Litigation

Fletcher & Sippel faces the crucible of litigation daily, from the most routine personal injury claims to high-stakes commercial litigation.

Our litigators routinely take personal injury and commercial cases to trial and obtain successful verdicts. We are on the cutting edge of developing new legal theories, and many of the reported cases in which we represented clients have become established legal precedent. We actively train new litigators through enrollment at the trial advocacy school sponsored by the National Association of Railroad Trial Counsel. All of our litigators regularly participate in industry claims conferences and committees.

A particularly unique aspect of the firm is our ability to apply the firm’s regulatory expertise in litigation matters that may raise regulatory issues or considerations. In many instances, a matter may involve both court and regulatory proceedings. The firm’s capability to provide both regulatory and litigation expertise assures that all relevant issues and arguments are considered and eliminates the inefficiency of retaining two firms to work on different aspects of the same case.

All railroads face the unpleasant challenge of FELA cases, and our approach is to protect the long-term financial health of the railroad in each case. Thus, we will aggressively defend cases when necessary to establish credibly our willingness and ability to go to trial, and from that position we will exhaust all reasonable avenues of settlement. Because the established plaintiff’s bar already recognizes our willingness and ability to litigate, we are frequently able to resolve cases on a realistic basis.

Just as important as our trial work, we also counsel our clients to develop strategies for improving workplace safety, investigating accidents, managing employee medical treatment and rehabilitation, and returning injured employees to productive work – strategies which help avoid plaintiff’s lawyers and lawsuits. As a result many of our clients have achieved a ratio of payout per dollar of revenue that is consistently below industry averages. For many clients, we provide counseling and advice to the claims and human resources departments, and regularly and directly participate in the entire claim management process, including assisting in the establishment and adjustment of reserves and advising company officers on investigations, discipline, medical management, rehabilitation, accident reconstruction, return to work issues and settlement negotiations.

All railroads face grade crossing, trespasser and pedestrian accidents, and some members of the plaintiff bar incorrectly view railroads as easy targets. From the time we are first assigned such a case, we investigate facts and develop legal strategies that stress the safety of the railroad’s operations and establish preemption over the asserted claims. When the railroad has been damaged in the accident by the fault of the plaintiff, we often pursue counterclaims. Our aggressive stance frequently leads to reasonable settlements early in the litigation, and we have had numerous cases where the plaintiff’s attorney has dismissed the case after we educated him or her on the true facts and the law. In almost every case that continues, we pursue a motion for summary judgment. For cases that are ultimately tried, we have been very successful in obtaining defense verdicts.

Commercial disputes, whether with shippers, suppliers, other railroads, governmental bodies or others, are regularly part of the railroad business, as well. Fletcher & Sippel LLC’s intimate knowledge of the practices, nomenclature, history and peculiar legal structure of the railroad industry allows us quickly to understand the disputes, find the right people with the right information, focus on the critical issues and present the client’s position in the most compelling and efficient fashion. Our lawyers have represented clients in scores of commercial disputes, many resulting in litigation or arbitration or other dispute resolution processes.

One area in which we have developed a particular expertise is disputes with governments and adjacent landowners who attempt to interfere with railroad operating practices – whether to control noise, pollution, traffic congestion or some other condition. We have successfully defended many of these cases by demonstrating that state or local action is preempted by federal legislation, and in doing so we have led the developing case law on preemption under the ICC Termination Act of 1995. For example, when a state sought to condemn a portion of a client’s passing track we convinced a federal court that the state’s condemnation authority had been preempted by ICCTA. We have also used preemption under the ICCTA to defeat efforts by local governments to interfere with switching operations in residential areas, to prohibit locomotives from idling within municipal boundaries, to preempt eviction and ejectment actions, and in a variety of other contexts. Similarly, we have successfully utilized Federal Railroad Safety Act to successfully preempt state law claims, to preclude federal claims, and to enjoin local or state regulatory efforts.