By Brian White, Texas Attorney
Disregard of a traffic control device (failure to stop at a stop sign, failure to stop at a red light, or failure to clear the intersection on a yellow light) is the number one case of intersection auto accidents. In order to recover from the at-fault driver's auto insurance, it is important to show that the other car was at fault. However, in many instances, both drivers report to the police that they had the green light.
If there are no witnesses and both drivers report that they had the green light, the investigating officer will likely include in the report that both drivers’ failure to stop at a red light contributed to the accident. Unfortunately, the law-abiding driver will most likely have a very hard time convincing the at-fault driver's insurance company that it’s insured was at fault and they should pay the claim. However, it is possible to overcome the misremembering (or outright lie) of the at-fault driver and obtain a recovery.
Don't wait for the claims adjuster. After all, the at-fault driver is not only misrepresenting him/herself, but they are also attacking your credibility. In cases where both parties claim that there was a green light - somebody is either mistaken or lying. Unfortunately, most green/green light cases will need to be litigated. This is because stubborn insurance adjusters are difficult, if not impossible to convince in these situations to accept the auto insurance claim. What auto insurance adjusters are unable to grasp is that you don’t have to prove your case beyond a reasonable doubt. Nowhere does the law say that you need 100% proof. However, many times, that is what car insurance claims adjusters tell you they need before they will accept liability.
As the saying goes, a good offense is a good defense. In other words, don’t do anything foolish to hurt your credibility. Always remain professional and never let your emotions get the better of you.
Do not consent to a recorded statement. The other driver's insurance adjuster will likely state that they need to take a recorded statement before they can make a determination of liability. If they just need to get information from you, then why do they need to record the phone call? The answer is that they don’t. Recording the phone call is only used for one purpose - impeaching you at some point down the road.
In many cases, we have found recorded statements where the person did not realize the question that was being asked or how their answer would read on a transcript. Adjusters are trained and have a great deal of experience in obtaining favorable recorded statements and use this as a tool to get out of paying a claim. If the adjuster insists upon taking a recorded statement, you should stop playing by their rules and hire an attorney.
Many attorneys file lawsuits in green/green motor vehicle accident cases. This is because they want to get in front of a jury and have the rules apply - including the applicable burden of proof. In civil litigation matters, plaintiffs have the burden of proof. In other words, they must prove their case. In order to recover from the at-fault driver, you must prove that it’s more likely than not that your version is correct. In other words, you don’t have to convince a jury that your version is correct; you only have to get them to believe that there is a 51% chance that your version is correct. (It is sometimes extremely difficult to get the jury to follow the instructions and apply the correct burden of proof - however, skilled trial attorneys have experience in addressing this challenge.)
So, contrary to what an insurance adjuster may tell you, in order to prevail, you must show that its more likely than not that the other car ran the red light. To do that, you'll need some evidence.
The first method of exposing the at-fault driver is to check and see if there is a traffic video camera at the intersection. If there is, the footage must be requested via a Freedom Of Information Act request immediately. Most traffic cameras will only keep recorded video for 20-30 days, and many times, the custodian agency will send you the wrong intersection or wrong time for your first request. By the time you get the wrong footage, you’re out of time to get the correct one. This is why this is the first thing that must be done.
In more serious cases, it is necessary to retain the services of an accident reconstructionist expert. These individuals are qualified to analyze the crash and the location, and draw conclusions about what happened. In some instances, they are able to give strong opinions based upon scientific data that the other car ran a red light.
However, most cases do not justify the expense of an accident reconstructionist that charges several thousand dollars or more for their services. In many cases, the plaintiff’s lawyer will have to fill the role of an accident reconstructionist. While an attorney cannot give opinions like the accident reconstructionist expert, he or she can, in many instances, analyze the location of the collision in the intersection, the location of the damage to the vehicles, the severity of the damage, skid marks, and the story given by each driver, in order to show fairly convincing evidence that the at fault driver isn’t telling the truth.
For example, in a case where the law abiding driver was waiting at a red light, started to proceed when the light was green, then was struck in the driver's side by the at fault driver - the location of the accident tells a large part of the story. In that situation, the collision will happen just several feet from the dutiful driver's entry of the intersection, and many feet from the entry of the intersection of the other driver. The at-fault driver should be vigorously questioned about all of those facts in order to draw out inconsistencies in his story.
In many cases in which no video or witness is available, a devastating cross examination of the at-fault driver will be sufficient to prevail. In order to conduct an effective cross examination, a criminal and civil background check must be conducted on both drivers. The plaintiff's attorney will ask the at fault driver questions about their background under oath. While much of the subject matter of those questions is not relevant, to the extent that the other driver lies under oath, credibility is always relevant.
For this reason, the dutiful driver must NEVER lie about anything. Lying about anything, even things that are embarrassing and not relevant to your case, is the best way to ruin your case. After all, this is a credibility contest. Lying, even about something completely irrelevant, only helps the opposition. An attorney will often investigate prior employment, marital history, and many other aspects of their opponent’s life before conducting their deposition. In many cases, the at-fault driver will lie or attempt to conceal a great deal of information, which can be used to show that they lack credibility.
This is one of those scenarios where having an attorney really helps.