Accidents and going to court
Thursday, April 13, 2017
Posted by: Brett Tkacks (#189439)
NOTE: This column originally appeared in the May, 2013 issue of Owners News. Some material may be out of date. If you are at all concerned about the material in this column being up to date, please contact an attorney.
As a full-time professional motorcycle trainer and experience as a witness in court, I have some observations that will help prepare you for your day in court. In preparing for testimony in a motorcycle accident case, we first need to clarify some points. Understand first that not all motorcycles accidents were the fault of the rider. Next, that suing a state, county or municipality is different than suing the individual who ran the red light or made an illegal left turn. When you sue a state, county or municipality, unlike when you sue an individual, you must prove the accident was not due to a lack of riding skill, but rather caused by failure of that governmental entity to meet their responsibility in properly maintaining roads or the road environment.
The unfortunate reality is that statistically most of today’s motorcycle fatalities are not multi-vehicle accidents where the other vehicle is at fault. Statistically motorcyclists die more often in corners than in intersections. So assigning fault can be problematical. I have investigated cases where the motorcyclist could not avoid the accident. However, let us face it. It is better to avoid an accident than spend time in court suing for compensation, as this cuts into your riding time!
It is from this experience within the legal system, as an expert witness, that I wish to share some wisdom on how you can protect yourself and effectively present your case in the unfortunate situation that a motorcycle accident should go to court. Keep in mind I am not a lawyer and this is not legal advice. It is simply my observations.
The job of an expert witness is twofold: 1) To present expert testimony to defend riders who are “in the right,” and 2) To present expert testimony to protect car drivers from a rider who was “in the wrong.” Since I make my living outside the courtroom, I am at liberty to consider only those cases where my testimony will have value added and serve justice. Whether I am protecting a rider or protecting the wrongly accused car driver, my process is similar. What I do is collect all the evidence and proof available to show the rider was a well prepared and a safe rider, or conversely identify those who were inexperienced, were high risk or had questionable abilities and attitudes. If I am on your defense team I will be your best ally. However, what you have done prior to the accident can make or break your case in court. If you are in the other side of the courtroom, my job will be to throw your reputation, skills and judgment as a rider into question.
Again, I am not a lawyer, and this is not legal advice. But as one rider to another, here are the things I recommend you do to provide yourself the greatest ability to protect your rights.
Some training courses worth looking at
- Sue the person/agency/business that is at fault: Often I am in defense of a third party being sued. This is often a government agency or business that was pulled into the suit by an obscure association with the accident. Lawyers normally pursue these cases in a shotgun approach, meaning they sue anyone they might possibly get money from and always go for the “deep pockets.” The greater the monetary settlement they get, the more they make in fees, so they do not really care whom they sue. If I am called as an expert witness in one of these third party suits, my testimony may discredit you as a rider to protect my client, but inadvertently this may also protect the person(s) who are truly at fault. Sue those truly at fault and you will never see me in court, but sue those who are innocent and I will be there. (Your attorney is likely going to disagree with this point of view.)
- Keep your mouth shut: What you say to the police, and others, will be reviewed by all parties involved. Make sure you stay consistent in your account of the accident. Enhancing your story beyond the facts can ruin the strength of your case, and making inaccurate statements during deposition is an easy target for any lawyer. Keep to the facts. Know what you are talking about; often it is the lack of knowledge that makes you an easy target, and never speak to any attorneys other than your own without counsel. That is why you hired them.
- Be legal: This should be a no-brainer. If you are riding outside the law (no motorcycle endorsement, no insurance, speeding, and so on), you are an easy target. All of these behaviors show a wanton disregard for personal safety, laws and other road users.
- Have insurance: This may not offer a great advantage for the expert witness, but having insurance will protect you, and it is one more element to build the case that you are a responsible rider.
- Wear good riding gear: What you wear will reflect on your personal acceptance of risk and awareness of the hazards of riding. I did not take one case for a defendant partially based on the rider’s choice of motorcycle and gear. This particular rider was a victim of a left-turning car. Although the rider was on an RC51 sport bike, he had a history of owning a variety of high-end bikes, such as BMWs and Ducatis, and he was wearing high-end gear such as Arai, Alpinestar and Dainese. This showed a serious commitment to self-preservation and risk awareness. He had also had a history of continuous training and had attended several track schools (formal training). In addition, he was properly licensed, insured and with a clean driving record. This, combined with doubts about the fault level of the car driver, caused me to politely decline the case.
- Get trained: I cannot stress the advantage of having enough advanced training. Not only will the skills help you avoid an accident, but also it makes a strong case that you are a skilled, responsible rider. Taking an MSF or state-sponsored safety course to earn your license is a good starting point for any rider, and it also helps in your defense. This positive factor can be easily discredited if you do not continue to more advanced training. Repeating the same training year after year, such as the MSF ERC, is better than nothing, but varied and progressively more advanced training is always the best strategy. If you want to make yourself rock solid, the best strategy is to seek out regular training (every two years is a minimum recommended) that allows diversification of your skills. Courses like Lee Parks Advanced Riding Clinic, Team Oregon’s Advanced Rider Training (held on a go-kart track), Puget Sound Safety’s Advanced Street Skills (a cornering program for street riders held on a racetrack) or MSF’s advanced skills programs demonstrate you have taken your riding to a higher level. It is hard to put your riding skills into question when you have regular diversified training. (The 2013 BMW MOA Rider Performance University will have a rich selection of courses available this year at the Rally in Salem, Ore.)
- Stay fresh and maintain your bike: Showing you ride on a regular basis, and that your bike has regular maintenance with quality tires, and so on, can be helpful.
- Hire professionals early: Too often, I am brought into a case two or three years after the accident. This makes it difficult to get the needed photographs and technical information. Information needed such as: road conditions, tire age, bike condition, and so on, information critical to defend the rider fully. If you have an accident, get photos, get witness statements, make note of the conditions, whatever information might have value later.
About the Author
Bret Tkacs is a 16-year veteran of the motorcycle training industry and is a certified instructor by the Motorcycle Safety Foundation (MSF), Washington Motorcycle Safety Program (WMSP). He also operates the Puget Sound Safety (PSS) and Puget Sound Safety Off-Road program (PSSOR), as well as the Lee Parks Advanced Riding Programs. He has authored multiple motorcycle training programs, including Adventure training camps for GS riders, Puget Sound Safety’s Advanced Street Skills program and the Motorcycle Mentor Training Program for the United States Army Special Forces Command.
Originally published in BMW Owners News in May 2013.