Why FMCSA keeps revoking ELDs, and how to tell if yours is next

Alex Lockie

The Federal Motor Carrier Safety Administration recently revoked three electronic logging devices in a two-week span (One Plus ELD, ELD ONE and Nationwide ELD). Now, an ELD service provider is speaking up about what he feels has changed — and possible signs your ELD could be next on the chopping block.

Mike Riegel, who owns Blue Ink Tech (provider of the BIT ELD), recently wrote this story outlining how the FMCSA goes about reviewing and revoking ELDs. Riegel believes the agency is currently “cracking down on ELD providers who sell products that don’t 100% align with the ELD mandate,” and notes that any time a driver is transferring their hours data to an inspector, the inspector is checking that not just the driver, but the ELD itself, is compliant.

If the inspection does find issues with the ELD provider’s data, that provider gets an email like the one below, received by Riegel.

Messages like this from the FMCSA go out to ELD providers citing issues in the technical parameters, and requesting fixes.Courtesy of Mike Riegel

It’s important to note that Blue Ink Tech itself isn’t at risk of falling out of compliance and having its ELD revoked. “When an ELD data transfer is found to have errors, the FMCSA technical team will highlight the errors and request a plan of action to fix the issues within 72 hours,” Riegel wrote. “If there is no reply to the email, it is likely that more attempts will be made to get a plan of action, and if nothing comes back the provider will be revoked.”

But if the ELD provider does get back with a plan of action, he added he feels “the FMCSA will be pretty lenient and allow the provider the time they need to take the corrective action.”

Riegel provided context for the email above in response to Overdrive queries. It directly followed a roadside inspection of “one of our ELD customers,” he said. “It looks like their system is getting more advanced at picking out items that do not align 100% with the mandate. Our issues were small, and about the length of notations for [records of duty status] and the resolution of the GPS data while on Personal Conveyance. I think this advancement of finding issues during roadside inspections could be why the FMCSA is able to crack down on more of the ELD providers that are not following the mandate.”

The FMCSA wouldn’t say outright if there’s any new crackdown underway, or some new methodology, but didn’t deny it either.

“FMCSA has been actively monitoring compliance of ELDs since the implementation of the rule,” said an FMCSA spokesperson. “Our investigative process has certainly evolved, resulting in more efficient and sophisticated methods of identifying ELD vendor compliance issues, as well as ELD misuse.”

Riegel is also correct that roadside stops play a role in finding issues with ELDs, but FMCSA Compliance Investigations staff’s in-person carrier audits and other reviews “also play a vitally important role in identifying potential ELD issues,” the FMCSA spokesperson added.

How to tell if your ELD will be revoked

The FMCSA’s complete technical standards, with which ELD providers must comply, are laid out in voluminous detail in regulation. The revocation process is laid out there, too, and it includes required notice by the agency to the provider, a time frame for response, and consequences that follow. You can find that process in the “Removal of Listed Certification” section at the previous link. For an owner-operator, determining whether or not a provider is 100% complying with technical standards might seem an impenetrable task, but Riegel laid out what he felt could be common signs that an ELD isn’t long meant for the FMCSA’s certified-device registry.

His first recommendation boils down to this: If it sounds too good to be true, it probably is.

If your ELD allows you to edit automatically recorded drive time, that’s never going to be compliant. “A common example of drive time editing is when a driver forgets to indicate Personal Use before moving their truck to a different parking spot. If you are able to edit that Driving status to PC or Off Duty, or if you are able to delete the status altogether, this should be cause for concern,” he wrote.

During the early days of the ELD mandate, the prior Automatic Onboard Recording Device standard did allow for editing automatically recorded drive time, though not by the driver. Under the AOBRD standard, those “back office” or administrator-account edits weren’t visible to roadside inspectors, either. The AOBRD grandfather period ended in late 2019, however, and under the current ELD standard, such drive-time edits are impossible. All edits otherwise, too, are visible at roadside with data transfer.

Other issues center around customer service and staying updated, in Riegel’s view. Poor technical support and customer issue resolution? Don’t expect that provider to be very responsive with timely communication to the FMCSA, either, in the event their compliance checks flag an issue. The ELD isn’t compatible with other APIs? Could be another bad sign that the ELD doesn’t play well with others, or might not be keeping up with the latest updates, wrote Riegel.

He also felt that “white-labeling,” when one company sells an ELD supported by another company’s technology, held potential to create barriers to timely updates. There’s nothing illegal about the practice of white labeling, of course. But if for instance the FMCSA reaches out to the original provider with an email like the one shown above, he felt the white-label version might miss the necessary updates to the original — opportunity for it, thus, to pop out of compliance.

Finally, he advised, it’s good practice to occasionally check in at the provider’s website for updates and timeliness. The FMCSA frequently reaches out to ELD providers to make updates. If the website feels like the lights are on but nobody’s home, it could be a sign that noncompliance looms just behind the next update.

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!