Preparing your Drivers for Deposition

Doug Marcello, a shareholder with the law firm of Saxton & Stump and chief legal officer of Bluewire, is a trucking defense attorney with a CDL. He had represented trucking clients across the country, having been specially admitted for cases in 35 states. Doug received the 2018 Leadership Award of the ATA Safety Council. He has served on the advisory board of the American Trucking Research Institute. Doug is a member of numerous trucking organizations, including a board member of the Pennsylvania Motor Truck Association and member of the American Trucking Associations Safety Council as well as trucking law organizations including TIDA and Transportation Lawyers. You can also find his interviews and presentation on his YouTube channel and podcast, “TransportCenter”, on iTunes.

 

Your driver is to be deposed. They are to be thrust into a foreign world for which they have neither any experience nor concept.  And out the other side of the process comes their “sworn testimony”, written in cement, as to the accident, training, investigation. It is a crucial event in the case.  Thorough preparation is the key to protecting your driver, and your company, from unnecessary or inadvertent problems from their deposition. Winging it is not an option.

A lot can, and has been, written about the preparation, but some key basics are as follows:

 Calm concerns

This process is new and foreign to a driver. It is the legal equivalent of the trepidation we have facing surgery. Put them at ease. Explain the event – everything about the event so there is no unnecessary angst on the day. Tell them the where, who, and when.

Where? Often the other attorney’s conference room. Although in today’s world, Zoom or Teams is more the norm. If that’s the case, make sure: they have access to the online platform; know how to access it; and know they cannot drive during the deposition (seriously).

Who? Assure them your attorney will be there. Who else? Other attorneys, maybe the plaintiff, court reporter, and maybe a videographer.

When? Give the time and date. You may also want to give it to their company’s operations to avoid last-minute issues.

What questions do they have?  You can’t fill a full glass.  Over my 40 years I learned you need to start by answering the questions that they have first.  Many of these questions are what I planned to address in my prep.  No problem.  Taken care of.  But if you don’t “empty the glass” first, nothing you say will be fully absorbed as they will focus on their questions to the exclusion of the preparation.

You need to proceed accordingly. It’s about the truth. I start every ‘dep prep’ by making it clear we tell the truth. While I have no reason to think otherwise, it always is my first point.  I make clear that I can defend a bad truth, however, I will never defend a good lie.

It’s about the questions. We are there to answer their questions, not educate, explain, or expound unless requested. It is an easy process. Question. Pause. Think of the answer. State the answer. Next question. Period.

I remind the drivers that “the more you say, the longer we will be there.”  The more they say leads to more questions. Answer the question. The whole question. And nothing but the question.  Their expounding gives the other attorney more time to think of questions while the driver is speaking.  This serves to benefit unprepared attorneys who will often skip over questions when not afforded the opportunity to think because answers are short and direct.

It’s about what you know.  Don’t guess.  There are few things you can do wrong in a deposition.  After untruthfulness is guessing.  It is actually a form of untruthfulness to give an answer you don’t know.  If you don’t know, the truthful answer is: “I don’t know.”

Think first, then talk. Think with your mind, not with your mouth. After the question, pause. Think of the shortest answer in your mind. Give the short answer. And then…stop! Next question.  Obvious, right? But in today’s world, unnatural. The norm today is to fill the void. Fight the instinct.

Importance of time and distance

Time and distance precision is critical in accident cases. It can determine speed and reaction time.  While “a minute” is considered brief in everyday conversation, it is a lifetime in the sequence of an accident.  Convey this concept.  Show the known time and distances from investigation: ECM time and speed, measured distances. This puts the elements in perspective.

After the overview, have the driver respond to your questions so they think them through. Telling them is less absorptive than them generating the answers on their own.

While you are going through the facts of the accident, their mind is on this unfamiliar event, what this means to their job, etc. It’s human nature.  Conversely, when responding to your questions, they are focused on composing the response.  Their mind is engaged.

Ask the questions.  Get the answers.  Discuss any elements of their answer that need be addressed as to the facts that are documented.  But start with their version.  Cover 150% of the questions. There is no such things as overcovering questions.  I see my job – no, responsibility – as to ensure that the driver never receives a question we did not cover.

Sensitize them to non-accident questions: education, family info, criminal history.  Let them know that this isn’t personal. It’s a normal part of deposition.

This is consistent with the ultimate purpose of preparation – no surprises on the day of.

Address demeanor

In today’s YouTube world, how they say it is as, if not more, important than what they say. Many live depositions are now recorded on video, especially if it is by Zoom.

Drivers need to appreciate the need for courtesy and calm.  Don’t be baited.  Don’t lose your cool.  Dress appropriately.  I learned from a driver in my first trial that respectful comfort trumps formal discomfort.  My driver told me that he was not comfortable with a tie.  Contrary to what I learned in law school and had seen on every TV trial, I heeded his suggestion.  He did great.  He was comfortable and credible.  The key is to make sure that the quality testimony is not obscured by the presentation. Have multiple sessions. How many times have you been driving home after an event and thought, “I wish I’d said…”  We all do. But we want to eliminate this, to the extent that we can, for the drivers after their depositions.

There should be at least three sessions, including one several weeks in advance.  A second session a week or so before the deposition. Answer questions they thought of after the first session.  Review the highlights of what was covered in the first session.  Repetition will develop familiarity.

Finally, avoid, or at least minimize, new elements on the morning of the deposition.  Don’t undermine the driver’s comfort or confidence that morning. Just address the points that need finalized.  There are many more tips and specifics, but these are the absolute minimum.

You and your company are going to have to live with that deposition throughout the case, and ultimately through trial. Make sure that you have done everything possible to ensure it is the most accurate that the driver can present.

How to Better Manage Change When Implementing New Technologies

Jane Jazrawy

New regulations in the trucking industry and rapid innovation have created a flurry of software and hardware offerings for trucks and everything else connected to logistics.

These advancements have helped with recruitment, training, routing, safety, communication and retention among other day-to-day operations. But when it comes to implementing new technology, a common failure private fleets experience is managing “change” — how it’s perceived by those expected to learn and use the new product or service offering.

Why do you need to manage change?

Like with other industries, integrating new technology can be a challenge for trucking companies and private fleets as those ex­pected to use the new systems may not initially see eye-to-eye with those rolling it out. This is especially true with drivers, since experience using technological devices varies considerably as most in the workforce didn’t “grow up” with tech.

Just because the people leading the technology implementation see the benefits and know how to use the tech being rolled out, it doesn’t mean someone else will understand it right away. It’s why a multistep process that clearly communicates why and how the new technology will make a driver’s job easier — not harder — is key.

Some people adjust well to change, others do not. From an organizational perspective, when you make a change that affects how people do their job day-to-day, it can cause stress. Stress leads to a fight-or-flight response. People can get uncomfortable or annoyed when a change is made. If it’s perceived as a burden to how someone does their job, they may seek employment elsewhere.

When integrating new fleet technology, here are four things to consider to help with a successful transition.

Inclusion

Historically, drivers have not been involved in selecting new technology — despite often being the primary users. When possible, ask drivers for input into the technology you’re looking to add before it’s purchased. In the most recent Best Fleets to Drive For survey, a program that recog­nizes the top for-hire carrier workplaces for drivers, 75% of drivers strongly agreed that their companies implement new technologies to improve efficiency and overall productivity, but less than half had the opportunity to provide their input. Those who do involve drivers find they’re more accepting of the change.

Involvement

Use pilot groups to test out new products and services. Create a list of potential pilot users from different age groups and technological expertise, then determine a base number for participation. Start with a small group (with an upper limit of between 150 and 200 drivers for large fleets). This way, any technical hiccups and bugs can be easily addressed without getting overwhelmed by requests.

Once your pilot group is identified, conduct a survey and create a tech profile, which covers both what is available with the drivers and what’s available at the company. There should be an implementation team assisting the pilot users, coaching them how to correctly use the new devices or software. If the pilot program is conducted in a way that sets participants up for success, they should be able to recognize the benefits or at least be able to easily use the new technology.

Communication

After validation — when the pilot group and management are both comfortable with the process — you’re ready to expand to other drivers in the company.

Create a plan to communicate information that drivers will need to feel comfortable about the program. Use town halls, Facebook Live, email newsletters or other communication channels to ­clearly communicate what is happening with the tech integration. Ensuring drivers are on board and supported makes a big difference in a rollout. It’s important that drivers don’t perceive the program as a chore or punishment. Position the new program as an investment in professional development, and as a benefit that helps them do their job better.

The second part of the communication plan is to identify early adopters, especially senior drivers who command trust, and have them speak with those who are struggling with the change or the technology. Peer-to-peer communication inspires more confidence and simplifies the messaging. Word-of-mouth about personal experiences is often more thorough and relatable than a how-to guide.

Communication, however positive, is ineffective if people are overwhelmed by too much information and too much work at the start of the program. The goal is to start slowly and build confidence and trust that the new program is worthwhile and easy to navigate.

Feedback

Feedback shouldn’t be restricted to just the pilot stage. It should be a part of all stages of implementation. You can solve problems and make people feel heard by asking for their opinion as the change is happening and checking in with them after it has happened. This can be done with a town hall-style format or one-on-one phone calls. By understanding the effectiveness of your approach in integrating and training those on new technologies, you can improve integration practices moving forward or follow up with employees that need additional assistance using the technology.

With the necessary checkpoints throughout the implementation of new technologies, the fluid­ity of the transition will be much easier. Being transparent with the changes you’re looking to make with drivers is important in building trust.

Cell Phone Distraction: A Cautionary Tale

Marc Green

This is an abbreviated, edited excerpt from Roadway Human Factors: From Science To Application, 2nd edition, 2022 (hopefully). To aid the causal reader, most references are not included. The original text contains the fully referenced version.
 

Cell phone distraction has become a research cottage industry. A Google Scholar search, for example, of driver+distraction+phone returns 65,900 hits, which is up 20% from only three years ago. What has been learned from all this research? The answer is: surprisingly little.

This might come as a shock to most people, who read the popular press and safety advocate blogs, not to mention much of the experimental and epidemiological literature, that is full of dire predictions about the mayhem that would/could/should be caused by drivers talking on their cell phones. The evidence for believing that conversing on a cell phone will increase accident risk falls into three general categories:

  1. Common sense. It has been long known that attention is a limited mental resource. Attention paid to one task leaves less for others. This is so intuitively obvious that it hardly requires scientific evidence. Common sense then suggests that attention paid to conversing on a cell phone should leave less for the driving task and cause increased collision risk;
  1. Experimental psychology evidence. Thousands of studies have compared the behavior of “drivers” who are using a cell phone (or performing some other substitute task, such has counting backward) with drivers who are not engaged in a simultaneous cognitive task. The results generally show a performance decrement across a broad spectrum of driving tasks; and
  1. 3. Data mining evidence. A large number of studies have mined existing data, accident statistics, hospital admissions or, more recently, naturalistic data, to determine whether cell phones increase the “odds ratio”, the relatively likelihood of having an accident or a “near miss.” They usually employ the same type of case-control method that is used in epidemiological studies. I prefer the term “data mining” which is a better reflection of the methodology – the use of archival behavioral data that the authors did not themselves collect.

Researchers continue to churn out these experimental and data mining studies with dire predictions despite a very simple and basic observation: in the last 20+ years, the use of cell phones has skyrocketed, yet road accidents have fallen (at least up until the last couple of years). The explanation for this disconnect is a cautionary tale of the problems inherent in using research to identify and solve real-world problems and allowing the “White Hat” zero harm lobby to determine public policy.

In this article I explain the reasons why the research has so badly failed to predict cell phone safety risk. The discussion centers on what is known about the most researched and presumably most common type of cell phone distraction: having a conversation. This is often termed “cognitive distraction” as opposed to two other possible sources of distraction. “Visual distraction” is looking away from the road. “Physical distraction” is removing the hand(s) from the steering wheel to reach for or to hold some object, i.e., holding the phone, reaching for the phone, dialing, etc. In sum, the term “cell phone distraction” without a qualifier is meaningless because it conflates different tasks which, as explained below, have very different effects on road safety. To foreshadow the conclusion, there is little compelling evidence that conversing on a cell phone while driving is a risky behavior. On the other hand, there is much evidence to suggest that visual distraction is the only distraction type that is highly significant.

In the Beginning…

Almost from the invention of the automobile, the intuitive notion of limited attention raised concerns about the use of in-car technology. As early as 1906, highway authorities denounced a new technology that would increase mishap rates by hypnotizing and distracting drivers from the road. Despite the protests, the new technology, called “windshield wipers,” became a standard automobile feature in 1913. A similar concern over driver distraction arose in 1923 when the Springfield Sedan introduced car radios. Nicholas Trott, for example, wrote in the 1930 Farmer’s Almanac that some authorities believed that radios would “distract the driver and disturb the peace.” His solution was ban radio use except when the vehicle was parked. (Clearly, he was a man ahead of time.) Again, technology triumphed over caution and radios became standard within a few years. Except for some mild concern about CB radios in the ’60s, the issue of driver distraction from in-car technology lay dormant for 40 years until the dramatic spread of cell phone-wielding drivers reawakened fears that new technology would cause mayhem on the roadways.

Data Mining Evidence

The first major piece of evidence against cell phone use was Violanti (1997; 1998) which reported that cell phone use increased collision risk by a factor of nine, i.e., and odds ratio of 9:1, or 9 for short. This research had a limited sample size as well as other obvious methodological limitations, so it is not often cited these days. The real Patient Zero for the condemnation of cell phones is a statistical data mining study (Redelmeier & Tibshirani, 1997) that used data from a collision reporting center. It found an odds ratio of 4, lower than Violanti but significant because it conveniently allowed demonization of cell phones by comparison to drinking and driving which produces the same odds ratio. If it is dangerous as the ultimate bogeyman for road safety, then cell phones must be a menace indeed. Interesting, less dramatic studies published about this time were and are seldom sited. Laberge-Nadeau, Maag, Bellavance, Lapierre, Desjardins, Messier, & Saidi (2003) found an odds ratio of only 1.38 or less while Min & Redelmeier (1998) using different methodology found no effect of cell phones.

The methodological problems with Redelmeier & Tibshirani (1997) are extensive. The list is too long to explain in detail (See Green, 2022) so I’ll just note four of the obvious issues. First, there was no conclusive evidence that the driver was using the phone at the time of the collision. Second, and more significantly, the sample was biased. The study only examined drivers who had collisions, possibly a population of the worst drivers. Further, the reporting center dealt only with minor, property-only collisions. There is other evidence (see below) suggesting that if cell phone conversations have any effect, it is likely to be only on minor fender-benders. Third, the collision reports had nothing about the conditions at the time of the collision. They had no data on speed, traffic conditions, etc. In short, the study was weakly controlled. Lastly, a statistical re-analysis of the Redelmeier & Tibshirani (1997) data concluded that they did not an increased risk from cell phone conversation while driving.

Newer data mining studies using the more detailed naturalistic data do not support the Redelmeier & Tibshirani (1997) odds ratio of 4. The common finding is that that drivers talking on a cell phone had the same (Klauer, Dingus, Neale, Sudweeks, & Ramsey 2006) or even lower collision and near-miss rates than non-cell phone users (Olson, Hanowski, Hickman, & Bocanegra, 2009; Hickman, Hanowski, & Bocanegra, 2010; Young & Schreiner, 2009). That’s right – talking on a cell phone resulted in safer driving. In the case of handsfree sets, it was much safer driving.

However, other recent studies found an odds ratio somewhat above 1. Owens, Dingus, Guo, Fang, Perez, & McClafferty (2018) found an odds ratio of 1.83 combined across all classes of cell phone use. When examining only cognitive talking on a handheld the cell phone, the odds ratio was only 1.16 and an even lower 1.05 odds ratio for moderate and severe collisions. Recall that Redelmeier & Tibshirani (1997) examined only minor collisions. Drivers using a handsfree sets had so few collisions/near misses that no odds ratio could be computed, suggesting a small manual distraction effect. However, studies that examined the effects laws banning handheld phones find that they have no effect on crash rates while some experimental evidence finds no difference. The issue is not yet settled.

Another recent naturalistic study (Dingus, Guo, Lee, Antin, Perez, Buchanan-King, & Hankey, 2016) did find a moderate odds ratio of 2.2 for talking on a handheld cell phone. There are no data for talking on handsfree phones. Like Stutts, Reinfurt, Staplin, & Rodgman (2001) before them, however, they found that other generally ignored distractions caused about the same degree of risk: in-vehicle device (other) 4.6, using the climate control (2.3), manipulating the radio (1.9), eating (1.8), personal hygiene (1.4), and passenger interaction (1.4). Visual distractions that caused extended looking away from the road for any reason produced much higher odds ratios, e.g. 6.2 for texting.

The reasons for the discrepancies between early and later research and even between different newer naturalistic studies reveal the limitations of data mining problem. Data miners must decide what variables to include and what to ignore. They are creating a model of the real-world which is not the real-world. The accident reports provide insufficient information to build a reliable model. Still, naturalistic studies have their own problems. Different studies create different models. They must select operational definitions for terms such as “distraction”, “attention”, PRT, and “critical event.” Different studies also use different operational definitions, sometimes even within the same article. This is most obvious in the rather arbitrary category called “critical event.” The base data for early studies were actual accidents occurrences. Since actual crashes are so rare, however, the naturalistic literature has created a category called “critical events” which combines near-misses with collisions. In most cases, the number of near-misses is many multiples of collisions, so the research’s conclusions depend heavily on 1) the definition of near-miss and 2) the assumption that collisions and near-misses are interchangeable. There is no reason to make this assumption. Close examination of operational definitions is critical in science. They allow researchers a means of altering the statistical significance of their results. Two researchers with different operational definitions looking at the same data could come to opposite conclusions.

There are even deeper issues in the entire enterprise of performing statistical data mining to draw conclusions about road safety. Some relate to the general backward looking nature of case-control studies. The entire concept of odds ratio as a risk measure can be misleading because it expresses relative risk and not absolute risk. To say that that talking on a cell phone creates a critical event odds ratio of two says nothing about how many more crashes it would cause. Does it add one crash for every thousand miles driven? Ten thousand? Million? How many extra crashes is it likely to cause? How many micromorts1 does it increase the risk? Since actual crashes are so rare, the number is likely very small, especially given the evidence that talking on a cell phone has little or no negative safety effect at all.

Several bias factors are also likely at work. The drivers must volunteer to have their vehicles instrumented. It seems unlikely that those who drive aggressively, take risks, drink and drive, etc., would want their behavior closely monitored. Naturalistic studies likely reflect bias sample of safer and more conservative drivers. Other problems lie the many biases that affect the scientific literature. “Publication bias” refers to the fact that negative results are less likely to be published than positive ones. This means that data mining studies failing to find odds ratios greater than 1 and experimental studies finding no performance decrement with cell phone use are much less likely to see the light of day. “White Hat” bias means skewing the data for a righteous end, such as promoting safety. And of course, all researchers are biased by the need to churn out positive, publishable results in order to obtain grants, tenure and fame. Negative results are career killers. No researcher, safety authority, grant agency or news medium benefits in any way by concluding that talking on a cell phone is safe. Creating hysteria over a public safety hazard is good for all interested parties. Such considerations must be kept in mind when evaluating any scientific data.

Objective data do not exist because a human must decide what to measure, how to measure it and how to interpret it. These decision originate to some extent in previously held beliefs, theories, values and cultural identity.

Lastly, even if data mining were to demonstrate a correlation between phone conversations and collision risk, it would not prove causation. For example, there is evidence that drivers who use a cell phone while driving are a more aggressive population. Given the negative publicity, it also is reasonable to suppose that people who drive and converse are greater risk takers. (The same issue holds true for intoxicated driving.) Ironically, Violanti (1978), who was the first to publish a correlation between cell phone use and risk, was sufficiently circumspect to warn:

This analysis implies a statistical, but not necessarily a causal, relationship. A multitude of factors are involved in any traffic collision, and the exact cause of an accident and its severity level is difficult to disentangle. (Violanti, 1978).

Experimental Evidence

Experimental research studies typically find that cognitive distraction causes performance losses, such as impaired detection and longer perception-response time, that the authors claim will create mayhem on the roadway. Yet, the data mining research provides no compelling confirmation and the mayhem has not occurred. Controlled research studies have not always generalized to the real-world and predicted events. What is the problem? There is a broad array of reasons, mostly due to the limitations of controlled research.

Statistical vs. practical significance. There is a distinction between statistical significance and practical significance. Not all effects are meaningful because statistical significance does not necessarily imply practical significance. Strayer, Drews, and Couch (2003) called the drunk drivers more “aggressive” because they followed more closely, 26.0 m compared to 27.4 m for control drivers. Statistically, the result was significant to the 0.05 level. The difference was only five percent. It hardly seems likely that such a small effect would have much real-world practical importance. It certainly does not warrant labeling drivers as “aggressive.” This is a classic example of taking a questionable statistic, giving it a verbal label, and using the label to overstate and to mislead. Further, a 0.05 level of significance is a borderline result. (Perhaps more importantly, using p-values to determine what is and is not a real effect is highly problematic.

Demand characteristics. Experimental demand characteristics can create artificial results. The subjects cannot decide to drive slowly, to pull off to the side of the road to make their phone calls, or to postpone their phone calls. The importance of self-regulation was demonstrated in a study the compared drivers who were performing a secondary task under two conditions. In the first, they acted at the pace dictated by the system. Although there was some risk compensation through reduced speed, drivers exhibited large performance decrements. In the second condition, drivers self-paced their behavior and showed little performance loss.

Task cognitive load. Not all cognitive loads are the same. Cell phone conversations of high “intensity” produce longer PRT and presumably more impairment. Research studies often use intense pseudo conversation such as performing complex mental mathematics and pseudo tasks, such as counting backward by non-prime numbers, that perhaps create an artificially high cognitive load. There is no obvious way to compare typical research intensity levels with typical real driver conversation intensities.

Automatic behavior. Humans reduce focal attention’s limited capacity by learning to automate behavior. Much of normal driving is controlled by automatic processes that run under minimal attentional supervision. As behavior becomes more automated, there is less need for the attention that might be diverted by the cell phone conversations. The consumption of attention by a cell phone conversations does not much disrupt automated behavior. For example, cognitive load can slow responses on tasks that require cognitive (i.e., attentional) control but not slow a driver’s response to a braking lead vehicle. Another study supports this conclusion by finding no difference in brake light detection in drivers with light or heavy cognitive load. Conversely, most controlled research studies put drivers in novel situations for short periods and often have them performing novel tasks (counting backward), so the subjects don’t have time to adapt and to automate much of their behavior. Laboratory effects greatly overestimate real-world interference from cell phone conversations by artificially loading attention. This creates a bigger, more publishable effect.

Baseline behavior when not using the cell phone. Fisher (2015) suggested that experimental (big effect) and naturalistic data (little or no effect) are at odds because they are measuring different attentional baselines. Research subjects are on abnormally high alert because they are consciously aware of being tested in an experiment. Research conversations divert attention from a very high level of vigilance. In contrast, naturalistic studies use real drivers, who are likely less attentive anyway. A study found that drivers on a daily commute reported mind wandering in 63 percent of their responses. Other data showed that 52 percent of patients brought to emergency rooms after collisions admitted to mind wandering before the crash. Both studies suggest that controlled, focal attention to driving is not necessarily normal behavior, at least in familiar driving conditions. Compared to this natural low level of attention, cell phone use may increase awareness. More specifically, cell phone conversations may keep drivers alert during long, monotonous travel when they would otherwise drift off into low arousal and at nighttime into circadian rhythm troughs. Lastly, this criticism may apply to naturalistic studies, too. There is no certainty that the drivers of instrumented vehicles are also not more alert than normal because their behavior is being monitored.

Drivers may also have other “distractions” when not on the phone. For example, they may be conversing with passengers. A laboratory study found that drivers with passengers resulted in many “look but fail to see” (LBFS) errors where drivers failed to detect road users such as pedestrians and motorcycles. In the worst case, female drivers with female passengers detected only 17 percent of motorcycles. A supporting study of hospital admissions claims that the presence of passengers correlates highly with increased collision accident risk. Having two passengers “is associated” with a doubling of risk. Is it time to ban passengers from cars?

The locus of attention. Cell phone conversations may also improve driver safety by reducing eye movements. Normal drivers spend some time glancing sideways at roadside objects. In contrast, drivers talking on cell phones concentrate gaze more intently on the center of the road ahead and exhibit less lateral variation in lane position. That is cell phones combat visual distraction. Cell phone users are ironically doing more of what drivers are supposed to do – looking where they are going. Of course, there is much more to attention than looking in the right direction (Green 2022).

Risk Compensation. Perhaps the biggest factor missing from the experimental research is risk compensation. Most views of driver behavior treat it as a skill-based task and that this is what experimental studies typically measure. However, driving is not simply based on skill, as the higher number of crashes and traffic tickets for professional race car drivers attests. Instead, driving is a self-regulated behavior that changes with task demands, so drivers’ pacing may be even more important than their skill. Drivers moderate their driving to compensate for high demands and risk.

The amount of compensation may depend on testing conditions. Compensation in a simulator where there is no real risk may underestimate compensation in the real-world. Still, research has demonstrated many types of compensation.

·  Less Phone use. The simplest compensation strategy is to avoid using the cell phone. As might be expected, older drivers who have reduced attentional capacity are most prone to performance decrements from cell phones. However, according to self-report data, they are the demographic most likely to avoid using a phone;

·  Use in low demand situations. Drivers prefer making phone calls in low demand situations, such as when stopped at intersections;

·  Reduce speed. Cell phone conversing drivers also travel at reduced speed, although this may not be due to risk compensation. Distracted pedestrians also walk at a slower pace. Ironically, this increases rather than decreases their risk exposure;

·  Leave longer headway. Many studies contradict the claim that cell phone users are more “aggressive.” On the contrary, many others found that they allow greater headway. The slower PRT in cell phone users is often cast as their major performance decrement, but the slower speed and longer headway would provide compensatory offsets. Moreover, the PRT-headway tradeoff presents a possible chicken-and-egg quandary. Do cell phone drivers leave more headway because they know that they need more time to respond, or do drivers respond more slowly when they have more headway? The second scenario is supported by research showing that even non-distracted drivers respond slower when the headway is greater. Drivers are simply slower to respond in less urgent situations;

·  Restrict attention to relevant objects. Other evidence suggests that drivers also compensate by using strategies that conserve attention. While drivers on cell phones are allocating attention to a non-driving task, they conserve attention by first ceasing to attend irrelevant objects and exhibit no attentional loss to roadway objects and to hazards. They also cease relatively minor tasks such as checking speedometers and mirrors;

·  Withdraw attention from the secondary task. They also conserve attention by withdrawing it from the distracting task. Driver ability to relate and remember stories declined while conducting a cell phone conversations, which suggests that they reduced attention to the call;

·  Scale compensation to secondary task demands. When the secondary task demands more attention, compensation is greater. For example, drivers who are texting have greater headway compensation than those who are only conversing. Drivers similarly compensate more when using a handheld than a handsfree phone; and

·  Scale compensation to driving task demands. When drivers encounter a mentally demanding road situation, they decrease attention to the secondary task. Drivers compensate more in complex urban roads than on simpler rural ones.

What really causes driver distraction?

The overall evidence that the cognitive “distraction” of talking on cell phones constitutes a general driving hazard is not compelling. This does not mean that cell phone conversations never contribute to collisions. Impairment is a joint function of dose and task. From what is known about attention, cell phone conversations should most likely contribute to collisions when they are the most intense and when the situation is most complex and demanding. However, these are situations where drivers exhibit the greatest compensatory behavior. Cell phone conversing drivers are similar to older drivers. There may be extreme cases where they create “unsystematic” risk but overall they do not constitute a system risk.

Some believe that driver risk compensation is not “adequate”. This presumably means that risk homeostasis does not occur- the cell phone risk is not brought back down to zero or to some other target level. The failure to perfectly compensate is unsurprising because humans are satisficers, not optimizers. It might be better to say that drivers perform risk “hedging” rather than risk “compensation.” They hedge the risk to a “good enough” level for the circumstances, even if it is not always zero. Even if cell phones increased risk slightly, they have benefits such as allowing drivers to perform tasks during driving, providing entertainment, reduce boredom and obtain information. The reasonable question has never been whether talking on a cell phone creates zero harm. Every human activity creates some risk. The proper question is whether talking and driving creates an acceptable risk, given its benefits and the cost of preventing it. As in most safety initiatives, such as Zero Vision, such benefits (and costs) are completely ignored in the name of achieving zero harm. Maybe they should remember the axiom:

If your world is just about safety, then your world is too small. (Long, 2014)

Despite what has been said, driver distraction is a real phenomenon and a serious concern. The conclusion that cell phone conversations are relatively benign does not extend to all potential distractions. Visual distraction produces greatly increased collision risk. The existing research strongly suggests that looking away from the road for an extended period is the main driver distraction risk. A behavior such as texting/emailing on a smartphone is undoubtedly a public safety concern. It doesn’t just draw the eyes away from the road, it 1) causes intense focus of attention on a small target or possibly an extended time and 2) changes accommodation and convergence to short distances. One naturalistic study found that texting produced an odds ratio of 163(!) of creating a safety-critical event compared to only 0.089 for talking on a hand-held cell phone and 0.65 on a handsfree cell phone (Olson, Hanowski, Hickman, & Bocanegra, 2009). (Another study found a testing odds ratio of only 2.1. Welcome to world of data mining research.)Even looking at the phone to dial only had an odds ratio of 3.5. It is hard to imagine a much more dangerous activity during driving than texting and emailing.

Conclusion

The bottom line on all this distracted driver research is that there is at best weak evidence that simply talking on a cell phone while driving is a particularly risky real-world behavior. Looking away from the road for any reason, be it dialing, texting, viewing the GPS navigation screen, adjusting the temperature, or opening a sandwich or water bottle likely poses a higher risk. One study suggests that tuning a radio increases crash risk by a factor of three to five. Perhaps Nicholas Trott was right all along.

The story of talking on a cell phone as risky behavior is a cautionary tale, especially for those “White Hats” who wish to save society from itself by adding rules and regulation that restrict behavior to avoid absolutely all harm. There is little compelling evidence that talking on a cell phone, especially with a handsfree set, increases collision risk. The “common sense” notion that cell phone conversations are risky because they divert critical attention from the driving task created a strong “confirmation bias” that has failed in the face of the real-world evidence. The sharp negative correlation between accident rate and cell phone use argues heavily against the common sense belief. Of course, this is just a correlation and there may be some strong countervailing factor that has lowered collision rate in spite of the cell phone menace. (Fatal collisions related to alcohol are way down.)However, this argument receives no support from the data mining literature. Although early studies using accident data suggested that the risk is high, more recent and better studies employing the detailed naturalistic data find little or no effect especially on absolute risk. Close examination of the experimental evidence shows that it has little ecological validity since it omits many factors operating in the real-world. If the White Hats were really serious, they would be calling for bans on car radios, passengers, and in-car eating, etc. Moreover, while studies typically find that while distraction is indeed a major crash cause, the large majority lie outside the vehicle. If the White Hats believed in zero harm, they would also call for bans on advertising signs, roadside flowers and skimpy clothing.

Conversely, visual distraction is a real and dangerous risk. For example, A study that directly compare cognitive and visual distraction found that only visual distraction produced a significant performance decrement. Amazing while cell phone condemnation continues, moreover, vehicles increasing come packaged with new visual distractors in the form of map displays and complex infotainment systems that are certain to consume some visual attention while driving.

However, visual distraction is not so easy to define. There is some dispute in the literature about when and how long the driver must look away from the road before he can be said to be distracted. After all, driving does not require full attention in most circumstances. The term distraction only applies when the competing behavior intrudes into the driving task. When exactly is that? It depends on the context.

So what is the sum total that the world has definitively learned about distraction from the 65,900 Google hits? If you don’t look down the road for a bit, you won’t see what is there and might have an accident. Who would have guessed!

Endnotes

1A micromort is a measure of risk equal to one death per million, usually per day. For example, every 250 miles driven equals one additional micromort. Climbing Mt. Everest is worth about 38,000 micromorts.

Personal Conveyance: How and When to Use It

Personal conveyance: How and when to use it

Ryan Witkowski

With strict regulations for hours-of-service, the use of personal conveyance can be an important tool for truckers. However, it can be a confusing area for some.

Personal conveyance is used to account for the movement of a truck while the driver is off-duty. Current regulatory guidance from the Federal Motor Carriers Safety Administration states that:

“A driver may record time operating a commercial motor vehicle for personal conveyance as off-duty only when the driver is relieved from work and all responsibility for performing work by the motor carrier. The CMV may be used for personal conveyance even if it is laden, since the load is not being transported for the commercial benefit of the motor carrier at that time. Personal conveyance does not reduce a driver’s or motor carrier’s responsibility to operate a CMV safely. Motor carriers can establish personal conveyance limitations either within the scope of, or more restrictive than, this guidance, such as banning use of a CMV for personal conveyance purposes, imposing a distance limitation on personal conveyance, or prohibiting personal conveyance while the CMV is laden.”

 Drivers can use personal conveyance in a number of ways

Tom Crowley, a compliance and regulatory expert with the Owner-Operator Independent Drivers Association, says the use of personal conveyance can benefit drivers looking for safe parking following the end of their 14-hour clock.

“You would have drivers that were at a shipper-receiver who would run out of their 14-hour clock. And so technically they couldn’t drive off of their shipper-receiver’s property,” Crowley said. “Yet the property owner was saying, ‘Hey, you get your truck off my property or I’m going to call the cops!’ That would leave the drivers in the lurch. So the feds came back and said, ‘You can use personal conveyance from a shippers-receivers, if you run out of hours, to the closest option for parking, Not in the way of your next load, but the closest option. So the personal conveyance comes into play there where you’re out of hours, but you got to leave the property. You can use personal conveyance so that you don’t have to show violation to your closest parking option. That’s one way it’s used for the average driver out on the road.”

A former driver, Crowley would drive his truck to the yard and back home every day. By using personal conveyance, his hours would start when he got to the yard and would end when he left the yard.

Additional instances for the use of personal conveyance, according to FMCSA guidance:

  • Time spent traveling from a driver’s en route lodging (such as a motel or truck stop) to restaurants and entertainment facilities.
  • Commuting between the driver’s terminal and their residence, between trailer-drop lots and the driver’s residence, and between work sites and their residence.
  • Time spent traveling to a nearby, reasonable, safe location to obtain required rest after loading or unloading.
  • Moving a commercial motor vehicle at the request of a safety official during the driver’s off-duty time.
  • Time spent transporting personal property while off-duty.
  • Authorized use of a commercial motor vehicle to travel home after working at an offsite location.

Logging personal conveyance

Crowley said that drivers using a paper record of duty status can use the provision without changing their current logging procedures. However, drivers using an ELD will want to account for the miles put on their truck while they’re off duty.

“You don’t have to keep any records. Technically, when you are on personal conveyance, there are no hours of service to cover you, so you don’t have to log anything,” Crowley said. “That said, you’ve got an ELD that’s tracking every mile you go, most folks do now. So they need to put the ELD into a status that will show personal conveyance rather than keeping their hours. So that’s when they would either use the PC button, or technically they could log totally out of the system. But then they would still have those unaccounted for miles to deal with.”

As part of the FMCSA’s ELD rule, manufacturers are required to include a special driving category for personal conveyance.

Crowley said drivers need to be aware of instances where personal conveyance and its use can be misinterpreted.

“You’re out of deodorant. You run to Walmart, buy some deodorant and go back to the truck shop. That’s a personal conveyance move,” he said. “But here’s the thing. If while you’re at Walmart, you buy you a gallon of oil for your truck, you’ve negated the personal conveyance. Because now it was a business-related move. Just to, you know, keep it complicated.”

While some gray areas still exist for the use of the provision, Crowley said that the most common instance for its misuse stems from drivers inaccurately determining off-duty status.

“A lot of drivers have the tendency to think if they are not under a load that they are on personal conveyance,” he said. “So I leave Kansas City, I go out to L.A. to deliver my load and then I’m going back to KC empty. You cannot personal conveyance back to Kansas City empty because that is part of your trip. But drivers tend to think that if I am not under dispatch, you know, I’m not under a load that I can use personal conveyance. And I all the time have to say no. ‘Well, I’ve been doing that.’ Well, you haven’t been caught. That’s the only thing.”

Other instances that would not qualify as personal conveyance, according to the current FMCSA regulatory guidance, are as follows:

  • The movement of a commercial motor vehicle in order to enhance the operational readiness of a motor carrier. For example, bypassing available resting locations in order to get closer to the next loading or unloading point or other scheduled motor carrier destination.
  • After delivering a towed unit, and the towing unit no longer meets the definition of a CMV, the driver returns to the point of origin under the direction of the motor carrier to pick up another towed unit.
  • Continuation of a commercial motor vehicle trip in interstate commerce in order to fulfill a business purpose, including bobtailing or operating with an empty trailer in order to retrieve another load or repositioning a tractor or trailer at the direction of the motor carrier.
  • Time spent transporting a commercial motor vehicle to a facility to have vehicle maintenance performed.
  • Time spent traveling to a motor carrier’s terminal after loading or unloading from a shipper or a receiver.

Knowing when to use – and more importantly when not to use – personal conveyance is important. Drivers who inaccurately use personal conveyance are subject to penalty.

“That would be falsification of the logbook and that would equal immediate out of service for 10 hours,” Crowley said. “And that is absolutely what happens to them.”

Changes to FMCSA’s guidance on personal conveyance

On March 29, 2022, the Commercial Vehicle Safety Alliance petitioned FMCSA to amend the current guidance regarding the use of personal conveyance. In its petition, CVSA has requested the administration better define it by adding a maximum distance and/or time drivers could operate under that designation.

“Under the current guidance, a driver could, in theory, drive hundreds of miles over the course of several hours all under the designation of personal conveyance,” the alliance wrote in its petition to FMCSA. “This presents the opportunity for increased driver fatigue and risk on our roadways, as drivers may decide to travel hundreds of miles in order to strategically relocate to an alternate location after driving a full day. Without a maximum daily distance and/or time limit, the guidance presents a legal way for drivers to significantly extend their driving time and the furtherance of their load while recording personal conveyance. The hours-of-service limits exist to mitigate the impacts of fatigue on highway safety. Allowing significant extension of driving time with the use of personal conveyance undermines the goals of the hours-of-service regulations.”

CVSA initially petitioned FMCSA to make this change on Dec. 17, 2018, prior to the current revised guidance being put into effect. That petition was denied on Sept. 18, 2020.

The request by CVSA is not ungrounded

Canadian truckers are limited in the distance they can travel under the use of personal conveyance. Current guidelines limit its use to 75 km (around 47 miles) per day. The driver must logged as off-duty with the truck unloaded and trailers unhitched.

According to CVSA, false records of duty status violations represented the 3rd most documented driver violation in 2021. In June 2021, a violation code was added to roadside inspection software which allowed inspectors to note when false record of duty status violations were a result of the misuse of personal conveyance. As of Jan. 28, there had been reported 3,041 violations indicating the misuse of personal conveyance. Additionally, 61% of those violations resulted in the driver being placed out of service because their misuse of personal conveyance was an attempt to conceal extra driving time.

“By establishing a maximum allowed distance or time for personal conveyance, FMCSA will not only eliminate confusion and inconsistent enforcement among inspectors on this issue but will also ensure safer roads as commercial motor vehicle drivers and motor carriers are on notice that personal conveyance time cannot be used as a safe harbor for driving hundreds of miles after exhausting their hours of service.”

Deciphering the Motor Carrier Rating: What Does It All Mean?

Motor Carriers can often find themselves in a frustrating scenario trying to defend why they do not have a current “SATISFACTORY” safety rating. It is understandable to question a motor carrier’s safety rating when they are currently “CONDITIONAL” or even “UNSATISFACTORY.” However, a non-rated motor carrier is often put in a position of defense when questioned by a variety of entities, such as shippers, receivers, brokers, and even insurance providers.

John Seidl

The current rating process is outlined in 49 CFR Part 385. This rating process has been in existence before CSA was ever developed by the Federal Motor Carrier Safety Administration (FMCSA). It dates back to the SAFESTAT days (for those of you that have been in the brokerage/motor carrier space that long). We then found our way to the Safety Measurement System (SMS) and CSA.

In moving to SMS – CSA, there was an attempt to replace the current rating process with the Carrier Safety Fitness Determination, but that has gone by the wayside. This would have eliminated an antiquated rating process and replaced it with one that would have included roadside inspection data as well as results of compliance reviews.

What we are left with is an often misunderstood process. Here is an attempt at explaining each of these ratings:

NON-RATED: Simply stated, this a carrier that has either never undergone a “FULL” FMCSA compliance review in which all parts of compliance were checked, or a “FOCUSED” review in which some parts, but not all were checked for compliance. Additionally, they could have undergone a FOCUSED review whereas nothing was found that would have resulted in a proposed Unsatisfactory or Conditional rating, as outlined in Part 385, thus resulting in being non-rated.

UNSATISFACTORY: Simply stated, this carrier would have undergone a FULL or a FOCUSED review, and the findings of that review for the carrier would have resulted in a UNSATISFACTORY rating, as outlined in Part 385. It should be noted that ratings are proposed and do not take affect for 45 days if you transport hazardous materials and 60 days if you do not transport hazardous material. Proposed UNSATISFACORY carriers must complete a 49 CFR 385.17 upgrade request prior to the 45/60 day time frame or be subject to a FMCSA Out-of-Service Order.

CONDITIONAL: Simply stated, this carrier would have undergone a FULL or a FOCUSED review, and the findings of that review for the Carrier would have resulted in a CONDITIONAL rating, as outlined in Part 385. Proposed Conditional carriers can complete a 49 CFR 385.17 upgrade request during the aforementioned timeframes, or they simply attempt to operate with this rating until which time they feel corrections have been made to warrant an upgrade.

SATISFACTORY:  Simply stated, this carrier has undergone a FULL review at some point in their history. You cannot be a SATISFACTORY carrier without having undergone a FULL review. FOCUSED reviews do not result in SATISFACTORY ratings. You can maintain a previous issued SATISFACTORY rating if you pass a FOCUSED review, but cannot be issued a new SATISFACTORY rating without a FULL review.

Let’s summarize this:

  • Carrier A has been so good that they have never undergone any FMCSA review – NON-RATED.
  • Carrier B underwent a FULL review that resulted in a Conditional Rating, completed a 385.17 upgrade request, which was subsequently approved by FMCSA – SATISFACTORY.
  • Carrier C underwent a FULL review that resulted in a UNSATISFACTORY Rating, completed a 385.17 upgrade request, subsequently approved to CONDITIONAL, then completed another 385.17 upgrade request over time, which was subsequently approved – SATISFACTORY.
  • Carrier D was Satisfactory and underwent a FOCUSED review that resulted in a CONDITIONAL Rating, completed a 385.17 upgrade request, which was subsequently approved by FMCSA – SATISFACTORY .
  • Carrier E was Non-Rated and underwent a FOCUSED review that resulted in a CONDITIONAL Rating, completed a 385.17 upgrade request, which was subsequently approved by FMCSA – NON-RATED.

Since SMS – CSA, there has been a substantial move in the types of reviews that are completed. Under SAFESTAT, the majority of the reviews were primarily FULL reviews. Under SMS – CSA, the majority of the reviews are FOCUSED. This has resulted in far fewer SATISFACTORY ratings being issued since SAFESTAT went away.

Shippers, receivers, brokers, and insurance providers have to understand that in many cases a NON-RATED motor carrier is actually better than SATISFACTORY motor carrier.

When applying this information it is important to not confuse a New Entrant Safety Audit with any of these ratings because ratings are only assigned for FULL or FOCUSED reviews as noted here, not for New Entrant Safety Audits. New Entrant Safety Audits result in Pass/Fail.