Chapter 1

The Investigation

Broadly speaking, the law enforcement officers I’ve encountered want to do a great job, just as anyone else who cares about their work does. And when an incident results in a death or catastrophic injury, law enforcement officers are usually among the first people summoned to assist. But as with anyone else, their ability to do a great job is bounded by their training, their experience, and the nature of their responsibilities. And that is why I say that depending on the police alone to investigate a fatal or catastrophic incident involving your loved one amounts to playing the lottery.

The police officer who came to my sister’s house told her that our mother had been hit and killed by a car. The next day, we began to suspect that might not be exactly the case, and two days later, we knew it for sure. The truth began to emerge only by chance: one of our neighbors in Denver had a friend in Winter Park, Florida, who called her attention to a social media post about a pedestrian who had been hit and killed by a concrete mixer truck there.

The fact that a concrete mixer truck was responsible for my mother’s death wasn’t the only thing we determined on our own. There was also the specific location where my mom was killed: a busy intersection not far from her home in Winter Park. And the time of day too: at 4:50 p.m., about five hours before my sister was notified.

When I got the Winter Park police officer on the phone the day after my mom was killed and asked for more information, she told me the incident remained under investigation. It would be another day or so, she said, before they would be ready to sit down with us.

My purpose in sharing this is not to fault the Winter Park police. When we did meet, they told us they had withheld the fact that a concrete mixer truck was involved because they didn’t want to make the tragedy of our loss any harder to bear. Like anyone else, they were trying to do a great job.

But for the family of the victim, there’s anguish in not knowing. Learning as much information as soon as possible about the how and why can be very important to family members after a tragedy happens. And that is not the only consequence, especially if the other party involved is a commercial entity, like a trucking company. The evidence you will need to hold them accountable is fleeting, and you can’t always count on the police to gather it for you. What’s more, the commercial entity probably understands the fleeting nature of evidence too and can be quick to gather it in order to protect its own interests.

Immediately after calling the police, the driver of the truck that killed my mother did what he was supposed to do. He reported the accident to the dispatcher or a safety officer at his company, which happened to be one of the largest concrete truck operators in the United States. As it happened, the driver had just finished dropping concrete at a major construction site served by multiple trucks about three blocks from where my mom was killed. Within an hour, if not sooner, the company had its own representative on the scene—and the police were no longer the only ones talking to witnesses and gathering evidence. And of course, it would be hours before my family was even notified, and days before the police told us that a commercial truck was involved.

We were fortunate in this one respect: because of the work I do, I knew the consequences of relying entirely on the police and their investigation. Thankfully, my law partner took responsibility for finding our own answers, leaving me to focus on my family. He reached out immediately to law firms in Florida we’d worked with before and got in touch with an accident reconstruction engineer and a private investigator they recommended, who headed directly to Winter Park.

The Randomness of the Police Response

If something bad happens to a loved one in New York City, the investigation is probably going to be led by a detective or specialist with considerable experience, simply because of where it happened. If the same event occurs in a rural area or a small town, you may find there are only a handful of officers on duty and that the one who’s sent out to start securing evidence at the scene has never done it before, or has done it as infrequently as once a year. It’s not the fault of the law enforcement officers. That’s just the reality of the situation. Some departments share jurisdiction and can call on state police or highway patrol officers who have more experience. But the lead investigator within a particular department in the event of a catastrophic death or injury is most likely going to be determined by who happens to be on duty when the event occurs. That is why I say it’s a lottery.

The Fleeting Nature of Evidence

You could slip on a sidewalk and suffer a serious injury—or even be killed—but typically in our society the most severe accidents involve motor vehicles. And when a crash occurs, there’s physical evidence left that can tell the story of what happened. It’s right there on the roadway: the position of the vehicles, skid marks, debris, lane markings, traffic lights, and the condition of the road in the weather. That is why the police close the roadway right away: to secure the scene and the evidence to be found there. And from the moment the event occurs, that evidence begins to dissipate. Time is of the essence.

The first thing investigators try to determine is where the impact occurred. They’re looking at crush damage, the position of vehicles and debris. Then, they want to back up in time. Where were the vehicles a half-second before impact? One second? Three? Five? What can skid marks tell them about how fast a vehicle was going and whether the driver tried to stop? All of this is reconstructed through an accident investigation with the help of technology, and there’s nothing automatic or infallible about it. If investigators get the point of impact wrong, then the rest of the data may be wrong.

Why would evidence dissipate? Consider the weather. Is the road wet? Is it snowing and slippery? Beyond weather, the biggest impact on physical evidence comes when the police open the road again. Streets have to function; traffic needs to flow; we’ve all got places to go. The police need to gather the evidence they need as quickly as they can, so they can reopen the road.

Witnesses are often the first to reach the driver and ask if they’re okay and what happened; that makes what the driver told them important. If it’s an at-fault driver in a catastrophic accident, what they say initially may be very different than what they tell the police who arrive in a patrol car three, five, or ten minutes later. And witnesses won’t linger at the scene forever. Some will walk away without even giving their names, never mind a statement.

These days, data evidence is very important. Many intersections have cameras; so do businesses and residential doorbells, Uber drivers, and taxis. All these cameras have limited storage, and eventually, they’ll record over themselves, whether it’s in one day or fifteen. If the footage isn’t secured in that time, the video is lost forever. Vehicles now carry the equivalent of black boxes, called ECMs, that are constantly recording variables such as speed, braking, and airbag deployment. They may capture the last fifteen or twenty seconds before an accident occurs—but once the vehicle drives off, that data can be overridden too. Some police departments may not know how to download the data; how this is done can vary from vehicle to vehicle.

In our case, the concrete truck company told the police not to worry, that they would take the vehicle, park it, and download the black box data. Maybe that was fine—but I was certainly concerned when I learned it. You’d prefer that the police impound the vehicle and tow it away themselves to secure any evidence, but they may not.

Goals and Intentions

It’s also important to understand that everyone involved in an investigation does not share the same goals and intentions.

If the victim is dead, of course, they can’t speak for themselves, and the same may be true if they’re catastrophically injured. And of course, there’s always the possibility that the police will determine your loved one was at fault.

The police are trying to determine fault—and whether a crime has been committed. That means they’re asking a specific set of questions, based on the circumstances and the criminal laws that the police are empowered to enforce. Their responsibility is to protect the interests of society at large, not those of the individual victim.

The person who caused the event is likely to recognize that they’re in jeopardy and act out of self-preservation. We might like to think they’d admit they’re at fault and responsible, but that just doesn’t happen very often.

Again, that is especially true if the other party is a commercial entity. In the event of a crash, the goal of a sophisticated company is limiting financial consequences to owners and shareholders. You probably have no plan in place for coping with the unexpected because it’s unexpected. But large commercial trucking and fleet owners know that accidents are foreseeable. Drive enough miles, and accidents will happen. So, these companies, and their insurance companies, have plans in place to put teams of people on the ground immediately if they need to. While you’re still stunned and trying to figure out the basics of what happened, they’re actively working to protect their interests.

Choices...