The Reptile Brain Strategy: Why Lawyers Use It and How to Counter It

Christina Marinakis

Over the years, we have heard much consternation from our clients regarding a plaintiff strategy called the “Reptile Approach.” We have seen this approach become more and more popular—not to mention effective—during depositions and trial among plaintiff attorneys. This article provides a brief general overview of the Reptile Approach and offers a few simple suggestions for defending against it.

What Is the Reptile Brain Trial Strategy?

In their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, authors Don C. Keenan and David Ball advocate persuading jurors by appealing to their “reptile brains”—the “oldest” part of the brain and the part responsible for primitive survival instincts. In books, videos, and seminars, Keenan and Ball advise plaintiff attorneys to demonstrate to jurors the immediate danger posed by the actions of defendants because, as they put it, “when the reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect herself and the community.”

The “reptile approach” advocated by these authors has its roots in an evolutionary theory of human brain development. According to this theory, the human brain consists of three levels of functioning:

  1. REPTILIAN COMPLEX

The reptilian complex is the earliest portion of our brains; it contains aspects (e.g., a brainstem, cerebellum, and hypothalamus) that we share with other animals, including reptiles. Portions of the brain in the reptilian complex govern our most basic life functions (e.g., hunger, breathing) and primitive survival instincts (e.g., fight or flight).

When survival becomes threatened, this part of the brain takes over and can overpower logic and reason.

  1. PALEOMAMMALIAN COMPLEX

The paleomammalian complex, the next most recent development in the human brain, contains aspects (e.g., a limbic system and hippocampus) that we share with other mammals. This complex governs our higher emotions—such as separation distress or playfulness—and grants us the ability to socialize and communicate with one another.

  1. NEOMAMMALIAN COMPLEX

The neomammalian complex, largely comprised of the cerebral cortex, is the most recent addition to the human brain and is believed to govern our logic and higher reasoning functions. This is the area of the brain that allows us to do math and science, and to solve complex problems through reason.

Hallmarks of the Reptile Strategy in Litigation 

The plaintiff Reptile Strategy aims to influence jury decision-making by appealing to the reptilian complex of jurors’ brains. That is, plaintiff counsel uses tactics to activate jurors’ survival instincts in hopes that they will make decisions based on instinct (i.e., fear) rather than logic and reasoning.

While there are several tactics that Keenan and Ball recommend, the keystone of their strategy is to focus on danger and community safety:

ESTABLISH DANGER TO COMMUNITY

One of the most important concepts of the Reptile Approach is the concept of the “Safety Rule.” A safety rule is a universal principle of how people should behave—e.g., a doctor must not needlessly endanger a patient.

A plaintiff attorney who is using the Reptile Approach will point out to jurors a general safety rule, get defense witnesses to agree with the rule, demonstrate to jurors how the defendant broke the safety rule, and suggest that breaking the rule put the entire “community” at risk, thereby “awakening the reptile brain” in the juror. Keenan and Ball illustrate this concept with the phrase “Safety Rule + Danger = Reptile.”

JURY HAS THE POWER TO IMPROVE THE COMMUNITY’S SAFETY

Showing the danger is only the first step. The second step is convincing jurors that they have the power to reduce or eliminate the danger. In fact, another aspect of the Reptile Strategy is convincing jurors that they are the only ones with that power, and that they should exercise that power by finding in favor of the plaintiff and awarding a large amount of monetary damages.

In essence, the Reptile Approach subtly suggests to jurors that they should award compensatory damages to punish the defendant and deter others. Attorneys using this strategy may even suggest that without a “proper” verdict and an “appropriate” punishment, the danger to the community will actually be increased.

The Impact of the Reptile Brain Approach on a Jury

This approach is especially effective in product liability, transportation accidents, medical malpractice, and environmental contamination cases. The sequence begins in depositions and carries over to trial, from voir dire to closing argument.

In his article on the Reptile Approach, David C. Marshall describes some of the deposition questions (i.e., Safety Rules) posed by a plaintiff attorney to a representative for a defendant car manufacturer:

  • “Does [the defendant] agree that car manufacturers must make vehicles that are free from defects in materials and workmanship?”
  • “So [the defendant] agrees that if a car manufacturer makes a vehicle that has a defect in materials or workmanship, and someone is injured because of that defect, then the car manufacturer is responsible for the harms and losses caused?”
  • “Does [the defendant] agree with the statement that car manufacturers must make their vehicles so they operate the way the manufacturer represents they will operate?”
  • “And if a vehicle does not operate the way in which it is represented it will operate, and a person is injured, then the car manufacturer is responsible for the harm caused to that person, isn’t it?”

The questions are posed in such a way as to make the witness appear foolish if he or she does not agree with the premise. This strategy has a way of garnering high settlements—because depositions that should have gone well have instead produced soundbites that reinforce the plaintiff themes.

The questions are also designed to demonstrate to the jury that the defendant broke the safety rule. By showing the rule broken, the theory is that the jurors will feel vulnerable and, in order to reduce that danger risk, they will send a proper message to stop this behavior going forward.

Preparing witnesses who you believe will be subject to the Reptile Approach is essential to avoid providing such damaging testimony.

Countering the Reptile Approach

As a theory of human decision-making and brain development, the Reptile Approach lacks scientific support. However, the strength of the approach lies not in its scientific validity, but in the way that it shifts the focus of the trial from the individual plaintiff to the jurors themselves.

The strategy behind the Reptile Approach appeals to humans’ innate selfishness. To the extent that most jurors implicitly ask themselves, “How does this trial affect me?” the Reptile Approach offers them an answer: the defendant’s behavior affects the juror by threatening his or her family or community.

There are several ways the defense can counter the Reptile Approach:

REMEMBER WE ARE NOT REPTILES

Even if we accept that the brains of humans evolved in the way the authors contend, the fact remains that human brains did evolve. Our brains have other areas that grant us greater cognitive abilities than our lizard forebears.

The Reptile Strategy deliberately ignores these other parts of our brain: the parts that control our logic and reasoning and make us distinctly human. One of the strategies for countering the Reptile Approach is to invoke the “non-reptilian” areas of jurors’ brains.

EMPHASIZE THE DETAILS OF A CASE

The reptilian brain, as described by Keenan and Ball, is simple, one-tracked and without nuance. It does not deal well with complexity. The simpler the plaintiff can make the case, and the more clearly the defense’s “bad behavior” can be demonstrated, the better for the plaintiff.

However, cases are always more complex than the plaintiff would have the jurors believe. Instead of hiding from the complexity, rationally explain it to jurors within your case story. This is not suggesting that you delve into the weeds of complexity, but rather illustrate the areas in which the plaintiff played fast and loose with the case facts and over-simplified them.

Showing the plaintiff was oversimplifying—and was taking things out of context to do so—means the plaintiff’s own strategy will undermine his or her credibility with the jury.

REFOCUS TO THIS PLAINTIFF AND THIS CASE

One of the hallmarks of the Reptile Approach is to focus on the defendant’s behavior and minimize attention to the plaintiff’s harm.

Gone are the days when plaintiff attorneys would emphasize the injuries, pain, and suffering of their clients; not only were they seeing unsympathetic jurors, but this approach also drew attention to the tenuous connection between a defendant’s “bad behavior” and the plaintiff’s injuries. Now that plaintiffs are focusing on the overall threat of the danger of defendants’ actions, the defense should counter by emphasizing that this trial is only about this plaintiff and whether the defendant caused harm in this case.

SHOW A DEFENDANT’S BEHAVIOR DID NOT VIOLATE A “SAFETY RULE”

As stated, Keenan and Ball advocate showing that a defendant’s behavior violated a “safety rule,” a general norm or standard that most jurors accept.

In order to undermine this approach, the defense should show that safety rules are not absolute and that the proper action depends on multiple factors and considerations. The defense may also show how a different safety rule overrides the alleged broken one, or that the rule was not violated. Depending on the circumstances, the defense could establish that it was reasonable to violate the safety rule in the situation, or that the rule was violated inadvertently rather than intentionally.

FIGHT FIRE WITH FIRE

The Reptile Approach offers the plaintiff attorney an opportunity to make the case about the juror. This strategy is also available to the defense attorney. Helping jurors to identify with the wrongfully accused is a key aspect to defending against the Reptile Approach.

For example, asking jurors to explain in voir dire why it is important that the burden of proof fall on the plaintiff is one way to help jurors step into the shoes of a defendant. You can also subtly remind jurors that if they were on trial, they would want an impartial jury that would listen for proof, not just accusations.

In premises cases, it may help to talk about “property owners” rather than your client specifically, or in malpractice cases, to speak about “reasonable courses of action at work” rather than particular professional standards. Tactics like these keep the focus on jurors and encourage them to identify with the defense—and render a verdict that would prevent frivolous lawsuits against people like them.

Conclusion

Simply put, we are not reptiles; we are human beings capable of using logic and reason to arrive at the right decision. Although several years have passed since Keenan and Ball first introduced their Reptile trial strategy, the practices and tactics they advocate are still used by plaintiff firms across the country.

To successfully defend these cases, it is important to understand the strategy and be able to identify when a plaintiff lawyer is implementing it. When using a trial consultant for witness preparation, voir dire, or other trial services, we suggest making sure that your consultant is well versed in identifying a Reptile plaintiff and is informed about the practices for countering such strategies.

What attorneys need to know about Reptile Theory

Thomson Reuters

Courtroom lawyers have an array of tactics at their disposal when trying to sway a jury to their side of a case. Some of these approaches are rooted in academic theories while others rely heavily on rhetoric and psychology. In almost every case, though, the approach is meticulously planned out and strategically deployed with one goal in mind: win at all costs.

One such tactic, “Reptile Theory,” has particularly drawn the attention of legal scholars and attorneys for both its emerging prominence and relative controversy. Here, we will break down some of the key components of the approach, assess its true value, and consider ways to combat its application.

What is the Reptile Theory?

The Reptile Theory strategy hinges on jurors’ so-called “reptilian” region of the mind, which is biologically sensitive to danger. The concept can be attributed to ex-theatrical director, David Ball and plaintiff attorney Don Keenan, as described in their book Reptile: The 2009 Manual of the Plaintiff’s Revolution.

The strategy works in two separate stages. First, a juror must be presented with the idea that a defendant is, in fact, dangerous. Then, the attorney’s job is to convince that juror it is within their power to help mitigate this danger by taking action. This can be done, naturally, by awarding massive damages to the plaintiff.

The Stetson Journal of Advocacy and the Law noted, “… if a juror is placed in a position where he or she feels threatened, anxious, or potentially at risk of harm, that juror is likely to react. This is, at its most basic core, the underlying mechanic behind the Reptile. Instead of employing jurors with reason and logic to reach the desired conclusion, the Reptile takes a linear path directly to a juror’s emotions by showing a juror the end result and providing a prism through which all evidence presented at trial may be viewed.”

Essentially, the Reptile Approach suggests jurors should award damages to punish defendants while deterring other presumed bad actors. Sometimes, attorneys will suggest that without a “proper” verdict featuring an “appropriate” punishment, the danger facing the public will actually be worsened.

What about the “Golden Rule?”

As discussed above, Reptile Theory relies heavily on the idea jurors can be swayed using hypothetical inquiries aimed at theoretically preventing future harm. Many legal scholars find this practice predatory and often criticize it for its perceived use as a skirt on “Golden Rule” argument prohibitions.

The Golden Rule involves asking jurors to put themselves in the place of an injured person or victim. By doing so, they are then more inclined to deliver a larger, more favorable award to a plaintiff. However, this tactic has been rejected by many as improper, and in some instances is outright banned.

For example, in U.S. v. Palma, the Eighth Circuit held a golden rule argument is “universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” In general, this is something you want to avoid in a properly functioning legal space.

What does Reptile Theory look like in practice?

Reviewing the Stetson Journal again, let’s consider some questions that might appear in a case where the plaintiff’s attorney is employing Reptile Theory. In this instance, imagine the case involves torts pertaining to a motor vehicle accident featuring a commercial driver.

Questions aimed at tapping into our “reptile brain” might look like: “You would agree with me that failing to look both ways before pulling into an intersection unnecessarily endangers the public and community?” or “You would agree with me that the failure to continually scan the roadway while driving needlessly endangers the public?”

The words “unnecessarily” and “needlessly” are prominently included in the inquiries. This is a tell-tale sign you could be head-to-head against a reptile argument; and the best way to counter the theory is to identify its application as quickly as you can and reintroduce the jury to objectivity and the facts of the case.

All told, there are better ways to win than by deploying Reptile Theory. Having confidence in the integrity of your work is just one of the areas we cover in our white paper, “Three Traits that Make for an Unrivaled Attorney.

Armed with proper preparation and the tools needed to deliver for your client, you will be primed for a successful argument every time – even if opposing counsel tries to snake bite you with a Reptile Theory attack!

he Reptile Theory: A Game-Changing Strategy in Personal Injury Lawsuits

Lexis Nexis – Legal Insights

Over a decade since its introduction, the Reptile Theory continues to make a notable impact on personal injury litigation in the United States.

The theory, first introduced in Reptile: the 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, started a movement that has evolved into seminars, retreats and law review articles aimed at understanding, exploiting and counteracting our “Reptile” brains.

What is the Reptile Theory?

The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.

The strategy relies on the “Triune Brain” concept of neuroscience, engaging the most primal part of a juror’s mind to provoke the feeling that if a defendant’s actions are allowed to continue, then the community and even the jury itself may be in danger.

Before the Reptile Theory, plaintiffs’ attorneys had to be careful to avoid invoking the Golden Rule when addressing a jury. Their arguments had to rely on the evidence presented. They could not implore jurors to reach a verdict based on jurors putting themselves in the shoes of a plaintiff or based on how those jurors wish to be treated.

The Reptile Theory allows plaintiffs’ attorneys to sidestep the Golden Rule, while making a similar impression on jurors. The attorneys start by establishing safety rules, and then demonstrating how a defendant’s unreasonable actions violated the rules to put a plaintiff in danger.

According to Ball and Keenan, plaintiffs’ attorneys who successfully use the tactic have garnered over $7.7 billion in verdicts and settlements. As expected, defense attorneys have responded quickly to develop strategies that blunt Reptile tactics.

Spotting Reptile Tactics in the Wild

Attorneys who practice the Reptile Theory try to establish safety rules from the outset of litigation, usually beginning with the complaint. These rules take the form of statutes, employee handbooks or industry standards.

The next indication of Reptile tactics comes during discovery, when a plaintiff’s attorney attempts to box a defendant into admitting a violation of these rules, rather than focusing on the plaintiff’s injuries or how the accident occurred. Written discovery often includes requests for industry standards and internal operating procedures, along with evidence of prior similar incidents that can establish a pattern of safety violations.

During depositions of employees or corporate representatives, attorneys employing Reptile tactics ask hypothetical questions that establish a rule with which no rational person would disagree, such as whether a person who causes damage should pay for it, forcing a defendant to agree to a standard of reasonableness.

Once a case proceeds to trial, an attorney relying on the Reptile Theory presents these safety rules to the jury, with a focus on why the rules should have prevented the accident. Closing arguments nudge jurors to conclude in their minds that these safety standards were intended to protect the larger public as well, and ultimately, the jurors themselves.

Responding to Reptile Tactics

Defense attorneys who recognize the Reptile Theory in action have several opportunities to counteract it.

When a complaint is filed, defense attorneys should ensure that the plaintiff has alleged sufficient facts to state a cause of action, especially where statutes may limit demands such as punitive damages. References to negligent hiring, supervision or training can be an indication of Reptile tactics as well as of a plan to open the door to evidence of prior similar incidents. In response, defense attorneys can limit these claims, and prevent the eventual introduction of Reptile-friendly evidence that could support the claims, by immediately filing motions to dismiss or strike.

During discovery, defense attorneys can fight a plaintiff’s attempt to establish safety rules, especially when plaintiff’s counsel uses hypothetical questions to do so. Because lay witnesses are not permitted to answer questions that aren’t based on their own direct perceptions, objecting to these inquiries during depositions, and even instructing a witness not to answer, can negate Reptilian questions.

In contrast, during expert depositions, hypothetical questions are permitted and should be anticipated. However, carefully preparing a witness to explain that their expert opinions are only based on facts of which the expert is personally aware can neutralize the effect of a Reptilian question.

After discovery, motions in limine can be especially helpful in preventing Reptile strategies. When the Reptile Theory first entered the scene, defense attorneys had difficulty identifying what they sought to exclude. While a judge may be reticent to grant a motion to exclude all Reptile tactics, if defense attorneys can establish that specific questions and evidence are part of the Reptile strategy, and explain how they may be used to inflame the jury, the likelihood of the judge granting such a motion increases.

Judges often rule that motions in limine are premature or defer ruling on them until the issue is raised at trial. However, filing these motions can put a judge on notice that the plaintiff is using the Reptile Theory.

At trial, defense attorneys should preserve objections to Reptile tactics for the record, as attempts to circumvent the Golden Rule can be reversible error on appeal in some jurisdictions. If a plaintiff is allowed to introduce evidence of past similar incidents, defense attorneys should be prepared to rebut this evidence by establishing a pattern of adherence to safety rules.

Even if a plaintiff is permitted to use the Reptile Theory throughout trial, defense attorneys can explain this tactic to the jury in opening or closing arguments and appeal to another part of a juror’s mind—the part that does not want to be manipulated into a decision.

The Beginning of the Reptile Theory’s Impact—or the End?

Over the past decade, few trial techniques have made the kinds of waves among trial attorneys that the Reptile Theory has. But the theory may end up being a victim of its own success.

As more plaintiffs’ attorneys adopt trial strategies and tactics that seek to exploit jurors’ Reptilian brains, and the defense bar becomes more aware of these strategies and tactics, expect judges to pay closer attention to whether the strategy is being employed in their courtrooms—and if they should put a stop to it.

 

(It is imperative that your attorney understands the Reptile Theory and is properly prepared to defend you against it usage.)

The ELD Hacking Threat

Jack Roberts

Did you know your fleet’s electronic logging devices may be vulnerable to hackers?

It’s true. Serjon, a cybersecurity firm specializing in fleet transportation security, held a press conference during the Technology & Maintenance Council annual meeting in New Orleans in early March. Urban Jonson, senior vice president, information technology and cybersecurity services for Serjon, briefed media on the threats facing fleets with compromised ELDs.

ELDs are essentially communication devices used to record and report truck driver hours of service. Due to certain technical requirements of the regulations, ELDs require the ability to “write” messages to the truck’s network to obtain information, such as engine hours. The ELD also requires internet access to report the HOS information.

This creates a truck network-to internet communication bridge that introduces significant cybersecurity concerns.

We sat down with Jonson to learn more about this new cybersecurity threat to North American fleets and what they can do to protect themselves. (This interview has been lightly edited for clarity)

HDT: Many fleets aren’t aware that ELDs can be hacked. Talk a little about how hackers can gain access to an ELD.

Jonson: Different ELD vendors use different designs to deliver the functionality required by the ELD mandate. A common design is a hardware device that connects to the vehicle’s on-board diagnostics (OBD) port and then uses a Bluetooth or Wi-Fi connection to a cellular device, such as a tablet or cellphone, to collect the ELD information and report it.

That ELD information can be attacked by hackers locally (close to the truck) or remotely across the internet.

In a recent paper presented at VehicleSec’241, the researchers were able to compromise an ELD device locally by simply connecting to the ELD Wi-Fi connection point, which had a predictable SSID [network name] and a weak default password. This allowed the researchers to send arbitrary CAN messages to the vehicle and even modify the firmware of the ELD itself.

There have also been reports of remote compromise of these types of vehicle OBD-connected devices going back to 2015, when a researcher could compromise Progressive Insurance OBD devices over the internet because the devices’ cellular modems were discoverable and openly accessible on the internet and had a weak default password.

HDT: What are these hackers looking for?

Jonson: The most likely ELD attack scenarios do not involve obtaining sensitive information from the ELD or the trucking company, but rather disabling or impacting the vehicle’s ability to function.

If an attacker can write arbitrary controller area network (CAN) messages to the vehicle’s CAN bus network, they can impact the vehicle’s functionality in many different ways. For example, if you can write messages to the CAN bus, you can send bogus sensor messages that would make the vehicle derate and go into limp mode, effectively disabling the vehicle.

The threat actor’s motivation could be money, in which case they could hold the company’s vehicles for ransom — not unlike what we have seen with traditional backend systems in the trucking industry.

It could also be a nation-state threat actor whose motivation is to negatively impact the U.S. transportation systems at a time of their choosing. If you disable enough trucks in tunnels or on bridges, interstates, and shipping ports and facilities, it would effectively snarl the entire transportation ecosystem.

In either case, the threat actors would be looking to compromise vehicle function “at scale,” which would require a systematic attack against an entire company or across multiple companies by attacking an ELD provider’s back-end infrastructure.

HDT: Can hacking into an ELD lead to a more widespread hacking issues? Can hackers gain access to other IT systems in a fleet?

Jonson: Getting access to a single ELD can compromise other systems, but usually at the ELD provider level and not the fleet itself. Most telematics system providers connect the ELD device to their backend system(s) for data collection, and then they integrate with the fleets through portals or direct system integrations.

HDT: Can hackers gain access to employees’ personal information?

Jonson: If the threat actor’s motives involve getting employee or customer data, they will attack the backend systems of the fleet rather than trying to get at the ELD devices.

Attacking regular backend systems requires much less effort and expertise. Estes Express was hit with ransomware in October 2023 and lost personal identifiable information due to the breach. This was done by compromising their backend systems and not via their operational technology, such as ELD or TSP devices.

Ransomware attacks against the backend systems of fleets are still the biggest threat to fleets and not attacks against the vehicles themselves. But that is just a matter of time and will happen eventually.

HDT: What is a worst case scenario for a fleet whose vehicles have been hacked via ELDs?

Jonson: The worst-case economic scenario is that fleets cannot use their vehicles to conduct business. Uptime in transportation is a major concern.

As our vehicles become more connected and more automated, with technologies such as lane-keeping assist and automatic emergency braking, the stakes for safety-critical applications increase dramatically.

A compromised ELD device on such an advanced vehicle with the ability to send arbitrary CAN messages could result in tragic consequences, including the potential loss of life.

HDT: What are some telltale early signs that a system has been hacked?

Jonson: There are few real-world public examples of threat actors attacking fleets, so it is hard to say what the early indicators would look like.

A compromised device could result in unexpected and unrelated diagnostic trouble codes (DTCs) being reported. Or there could be no symptoms at all until the vehicle cannot function and the owner receives a ransomware demand.

Trying to determine the difference between a cyberattack and diagnosing and troubleshooting normal vehicle issues is very hard to do.

HDT: What should drivers do if they suspect an ELD has been hacked?

Jonson: If a vehicle driver suspects that their ELD device or vehicle has been hacked due to erratic vehicle performance or activity, they should immediately contact their fleet maintenance professionals for further guidance. Safety should always be the first priority.

Jonson: First and foremost, evaluate the cybersecurity posture of the ELD devices in your fleet.

Not all devices are created equal. Make sure you ask your provider for information about their cybersecurity practices.

For additional information on criteria to use to evaluate a TSP/ELD provider, you can consult Cybersecurity Best Practices for Integration/Retrofit of Telematics and Aftermarket Electronic Systems into Heavy Vehicles by the Federal Motor Carrier Safety Administration and Cybersecurity Requirements for Telematics Systems by National Motor Freight Traffic Association.

All technologies and systems have the potential to fail, either due to outside influence, such as hackers, or on their own. I know of instances where fleets have lost access to their TSP/ELD systems due to cloud computing outages that were the result of provider misconfigurations. It was nothing malicious per se, but it still caused a major failure.

The best way to combat ransomware and ELD hackers is to make your business systems and vehicles as resilient as possible. Analyze your business and vehicles, identify critical systems that need to be protected, do your best to protect them, and develop contingency plans for what to do if those systems fail. I know of a motor freight carrier that got hit with backend ransomware but could continue operations due to a good backup plan.

2023 FMCSA Audits Year in Review

FMCSA and its state partners conducted more than 12,300 investigations in 2023 and continued its shift to more on-site audits, up 13% over 2022.

Daren Hansen

For the third year in a row, more DOT audits are being performed on-site. As a result, investigators are finding more serious violations and issuing more penalties than in years past. Are you prepared for an auditor’s knock on your door?

The Federal Motor Carrier Safety Administration (FMCSA) relied heavily on off-site audits during the peak of the pandemic, performing more than half of its audits remotely. Last year saw a continued shift towards getting auditors back out into the field, where fully 80 percent of audits were performed.

Odds Are, You Have Violations

Why is the location of an audit important? On-site audits bring much more scrutiny — more interviews conducted, more documents reviewed, more vehicles inspected — so it’s no surprise they’re uncovering twice as many acute violations (the most serious kind) than they did just a few years ago.

If you think you’re too small for an audit or would survive one unscathed, consider this: fully 94 percent of audits resulted in violations last year, and over half (54 percent) were of companies with fewer than 7 power units. About 97 percent of those audited had 100 or fewer units.

If you’re not quite ready for that knock on the door, it’s time to get prepared for a DOT investigation of your compliance program, especially your documentation.

Comprehensive Audits Up 13%

In 2023, the FMCSA and its state partners performed over 12,300 investigations, down slightly from 2022 but the decline was limited to off-site audits. The total included roughly:

  • 4,100 on-site comprehensive audits (up 13%)
  • 5,800 on-site focused reviews (up 8%)
  • 2,200 off-site audits (down 34%)

Complete Records are Vital

The state of your documentation will make or break your audit results, and meticulous recordkeeping has never been more important.

If you’re unsure where to begin preparing for an audit, getting your DOT-mandated paperwork in good shape is a great place to start. About 65 percent of all critical violations found during audits last year related to recordkeeping, including 7 out of the top 10.

Why does it matter? Consider a favorite target: false logs. If an auditor discovers that just 10 percent of your drivers’ logs are falsified, the best you can hope for is a Conditional safety rating. If additional violations are found, you could easily face an out-of-service order.

A comprehensive, on-site audit is the most intensive, potentially taking several days and involving an in-depth document review, interviews, and inspections covering all aspects of a motor carrier’s operations. An off-site audit involves a review of documents sent to the auditor, making it less stressful and intrusive.

Nearly half of audits in 2023 were “on-site focused,” where the auditor comes on-site and targets a specific safety problem, such as hours of service (HOS) or driver files, typically as a result of poor Compliance, Safety, Accountability (CSA) scores.

More Serious Violations, More Conditional Ratings

As noted, an increase in on-site audits means more serious violations are being found and higher penalties are being paid. Last year saw a 5-percent increase in investigations that led to either acute or critical violations, the types that can impact your safety rating. As a result, there was an uptick in carriers that received a Conditional safety rating last year.

More than 1 in 4 audits resulted in a fine, and both fine amounts and the number of enforcement cases ticked upward in 2023. When fines are levied, they are higher than ever — the maximum fines allowed by law are tied to inflation and have increased by 17 percent over the past three years.

2023 By the Numbers

  • 94% of audits resulted in at least one violation
  • 26% resulted in fines or other penalties
  • 3,830 enforcement cases were finalized (up 6%)
  • $26,700,000 in fines were collected (up 4%)
  • $7,000 was paid per settlement, on average (up 2%)
  • 52% of audits resulted in acute or critical violations (up from 47%)
  • 32% of audits resulted in critical violations (up from 30%)
  • 20% of audits resulted in acute violations (up from 17% and double the percentage from 2020)
  • 35% of audits resulted in a less-than-satisfactory safety rating
  • 29% were Conditional (up from 28%)
  • 6% were Unsatisfactory (no change)

Audits are not only hitting motor carriers’ bottom lines; they’re having long-range impacts since less-than-satisfactory safety ratings can lead to lost business, higher insurance rates, and increased liability in court.

Top 5 FMCSA fines of 2023

  1. $426,210 — Violating OOS order, denying access, HM violations, false logs
  2. $160,000 — HM violations
  3. $135,390 — Random drug testing & CDL violations
  4. $126,960 — Driver qualification violations
  5. $111,410 — Log falsification & vehicle maintenance violations

 

Note from Dennis McGee;

(During conducting mock audits, I find many truck drivers using “yard move” at truck stops, shippers and receivers in areas which are OPEN to the public. Consequently, with the FMCSA current definition of “yard move”, these are false log entries. Currently, the “yard move” must be in an area NOT open to the public.

“Driving” time or “Line-3” time is considered time behind the wheel of a commercial motor vehicle that operates on a “highway” per 49CFR part 390.5. A