A Guide to Countermeasures” is
                                                                 another excellent arrow to be placed in the liability
        Other drivers may not notice your                        quiver to be used as demonstrative evidence in
        vehicle even when it’s in plain sight.                   trucking cases. The trucking company’s own safety
        Let them know you’re there to help                       manuals, safety films and the Federal Motor Carrier
        prevent accidents.                                       regulations themselves are also useful tools in creating
        …                                                        excellent demonstrative evidence.
        When Parked at the Side of the Road.                              The driver’s trucking logs and the operational
        When you pull off the road and stop,                     documents (bills of lading, weigh bills, com-data
        be sure to turn on the four-way                          checks, fuel records, etc.,) all need to be organized and
        emergency flashers. This is important                    explained in a trucking case. These documents are
        at night. Don’t trust the taillights to                  almost always critical in a case trying to establish
        give warning. Drivers have crashed                       negligent retention. The fact that the truck driver
Trucking – Evidence & Demonstrative Preservation                                                                Chapter 4

habitually violates Federal Motor Carrier Safety                 S.W.3d 385, 396 (Tex.App.-Houston [14th Dist.] 2005,
Standards can be used to show the driver was a                   pet. filed) holding trial court did not err in failing to
habitual log violator and should have been terminated            instruct jury on negligence per se when there was no
long before the date of the injury made the basis of the         evidence that the failure (of the driver of the disabled
litigation.    The lawyer should introduce them and              truck) to set out roadside warning triangles as required
teach their relevance in a trucking case.                        by FMCSR was proximate cause of collision);
         In TXI Transp. Co. v Hughes, 224 S.W.3d 970             Freudiger, 104 S.W.3d at 297-98 (holding section of
(Tex. App. – Fort Worth, 2007) the survivors and                 FMCSR governing operations during hazardous
estates of occupants of a sport utility vehicle (SUV)            weather conditions did not create a special standard of
killed in collision with gravel truck brought a wrongful         care); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d
death and survival action against gravel truck's driver,         103, 124 (Tex.App.-Beaumont 2001, pet. denied)
gravel truck's owner and employer of driver. The court           (holding negligence per se instruction was proper in
found that the admission of the fact the truck driver            connection with         FMCSR's prohibition against
was an illegal alien was not error for the purposes of           employer knowingly allowing a person to operate a
impeachment. It also held however, the fact the driver           commercial vehicle without a commercial license);
was an illegal alien and did not have a valid social             Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427
security number were not a proximate cause of the                (Tex.App.-Houston [1st Dist.] 1990, no writ) (noting
collision. The court however found that the juries               without comment trial court's negligence per se
finding of negligent hiring was sufficiently supported           instruction arising from several FMCSR provisions).
by the evidence that the truck driver falsified his                       In Dalworth Trucking Company v Bulen, 924
application for employment with regard to his                    S.W.2d 728 (Tex.App.-Texarkana, 1996) a finding of
qualifications and this fact would support a proximate           gross neglect was affirmed in the context of an action
cause finding with regard to negligent hiring. The               arising out of a fatal motor vehicle collision involving
opinion is an excellent source with regard to the law            a truck driver who was retained despite a history of
regarding admissibility of accident investigation                safety violations, including over-hours driving
reports, admissibility of FMSCA rules and regulations,           violations. Evidence was presented from the trucking
and the duties owed by a commercial motor carrier.               company representative at trial that the truck driver had
         The Federal Motor Carriers Safety The                   over-hours driving violations on each of the four days
FMCSA specifically requires a motor carrier to                   preceding the wreck. He confirmed that repeated
conduct an investigation and to make inquires with               safety violations by truck drivers creates an extremely
respect to each driver that it employs. See 49 C.F.R. §          dangerous situation. He confirmed that the company
391.23, .23(d). Because of that a legal duty is owed to          managers knew about the safety violations but did
the public to adequately investigate a drivers                   nothing to suspend, terminate, or admonish drivers
qualifications to drive a commercial motor vehicle.              guilty in that regard. This type of evidence is powerful
Texas adopted the FMCSA, so motor carriers in Texas              proof of the subjective component or “extreme risk”
are specifically required to comply with it. Carriers            required to establish malice.
who are authorized for-hire interstate or intrastate                      The logs should be scanned and, at a
motor carriers under the Federal or State Act are                minimum, the driver’s activities over the past 70 hours
required to confirm its drivers possess certain                  should always be reviewed. Trucking logs for weeks
qualifications. The FMCSA specifically requires a                prior to the accident can be pieced together by scotch
motor carrier to conduct an investigation and to make            tape and joined end to end to show a driver’s sleeping
formal inquiries regarding its driver that it employs.           patterns to establish the fact that he is normally
See 49 C.F.R. § 391.23 (“each motor carrier shall make           sleeping at the time of the serious or fatal injury.
the following investigation and inquiries with respect           Trucking logs stretched out “end to end” 15-20 feet
to each driver it employs”) Under the Act, prospective           documenting the normal sleeping patterns “circadian
motor carrier employers “ must investigate, at a                 rhythm” of a driver can go a long way in establishing
minimum, the information listed in this paragraph from           “fatigue” played a part in the wreck.
all previous employers of the applicant that employed                     Lawyers sometimes forget that a car or truck is
the driver to operate a CMV within the previous three            a machine that comes with an owner’s operation
years.” Id. § 391.23(d). Failure to comply with these            manual supplied by the manufacturer.               These
rules and regulations can give rise to negligence per se.        documents provide safety warnings, instructions for
The case of Omega Contracting, Inc., v. Torres 191               use and rules of the road that can be used to establish a
S.W.3d 828, 839-840 (Tex. App. – Fort Worth, 2006)               breach of the appropriate standard of care. Don’t
offers an excellent discussion of admissibility of motor         forget to get the manufacturer’s owner’s manual
carrier regulations and whether violations of particular         applicable to the power unit or tractor being operated
provisions can be submitted to the jury as negligence            by the driver alleged to be negligent and you will often
per se. Also see: Reinicke v. Aeroground, Inc., 167
Trucking – Evidence & Demonstrative Preservation                                                              Chapter 4

find excellent sources of demonstrative evidence to be           reason not to obtain one for the applicable year you
used at trial.                                                   have a trucking wreck case. They make excellent
                                                                 demonstrative evidence by themselves or portions can
XVII. CHARTS AND DIAGRAMS DESIGNED                               be scanned and used to make individual exhibits.
         TO EMPHASIZE TESTIMONY                                  Additionally, the internet provides a way to obtain
         The admission of summaries of testimony is              inexpensive demonstrative evidence.
within the broad discretion of the trial court. Charts
and diagrams designed to emphasize the testimony of              XIX.   ENHANCE           THE     DRAMA          OF
witnesses are admissible into evidence and within the                   DEMONSTRATIVE EVIDENCE
courts discretion assuming the witnesses’ testimony is                  Enhance the effect of demonstrative evidence
already before the jury. Speier v. Webster College, 616          by a number of techniques:
S.W.2d 617, 618-619 (Tex. 1981). Also See Champlin
Oil & Refining Co. v Chastain, 403 S.W.2d 376, 389               1)     Cover it in opaque butcher paper or partially
(Tex. 1965). A trial court therefore was not in error in                translucent paper, depending on the effect you
excluding a chart of attorneys fees created to                          want. At the right point, tear open the package
summarize or emphasize a witnesses testimony. Such                      to show the surprise evidence inside.
a decision to exclude them was held not an abuse of              2)     Enclose evidence in clear plastic binders to
discretion and alternatively was determined to be at                    give authority. Presentation of this important
best harmless error. Schenck v Ebby Halliday Real                       demonstrative evidence should be a key part of
Estate, Inc., 803 S.W.2d 361 (Tex. App—Fort Worth,                      your early trial preparation.
1990). Similarly, a trial court does not abuse its               3)     Have key photographs placed on foam board
discretion by permitting evidence to be summarized by                   and add Velcro so they can be displayed
means of visual aid.         Prestige Ford Co. Ltd.                     without the help of another and so they testify
Partnership v. Gilmore, 56 S.W.3d 73 (Tex.App.—                         throughout the trial.
Houston [14th Dist] 2001. A “timeline” chart which               4)     Voluminous records should be bound and
summarized an expert’s testimony was found to be                        tabbed to make them easy to handle.
admissible in evidence in Uniroyal Goodrich Tire Co.             5)     With regard to certain key exhibits, make 14
Martinez 977 S.W.2d 328 (Tex. 1998). As referenced                      copies (one for your opponent, one for you, the
previously, the trial judge has wide discretion with                    original for the judge and 12 copies so each of
regard to this type of evidence.                                        the jurors have one). Then put it on a visual
                                                                        presenter, overhead projector, or have it
XVIII. LARGE MAPS OF THE UNITED                                         digitized and display. Even the screen can
         STATES, A PARTICULAR STATE OR                                  present drama with the right equipment. Jurors
         CITY.                                                          love gadgets that they have not seen before.
         Almost every vehicle collision case should                     Use them to add drama to your presentation.
include a map of the location of the wreck. If interstate        6)     Put the data on a jump drive and present it by
transportation is involved, a large map of the United                   plugging it into a USB port for added
States is a great piece of demonstrative evidence. I like               excitement or suspense – deliberately having
to put colored pins at major cities, road changes, or                   your computer crash is actually an attention
places that a trucker has stopped. Those points along                   getter if you can rehabilitate quickly and not
the trucking route are then connected with a different                  miss a beat.
color string for each day of travel. This provides a             7)     Remember it has to get up the stairs or in an
graphic means to analyze the 70 hour and 8 day rules                    elevator and design your exhibits accordingly.
as well as the 10, and 15 hour rules. The same can be            8)     How far is it? About 10 feet? (get out the tape
done with regard to intrastate travel by having a large                 measure).
blow up of a particular state or city. Rand McNally              9)     Subliminal       messages      “trail   blazer”,
puts out a Deluxe Motor Carriers’ Road Atlas                            confederate flags, bumper stickers, quotes or
described as America’ #1 Seller. This Atlas contains                    logos or C.B. handles on the side of a truck
more than simply roads. It contains information                         often tell the real story.
pertaining to low clearances, permanent weigh stations,          10)    Bigger is not always better. “Little” may
restricted routes, and denotes federally designated                     actually increase the chances the photograph
routes, road conditions and construction hot lines. It                  comes in and the use of a visual presenter can
also contains the latest trucker’s information, including               make it bigger than what one could carry
a handy reference to weight and size limits, hazardous                  through the courthouse door. By using “little”,
materials and longer combination vehicle updates, as                    it also reduces the risk of objection and the
well as portions of NAFTA, and Canadian and                             small photograph may contain key evidence
Mexican trucking regulations. There is simply no                        that you know will be an important part of
Trucking – Evidence & Demonstrative Preservation                Chapter 4

        your case that you don’t have to advertise to
        the other side until it’s too late.
11)     Use a “RED BOOK” (a red binder) in which to
        keep the Key Pieces of evidence.

         Demonstrative evidence is a key part of every
trial, especially so with regard to auto/truck collision
cases. It will enhance your stature with the jury. The
types of demonstrative evidence used are only limited
by the trial lawyer’s imagination. When words alone
are insufficient, demonstrative evidence can tell the
“whole” story and increase your chances for a winning
strategy. A picture truly is worth a thousand words and
can seamlessly join liability, causation and damages in
a single document. Hopefully, this paper will spark
your imagination to use demonstrative evidence more
effectively in the trial of automobile/trucking

Trucking – Evidence & Demonstrative Preservation                                                                                                              Chapter 4

                                                               TABLE OF AUTHORITIES
Beers v. Western Auto Supply at 815 .............................................................................................................................. 8
Boothe v. Hausler, 766 S.W.2d 788 (Tex. 1989) ............................................................................................................ 5
Champlin Oil & Refining Co. v Chastain, 403 S.W.2d 376, 389 (Tex. 1965).............................................................. 11
City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex 1995)................................................................................ 5
Cryts v. Ford Motor Co., 571 S.W.2d 683, 691 (Mo.App.1978).................................................................................... 8
Dalworth Trucking Company v Bulen, 924 S.W.2d 728 (Tex.App.-Texarkana, 1996)................................................ 10
First Employees Insurance Company v Skinner, 646 S.W.2d 170, 172 (Tex, 1983)...................................................... 7
Ford Motor Co. v. Nowak, 638 S.W.2d 582, 590 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.) ............................ 8
Freudiger, 104 S.W.3d at 297-98 ................................................................................................................................. 10
Garza v Guerrero, 993 S.W.2d 137, 140 (Tex.App.—San Antonio 1999, no pet) ........................................................ 5
Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla.1982) ........................................................................ 8
In re K.M.B., 91 S.W3d 18 (Tex.App.—Fort Worth, 2002) ........................................................................................... 5
Kainer v. Walker, 377 S.W.2d 613, 616 (Tex.1964)....................................................................................................... 8
Lopez v. Foremost Paving, Inc., 796 S.W.2d 473 (Tex.App.-San Antonio, 1990)..................................................... 7, 8
Lorusso v. Member Mutual Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980) ........................................................................ 5
Malone v Foster, 956 S.W.2d 573, 577 (Tex.App.-Dallas 1997) aff’d 977 S.W.2d 562 (Tex. 1998)............................ 5
McCormick; 9 A.L.R.2d 1044......................................................................................................................................... 1
N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 124 (Tex.App.-Beaumont 2001, pet. denied) ............................. 10
Perez v. Bagous, 833 S.W. 2d 671 (Tex.App.-Corpus Christi, 1992)............................................................................. 6
Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958)............................................................................................ 8
Prestige Ford Co. Ltd. Partnership v. Gilmore, 56 S.W.3d 73 (Tex.App.—Houston [14th Dist] 2001 ....................... 11
Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 396 (Tex.App.-Houston [14th Dist.] 2005, pet. filed)....................... 10
Richards v Commission for Lawyer Discipline, 35 S.W.3d 243, 252 (Tex App.-Houston[14th Dist.] 2000, no pet.) .... 5
Schenck v Ebby Halliday Real Estate, Inc., 803 S.W.2d 361 (Tex. App—Fort Worth, 1990)..................................... 11
Speier v. Webster College, 616 S.W.2d 617, 618-619 (Tex. 1981) .............................................................................. 11
Texas Dept. of Transp. v. Fontenot, 151 S.W.3d 753 (Tex.App.- Beaumont, 2004)...................................................... 6
TXI Transp. Co. v Hughes, 224 S.W.3d 970 (Tex. App. – Fort Worth, 2007) ............................................................. 10
Uniroyal Goodrich Tire Co. Martinez 977 S.W.2d 328 (Tex. 1998)............................................................................ 11
Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.-Houston [1st Dist.] 1990, no writ) ........................... 10
Other Authorities ................................................................................................................................................ 10
Misko, Videotape for Litigation, 26 So.TEX.L.J. 485 (1985)......................................................................................... 8
Witke, Higgins and Babcock, "Video Tape is Worth a Thousand Words": Use of Demonstrative Evidence in the
  Defense of a Product Liability Case, 50 Ins.Counsel J. 94, 97 (1983)........................................................................ 8 5 8 ....................................................................................................................................................... 8
Trucking – Evidence & Demonstrative Preservation                                                                                                                Chapter 4 .............................................................................................................................................. 8
Tex.R.Evid. 103(a)........................................................................................................................................................... 5
49 C.F.R. § 391.23, .23(d) ............................................................................................................................................ 10

Trucking – Evidence & Demonstrative Preservation                                                                Chapter 4

                                                   APPENDIX “A”

911 recordings -- Obtain the 911 tapes. Sometimes the most graphic emotional or other evidence can be obtained
from this source. If you don’t request it early, however, it may be lost in the ordinary course of business. It should
be a matter of standard operating procedure to obtain a copy of it if it’s available.

Cardboard Sheets -- Large pieces of white cardboard like foam board are better than a large tablet and can be used
in conjunction with foam boards to provide a different look on unique evidence. I have seen one type of board used
to present liability facts and another to present damages facts.

Foam Board -- White foam core boards look neat and crisp and provide an easy means to write on something and
stand up on their own without the need to tear off a piece of paper from a large tablet. Additionally, rather than using
2 foot by 3 foot foam boards all the same size, consider cutting one or two of the boards in half but using a zig zag
pattern rather then making each have a symmetrical copy of the other. On one side of the cut board can be liability
facts or liability documents affixed to it. The other side of the cut board can be damages images or facts. The board
can be dramatically joined at the close of the case to show how the evidence has been pieced together like a puzzle
and how the liability facts on one board gave rise to and “caused” the damages facts on the mated piece.

Magnet board -- The best piece of demonstrative evidence I bought almost 15 years ago was a magnet board that I
still use in almost any auto or trucking case I am involved. It contains a metal board and clear laminate sheets that
can be used to create scene diagrams and little magnet trucks, cars, signs, pedestrians, motorcycles, and a litany of
other magnetic objects to allow you or a witness to “make a scene” rather than “draw one”. Some lawyers tell their
clients NOT to draw a nice drawing or to make it very small so it is not usable. In my opinion, if you give a witness
a small car or truck they want to place it somewhere to show what happened insuring that you get the witness
committed to whatever his or her story is. A diagram truly helps summarize what the witness observed and a magnet
board has, in my opinion, been the best method to accomplish this in a consistent manner that is found persuasive to

Models -- Physical models of the scene to scale with vehicles drawn to scale are extremely helpful means of
documenting what witnesses observed. Whether it-s 3 dimensional or 2 dimensional, a model of the scene can be an
effective tool in telling your story to the jury.

News footage -- News footage can provide additional drama, including life flight images that are otherwise
unavailable from any other source, or points of rest of vehicles, that may not have been preserved. I use Pinnacle to
obtain news video.

Photos and Video -- With the advent of digital photography, the use of photographs and video to demonstrate or
document conditions has never been easier. I carry a digital camera in my computer bag. In a recent case, the issue
of a truck making a wide right turn became important. Driving down the road out of town I observed over a ½ dozen
different means to convey that a truck makes a wide right turn by large warning labels on the back of trailer or
depicted on the mud flaps. A series of quick digital photographs captured the industry custom and practice and
demonstrated what the carrier should have had on its fleet to warn against the unsafe condition. Digital photos can be
easily loaded into a Power Point presentation to effortlessly tell the story you are trying to convey. The quality of the
pictures taken with these cameras has all but reached the clarity and depth of those taken with regular 35 mm
cameras and has drastically reduced out-of-pocket costs on the small auto cases. Google Earth now provides an
excellent source for aerial photos of a scene and street views at ground level for certain major cities.

Positives of x-rays -- Positives of x-rays make it easier for jurors to see orthopedic injuries without the use of a view
box. They should be a standard part of the medical records requests and make excellent demonstrative evidence that
can be easily passed around the jury box.

Physical Property Wreckage -- Whether it’s a piece of the wreckage or the entire car or truck cut up and pieced
together in the courtroom, the use of this type of demonstrative evidence takes away the boredom of a long trial. If
the seat backs broke due to the collision forces, bring in the bent metal or fractured steel plates to emphasize collision
forces. A jury won’t have to speculate on why a the collision forces were adequate to cause the personal injuries to
the soft tissue or serious injuries that resulted in catastrophic injury or death.

Trucking – Evidence & Demonstrative Preservation                                                            Chapter 4

Websites -- The information highway provides all sorts of locations to obtain free demonstrative evidence. Whether
it’s digital depictions of the vehicles from the manufacturer, company logos, trucking company profiles from the
SAFER website or a litany of other information that can be downloaded from the web at virtually no cost, the web
provides a fertile source of obtaining helpful visual sources of information that add excitement to reduce the boredom
of a long trial.

Visual Presenter - Overhead projector – An Elmo (, Doar (, Panasonic
(, or other visual presenter should be a key part of any trial lawyer’s arsenal. They provide the
ability to enlarge and to focus on key pieces of 2D and 3D evidence at a moments notice.

Trucking – Evidence & Demonstrative Preservation                                                       Chapter 4

                                          EXHIBIT “A”
                             REQUEST FOR PRESERVATION OF EVIDENCE

       Please allow this letter to serve as a formal written notice that our law firm represents
___________________, in the truck-tractor collision which took place on ______________, in
_______________, Texas. Please ensure that all future correspondence and communications regarding
the above-referenced claim is directed through our office.

        Additionally, please accept this as a formal request to not alter, modify, or damage in any way the
(YEAR, MAKE & MODEL) Truck Tractor, alleged license plate number ______________, and (YEAR,
MAKE & MODEL)____________ towed trailer, alleged license plate number ______________ involved in
the collision. We are requesting that the vehicle be preserved in its entirety until we have an opportunity to
inspect, photograph and videotape the vehicle and download any electronic data that may exist. Please
contact my office to schedule a convenient time and place to do so. Also, if there were photographs and
other potential evidence obtained at the scene, please accept this as formal request to preserve those
materials until we have had an opportunity to independently document and examine them. As you may
already know, if there is any alteration to the vehicle, it is likely to be considered by a court or jury as
spoliation of evidence. As you also know, there are certain operational documents that should be
preserved as a matter of course when there is a serious personal injury or fatality surrounding an accident
involving a truck tractor.

        Also, please accept this as a formal request to produce the documents listed below. Any
destruction of the following records even in the ordinary course should be stopped and all records should
be preserved (all records pertaining to the truck tractor from 6 months prior to and including the date of the
collision need to be preserved). Any failure to do so or failure to acknowledge the willingness to do so
needs to be confirmed in writing immediately so that a temporary restraining order can be issued if

        1.     Maintenance Records and/or other documents regarding maintenance and/or repairs of the
truck tractor (DRIVER OF TRUCK/TRACTOR) was driving at the time of the collision;

         2.    All driver’s logs and/or driver’s log books and/or driver’s inspection records and bills of lading
for the truck tractor (DRIVER OF TRUCK/TRACTOR) was driving at the time of the collision;

       3.   All inspection reports from (5 years prior to collision) through the present for all inspections
performed on the truck tractor (DRIVER OF TRUCK/TRACTOR) was driving at the time of the collision;

        4.   All inspection reports from (5 years prior to collision) through the present for all inspections
performed on the trailer (DRIVER OF TRUCK/TRACTOR) was hauling at the time of the collision;
        5.   All bills of lading and all other operational documents relating to the load being hauled at the
time of the collision in question, including, but not limited to, pickup and delivery documents, freight bills,
weight and sale documents showing the amount loaded and when and any and all other loading,
unloading or detention records or other documents showing cargo pickup or delivery dates and times;

       6.    All trip and operational documents, including, but not limited to, trip reports; trip envelopes;
dispatch records; call-in records; work schedule reports; fuel purchased reports; distance traveled reports;

        7.     All documents pertaining to any and all repairs performed on the truck tractor and/or trailer as
a result of the collision in question;

       8.   Any and all documentation detailing data compilations for the following items derived and/or
obtainable from/through any device installed or mounted on the truck tractor (DRIVER OF
TRUCK/TRACTOR) was driving on the date of the collision:

         a.   Fuel mileage and/or oil consumption;
         b.   Shift patterns and/or out-of-gear operations;
         c.   Idle percentages and/or over-speed percentages; and
Trucking – Evidence & Demonstrative Preservation                                                    Chapter 4

         d.   Any other data derived.

        9.     All documentation, including e-mails, dispatch records, com data, GPS data and/or
transmissions and/or documents of any type, detailing all data derived or obtained from/through any on-
board computer or other device from the truck tractor (DRIVER OF TRUCK/TRACTOR) was driving on the
date of collision. This request includes data from (six months prior to collision) - present;

        10. All documentation detailing all data derived or obtained from/through any Global Positioning
System (GPS) or other such device which tracks or records a vehicle’s global position or whereabouts for
the truck tractor (DRIVER OF TRUCK/TRACTOR) was driving on the date of the collision. This request
includes data from (six months prior to collision) - present;

        If you are unable or unwilling to provide the information listed above freely and voluntarily, it is
certainly your right to do so at this stage, which would require us to file a lawsuit against your insured to
obtain the information that would otherwise be freely exchanged, as part of the written discovery process.
Nonetheless, I ask that it be preserved.

       I know the tractor and trailer have been moved to a separate facility by you or at your request. I
am not opposed to the tractor and trailer being preserved at a location of which you have control, again,
contingent upon insuring that there is no material alteration or destructive testing.
       Should you have any questions, please feel free to contact me.                 Thank you for your
professionalism in this matter and I look forward to hearing from you.

Trucking – Evidence & Demonstrative Preservation                                                       Chapter 4

                                        EXHIBIT “B”

        1.    A copy of any and all medical records on (DRIVER OF TRUCK/TRACTOR), to include
patient intake sheets, medical histories, examinations and testings, test results, assessments, doctor’s
notes, diagnoses, recommendations, treatment, admission and discharge summaries, and plans. This
request seeks data from two years prior to the collision to the present and all records pertaining to
treatment rendered as a result of the collision in question;

     2.  All pre-employment questionnaires and other documents secured from (DRIVER OF
TRUCK/TRACTOR) prior to employment;

        3.    Any and all completed applications for employment secured both before and/or after the
actual date of contract or employment of (DRIVER OF TRUCK/TRACTOR);

       4.    All medical examinations, drug tests and certification of medical examinations inclusive of
expired and non-expired documents relative to (DRIVER OF TRUCK/TRACTOR);

       5.     All of (DRIVER OF TRUCK/TRACTOR)'s annual violation statements;

       6.     All actual driver's motor carrier road tests administered to (DRIVER OF TRUCK/TRACTOR);

     7.  All actual         driver's   motor   carrier       written   tests   administered   to   (DRIVER   OF

         8.   All road and written test certificates issued by his employer or any other motor carrier or
organization to (DRIVER OF TRUCK/TRACTOR) regardless of the date issued or the originator of such

      9.    All past employment inquiries sent to or secured from former employers along with all
responses received from former employers inclusive of all written, personal contact or telephone inquiries
and results directed to or received by (EMPLOYER) from past employers of (DRIVER OF

        10. All documents relating to traffic violations and accidents pertaining to (DRIVER OF
TRUCK/TRACTOR), including inquiries and responses pertaining to traffic violations and accidents and
any driver's license records;

        11. Copies of all road or written test cards, medical cards, motor carrier certification of driver
qualification cards and any other motor carrier transportation related cards in the possession of
(EMPLOYER) regardless of card issuance date or origin, pertaining to (DRIVER OF TRUCK/TRACTOR).
This specifically includes cards, as previously described herein, issued by other motor carriers to (DRIVER
OF TRUCK/TRACTOR) or his co-drivers at the time of the collision presently in their or your personal

        12. All annual reviews, file reviews, or file summaries and related documents found in the driver
qualification file of (DRIVER OF TRUCK/TRACTOR);

       13.    All documents relative to any drug testing of (DRIVER OF TRUCK/TRACTOR);

       14. Any and all other contents of (DRIVER OF TRUCK/TRACTOR)'s driver qualification file
through the present, regardless of subject, form, purpose, originator, receiver, title or description;

       15. All trip and/or operational documents pertaining to the movement of cargo by (DRIVER OF
TRUCK/TRACTOR) and any of his accompanying co-driver(s) or driver trainers at the time of the collision
from (SIX MONTHS PRIOR TO THE COLLISION) through the delivery date and time of the cargo he was
transporting at the time the collision occurred. This request includes, but is not limited to, instructions and
Trucking – Evidence & Demonstrative Preservation                                                         Chapter 4

orders; routes to travel; trip reports; trip envelopes; dispatch records; call-in records; work schedule
reports; fuel purchased reports; distance traveled reports; reports pertaining to cargo transported,
including, but not limited to: pickup and delivery documents, freight bills, and loading, unloading or
detention records or other documents showing cargo pickup or delivery dates and times. This request
also includes, but is not limited to, receipts for any trip expenses or purchases made by (DRIVER OF
TRUCK/TRACTOR) or any co-driver during trips regardless of type of purchase such as fuel, weighing of
vehicles, food, lodging, equipment maintenance, cleaning or repair, special or oversize permits, bridge
and/or toll roads and loading or unloading costs;

        16. All accounting records for merchandise purchased, cargo transportation billings, and invoices
and subsequent payments or otherwise described records indicating billings for transportation of cargo or
payment for services performed for (EMPLOYER) by (DRIVER OF TRUCK/TRACTOR) and/or his co-
drivers at the time of the collision from (SIX MONTHS PRIOR TO COLLISION) to the present. This
request includes, but is not limited to, all initial or rough driver's trip check-in or financial settlement sheets
along with all final trip accounting documents, and computer generated documents or printouts showing
expenses and payment(s) for service(s) or salary paid to (DRIVER OF TRUCK/TRACTOR) in reference to
(DRIVER OF TRUCK/TRACTOR)’s trip(s). This specifically includes any summary type documents
showing all payments made to (DRIVER OF TRUCK/TRACTOR) and/or his co-drivers regardless of the
purpose of payment or period of time payment was made for;

       17. Copies of any and all motor carrier or driver created trip fuel mileage and purchase reports or
records pertaining to (DRIVER OF TRUCK/TRACTOR) and/or his co-drivers from (6 MONTHS PRIOR TO
COLLISION) through present. This specifically includes all documents and computer generated
documents, regardless of form or subject, received from any source such as the organization known as
"COMCHEK", or generated for or by (EMPLOYER) showing date, time and location of fueling or other
purchases by (DRIVER OF TRUCK/TRACTOR) and/or his co-drivers while on the trips requested herein;

        18. Copies of all checks or otherwise described negotiable instruments issued to (DRIVER OF
TRUCK/TRACTOR) or his co-driver(s) at the time of the collision from (6 MONTHS PRIOR TO
COLLISION) through the present, given in payment as trip advances, loans, or for any other purpose
inclusive of checks issued for employee payroll, and/or for owner/operator or trip lessor services in the
possession of (EMPLOYER) Specifically, copies of both the "front and back" of each check and/or
Comchek issued to (DRIVER OF TRUCK/TRACTOR), or any of his co-drivers is requested;

       19. All state fuel or oversize special permits and any related documents or requests issued to or
by any state agency to transport cargo over their territories regardless of the form of the permit from (6
MONTHS PRIOR TO COLLISION) through the present,. The receipt acknowledging payment for the
permit(s) issued by any governmental agency is specifically requested that relate to the movements of
(DRIVER OF TRUCK/TRACTOR) and/or his co-drivers during the requested time period;

         20. Any and all trip leases or trip lease contracts involving (DRIVER OF TRUCK/TRACTOR)
and/or his co-drivers at the time of the collision along with all related documentation issued to or created or
received by (EMPLOYER) from (6 MONTHS PRIOR TO COLLISION) through the present. Specifically,
this includes any trip leases negotiated between (EMPLOYER) and any other motor carrier or their drivers
inclusive of all related documentation thereto. Basically, "related documentation" consists of any
documents created or generated in reference to the trip lease(s) and in addition, driver's daily logs or
record of duty status, driver's daily condition reports, motor carrier certification of drivers qualification and
include other documents that relate to the billing and payment for such movement of freight, along with all
other types of documentation regardless of form or description that are relative to each occurrence
involving the services and activities of (DRIVER OF TRUCK/TRACTOR) and/or his co-drivers;

       21. A copy of the entire Personnel File, and/or any otherwise titled files on (DRIVER OF
TRUCK/TRACTOR) or in reference to (DRIVER OF TRUCK/TRACTOR)'s services, from initial contract or
employment with (EMPLOYER) to the present date, including, but not limited to Application(s) for
Employment, driver qualification files, attendance records, contracts, agreements, hiring, suspension,
termination, warning notices, evaluations, complaints, letters, memorandums, payroll or money advance
records, accident reports of any type, damage reports, driver inspection reports, traffic citations, traffic
Trucking – Evidence & Demonstrative Preservation                                                       Chapter 4

warnings, driving records, certificates, and any other documents pertaining to (DRIVER OF
TRUCK/TRACTOR) and any summary type generated documents (regardless of subject, description or
form) relative to (DRIVER OF TRUCK/TRACTOR) or the services performed by (DRIVER OF
TRUCK/TRACTOR). This request specifically includes any documents issued by any governmental
agencies or officials in reference to violations of any State or Federal Motor Carrier Safety or Hazardous
Materials Regulations that may have been issued in reference to the activities of (EMPLOYER), (DRIVER
OF TRUCK/TRACTOR) or his co-drivers or driver trainers from (ONE YEAR PRIOR TO DATE OF
COLLISION) to the present date;

       22. All objects, photographs, drawings, reports, statements or otherwise described documents or
objects in the possession of (EMPLOYER) in reference to the collision referenced above. This specifically
includes any and all reports and written or electronically recorded statements made to any person,
organization or governmental entity regarding the incident made the basis of this lawsuit;

        23. Copies of any and all other accident or incident files, documents and records maintained by
(EMPLOYER) in reference to any other vehicular accident or incident, prior to the occurrence of the
incident in question, where (DRIVER OF TRUCK/TRACTOR), or his co-driver(s), or driver trainer, was the
driver of a vehicle involved in the prior accidents or incidents;

        24. Complete and clearly readable copies of any and all (EMPLOYER)’s officers, executives or
administrator's notices, directives, bulletins, publications and manuals of any type or otherwise described
written instructions in reference to the day-to-day motor carrier operating and safety procedures to be
followed by their company personnel, managers, supervisors, dispatchers and drivers. Specifically, any
document relative to disciplinary policies or procedures for late freight delivery, motor fleet safety or failure
to comply with the FMCSR or State DOT requirements in existence and effective at (EMPLOYER) on

        25. Any and all photographs, videotapes, or other depictions of any vehicle or person involved in
the collision in question;

       26.    Any and all photographs of the scene of the collision in question;

      27. Any and all witness statements obtained regarding any aspect of the collision or the injuries
or damages resulting therefrom;

       28. Any and all documents relating to safety procedures and emergency procedures or manuals
concerning the operation, maintenance and repair of any semi-tractor or trailer in your company drafted or
in use since (TEN YEARS PRIOR TO COLLISION) to the present. This includes, but is not limited to,
operations manuals, safety manuals, employee manuals, directions for use of equipment, and all inter-
company and intra-company memoranda or correspondence regarding safety and emergency procedures;

        28. A color photostatic copy of the front and back of (DRIVER OF TRUCK/TRACTOR)’s current
driver’s license;

       29.    Please provide the following for the trailer involved in the collision:
               a. All maintenance reports and records;
               b. All repair orders;
               c. Purchase, regulation, and title information;
               d. Documents reflecting repair expenditures;
               e. All trip reports and log books;
               f. All records indicating the vehicle in question was involved in any type of collision;
               g. All records indicating the vehicle in question suffered damage for any reason;
               h. Any documents, records, or other data from any GPS system used to keep track of
                                vehicles, which relates to this vehicle;

Trucking – Evidence & Demonstrative Preservation                                                 Chapter 4

        30. (EMPLOYER’S INSURANCE POLICY on police report) # ______________ (including
declarations page, endorsements or riders and/or any other matter incorporated therein by reference (the
entire policy);

       31. Any and all other primary or excess policy applicable to the tractor or trailer or the premises
where the trailer was loaded or the fatal collision;

       32. All correspondence regarding applicable insurance coverage between (DRIVER OF
TRUCK/TRACTOR) and/or any agent servant or employee of (EMPLOYER), and (EMPLOYER’S
INSURANCE CARRIER) as well as any other insurer (primary or excess). This also includes any notices
to any CGL carrier;

     33. All records regarding previous collisions involving (DRIVER OF TRUCK/TRACTOR) or

     34. All records regarding previous reportable accidents involving (DRIVER OF

     35. All records regarding previous injury accidents involving (DRIVER OF TRUCK/TRACTOR) or

       36. All records regarding pre-trip inspections performed on the tractor or trailer by any agent,
servant or employee of (EMPLOYER), on (DATE OF COLLISION).

       37. All records regarding pre-trip inspections performed by any person on the tractor or trailer by
any other person, on the date of the collision;

      38. All records regarding post-trip inspections performed on any (EMPLOYER) vehicle driven by

       39. All records regarding post-trip inspections performed by any person on the tractor or trailer
involved in the fatal collision on (DATE OF COLLISION).

      40. All records ever obtained by (EMPLOYER), of (DRIVER OF TRUCK/TRACTOR)’s previous
moving violations and employment history;

        41. All records ever obtained by (EMPLOYER), of (DRIVER OF TRUCK/TRACTOR)’s previous
“points” accrued or incurred;

       42.    All records of (EMPLOYER), of (DRIVER OF TRUCK/TRACTOR)’s training;

       43. All records of (EMPLOYER), of (DRIVER OF TRUCK/TRACTOR)’s experience in the use or
operation of a commercial motor vehicle, loading or unloading trailers, properly securing or tying down or
strapping loads he was required to haul;

       44.    All (EMPLOYER) policies and procedures regarding driver safety;

       45.    All (EMPLOYER) policies and procedures regarding avoiding accidents;

       46.    All (EMPLOYER) policies and procedures regarding driver qualifications;

       47.    All (EMPLOYER) policies and procedures regarding accident investigation;

       48.    All (EMPLOYER) policies and procedures regarding drug testing at any time;

       49.    All (EMPLOYER) policies and procedures regarding alcohol testing;

Trucking – Evidence & Demonstrative Preservation                                                         Chapter 4

       50. All (EMPLOYER) policies and procedures regarding compliance with FMCS Regulations and
Rules or with Texas or Federal DOT requirements in the use, operation, or loading and securing of loads
of a commercial motor vehicle;

       51.    The complete maintenance history of the tractor and trailer involved in the accident;

       52.    The complete out-of-service history of the tractor and trailer involved in the accident;

         53. All damage estimates regarding any and all property damage incurred as to the tractor and
trailer as a result of the collision;

       54. All evidence of compensation to (DRIVER OF TRUCK/TRACTOR) for the 6 months
preceding the collision;

        55.   All toll receipts or weight tickets for the 4 weeks preceding the collision and the date of the

        56. All fuel receipts of (EMPLOYER) for vehicles operated by (DRIVER OF TRUCK/TRACTOR)
and/or fuel receipts of (DRIVER OF TRUCK/TRACTOR) for the 4 weeks preceding the collision;

        57. All lodging receipts of (EMPLOYER) for the 4 weeks preceding the collision regarding the
tractor or trailer or vehicles operated;

        58. All reimbursement requests of (DRIVER OF TRUCK/TRACTOR) for the 4 weeks preceding
the collision;

      59. (DRIVER OF TRUCK/TRACTOR)’s log books, records of duty status, and time sheets for the
6 months preceding the collision;

     60. All training materials and/or safety documents ever provided by (EMPLOYER) to (DRIVER

     61. All documents demonstrating any and all types of driver testing ever conducted by

       62.    The results of all drug and/or substance tests regarding (DRIVER OF TRUCK/TRACTOR);

         63. Any and all bills of lading and purchase orders and any and all other documents of any kind
reflecting who purchased any product that was loaded onto the trailer that was being hauled on the date of
the collision. This includes any fax transmissions confirming the order, any invoices, and/or other
documents reflecting the items purchased and/or the terms or conditions of the purchases;

         64. Any and all records of annual inspections or any other type of inspection of the tractor and/or
trailer involved in the collision, including any records of the entity or entities that performed the inspection
of the tractor and/or trailer prior to the collision;

       65. Any and all cell phone or pager or dispatch records applicable to (DRIVER OF
TRUCK/TRACTOR) or the company he was hauling the load for. This includes (DRIVER OF
TRUCK/TRACTOR)’s personal cell phone records and the phone records of any phone he had actual or
constructive use of or access to at the time of the collision. This also includes any documents and
electronic files or digital data that would show the persons he called, received calls from, or to whom he
received or left messages for, on the date of the collision. This includes preserving any voice messages
on the date of the fatality regarding the wreck both pre and post collision for the entire date of the wreck;

      66. All electronic data from any electronic event recorder, tacograph, GPS system, or other
computer or system that is designed to capture or document any of the operations or activities of the

Trucking – Evidence & Demonstrative Preservation                                                     Chapter 4

driver, trailer, tractor, and/or load. This includes any data from any source whether on the tractor, trailer,
or any hand-held or vehicle-mounted devices;


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