Negligent Filing: Sloppiness or Spoliation?

In the planning, design and operation of public transportation systems, the spectrum of decisions and functions that can be performed negligently or recklessly is vast. One function rarely if ever characterized as negligent is filing. But it might as well be. Many defendant’s lawsuits turn sour when their management cannot prove things that they claim occurred because they did not maintain the documentation associated with it.

Without proof, defendants are left with testimony and speculation. Much of the testimony between plaintiffs’ and defendants’ witnesses is referred to as “he said/she said.” The value or credibility of testimony so characterized can be fragile, and its credibility whimsical. So the absence of documentation to support a defendants’ claims can tip the scales in favor of the plaintiff.

Depositions and Documentation

Packing a fictional lawsuit into the 44 non-commercial-filled minutes of Law & Order or Boston Legal does not provide the time to include depositions. Yet depositions – sworn testimony by the parties, their witnesses and, in most states, their experts – are the heart of lawsuits. Depositions are taken before trial partly for learning purposes, and partly as a mechanism to induce a settlement by pointing out the relative strengths and weaknesses of the respective parties’ cases, witnesses and experts.

To those individuals actually deposed, depositions can be nightmares. Witnesses unaccustomed to having their depositions taken – particularly accident victims, eyewitnesses and drivers – are often not clear about where their observations end and where their extrapolation about these observations begins. And they cannot remember what they testified to minutes later when asked about it once again – even though their counsel may try object as “asked and answered.” A principle strategy of defendants’ attorneys is to exploit this confusion, force the witness into acknowledging the contradiction (or exaggerating even more to avoid doing so), and expose the discrepancies, real or merely inarticulate. This strategy is far less effective when the plaintiff introduces a more articulate and savvy expert to straighten things out.

Plaintiff’s attorneys make similar efforts to exploit the shortcomings of drivers. However, drivers are usually poorly-paid, often victims of poor monitoring and thin management, and typically working-class laborers with whom jurors may sympathize. And they rarely have any serious assets or insurance of their own – although they convey liability to their employers through a doctrine known as respondeat superior. For these and other reasons, plaintiff’s counsel are generally more interested in what management personnel have to say about the driver’s and system’s performance. Not only are these the individuals “in charge,” but they are the individuals responsible for filing the paperwork. Filing therefore becomes critical: Where documentation supports witness testimony, that testimony becomes credible. Where documentation does not, its absence suggests that the testimony was false. To jurors, credibility is everything. After all, if a witness is not telling the truth about something, why would he or she tell the truth about anything?

Sucker Questions and Sucker Answers

In response to any number of issues, particularly about driver training, monitoring and evaluation, question-strings like this are typical:

  • Q: Can you prove that your driver attended the training session you just told me about?
  • A: Yes.
  • Q: How?
  • A: All attendees must enter their signatures on a sign-in sheet.
  • Q: What is done with this sheet after the session is over?
  • A: We make photocopies and drop one into the personnel file of every driver on the list.
  • Q: Do your drivers sign an acknowledgement when you give them training materials?
  • Q: Yes.
  • Q: In preparation for this deposition, did you bother to review the driver’s personnel file?
  • A: Of course.
  • Q: Well, when you reviewed this file, did you notice the signed acknowledgement that appears, in blank form, on the first page of the training manual?
  • A: Er, um, uh, well, actually, I say ‘no.’

Deponents trapped in such question-strings generally know they are sinking before the water level reaches their knees. Shrugging one’s shoulders, and feigning surprise that a driver’s personnel file does not contain the documents your company’s own policies state it must, are generally not convincing responses. If the activities about which you testified are a fantasy, you will obviously not have any documentation that they occurred – unless you created it, fraudulently, after the incident for which it would likely come in handy. Otherwise when asked to produce this documentation, you will have few choices other than shrugs or clichés – “I do not recall” being the most common and least effective. But if your company actually provided the exhaustive training about which it waxed in its proposal, you will pay an extraordinary price for your failure to simply file and maintain proof that your management and drivers actually received it. Jurors and even experts may have trouble sorting out the truth. But a tie generally goes to the plaintiff.

Rolling the Safety Dice

Here are the answers:

  1. Sleeping
  2. Eating
  3. Bathing
  4. Commuting
  5. Banking
  6. Filing
  7. Reading

Here is the question: If your management is overworked, underpaid and short on time, guess which two activities on this list he or she is likely to skip?

If you expect to succeed in court, other than by happenstance, make sure you employ enough staff to read and file information about the planning, system design, management, training, monitoring and other operating functions for which you will be held responsible. If you do indeed employ the staff to properly perform these functions, and expect to win in court when a passenger is killed or injured, you better engage someone who will answer the phone saying: “Hello. My life is filing.” For if filing is not part of your company’s operating life, it is likely to become part of its litigation death.

Silence and Sound

One of the characteristics of good music, whether written or improvised, is the use of rests. In composing or improvising, the absence of information at selected moments is interpreted as a conscious and meaningful choice – not simply a reflection of the composer running out of time or a woodwind player running out of breath. But in a driver’s personnel file, the lack of specific documentation is often interpreted as evidence that the activities they would otherwise represent never occurred, or that the documents referenced were never provided.

The scoundrel who soaked up thousands of hours of your spare time because his products work sporadically, and who transferred thousands of billions of dollars of our labor to his coffers to create a “paperless world,” has long since found himself in court in countries on every continent where his attorneys were “papered” into oblivion. By facilitating the means of storing and reproducing an endless stream of administrivia, this hero has doomed us to collecting and retaining a forest of paper. But retain it you must if you are to survive the U.S. litigation environment. Next to perhaps dishwashers and jockeys, judges – effectively attorneys at the very pinnacle of their careers – are among the least likely class of individuals to be computer-literate. Nowadays, even successful hookers have palm pilots. If you go to court, you will need paper.

Safe not Sorry

In our often cramped operating quarters, none of us can excuse our failure to find things by claiming we are the real Oscar Madison. More typically, documentation is scrambled and in disarray because we do not have the time to sort and compile it, and do not have the space to file it. But this failure can be more problematic in a lawsuit than the negligence that selected documents might otherwise help refute.

To be safe rather than sorry, obtain written acknowledgements of every document handed out, and every training session ever attended. Retain drivers’ logs, completed pre-trip inspection forms, incident reports, accident histories and every shred of correspondence related to the history of every driver you employ. If some obscure passenger forwards a commendation on a cocktail napkin, make sure you file it. If you learn that the police found 50 children’s dead bodies under your driver’s porch, file evidence of that as well: Do not let opposing counsel suggest you were the last to know. If your counsel is shady and foolhardy, you can always shred some of these documents later – although this is an unethical and dangerous practice whose backfiring can sink you like a stone. Otherwise, if your drivers’ files are not swollen with documentation, the empty spaces may speak volumes about the quality of your operations and the degree to which you care about them.

Keepers and Finders

Rightfully criticized about my book reports in elementary school, I remember being accused of selecting books by weight. Luckily I did not have to defend my choices in court. More luckily, I outgrew these habits. But I make my living largely in lawsuits. So, to coin a cliché that technical experts are typically required to assert, I can say with a degree of professional certainty that is it no fun to learn that one of my attorneys’ transportation clients has no proof to support the glowing hyperbole expounded in its proposals, marketing materials, policy documents and training manuals.

Here is the answer: Shepherds, Chimney Sweeps, Typewriter Repairmen and Filing Clerks. Here is the question: Name four professions that have disappeared in modern America and identify which one we still need more than ever.

If you expend countless dollars purchasing and maintaining terrific vehicles and equipment, and tireless energy obtaining, retaining and training the best drivers you can find, make sure you keep the proof of it. In life, finders are not always keepers. But to survive in court, you must keep what you claim you found.

Publications: National Bus Trader.