Doug Marcello
The LEAD: Ignoring your data, fearing discovery in litigation, can be fatal to your company. The data is there. Plaintiffs will get it. You must proactively cumulate and analyze it to promote safety and proactively prepare to defend any potential suit.
Many falsely feel that if they don’t aggregate and analyze their data, they are immune from being preyed upon by plaintiffs. If they don’t self-identify their vulnerabilities, they won’t be discovered when sued.
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In other words, what they don’t know won’t hurt them.
Wrong. Wrong in the misbelief that “it won’t be revealed”. Wrong in the failure to flip the script and use the analysis as a proactive defense for the trucking company’s benefit.
FALLACY: “We don’t want to analyze data for vulnerabilities so it can’t be discovered by plaintiffs.”
REALITY: Just because you don’t do it doesn’t mean that plaintiffs can’t find it.
Worse. Plaintiffs can find the vulnerability exposed by your data by doing their own analysis.
They can then spin your failure to mean their narrative. The result is to empower plaintiffs to paint your vulnerability as a “systemic failure” that they need for a Reptile Theory attack and explosive verdict.
YOUR DATA: PLAINTIFFS’ TARGET
Plaintiffs have targeted your data as a detonator for explosive verdicts. They know what you have. They know how to get it.
Any doubt? They teach courses on it. At a recent conference for plaintiff trucking lawyers, the sessions included the following:
-“Trucks: Treasure Troves of Data”
–“Telematics Systems: What They Are, How to Use the Rules of Procedure to Obtain Data, and Standards for Admissibility,
-“Examples of Telematics in Real Cases”
-“Cell Phones and Mobile Devices: What Data Exists; How to Get It, and How to Make it Admissible.”
Plaintiff attorneys are coming for your data, whether or not you cumulate and analyze it. Conversely, you’re not cumulating and analyzing your data doesn’t mean that they won’t get it.
What it does mean is that they get to spin what your data shows the way they want and the way that is most damaging to you.
Moreover, your failure to analyze your data can be, in itself, a target for their attack. “The trucking company could have known of the safety failures if it wanted to. It didn’t. Jurors, get their attention and focus their attention with a large verdict.”
FLIP THE SCRIPT…WITH YOUR DATA
So you can ignore the data, hope plaintiffs don’t find it, and pray that the jury won’t send you a nuclear message. Kinda like not going for your annual physical and taking comfort in not knowing your health.
Or…you can flip the script. Embrace, cumulate, and analyze your data as the foundation of your defense. Use your data as the foundation for your defense.
For the Reptile Theory to succeed, it needs to show a “systemic failure” by your company. Inadvertent accidents and conditions that don’t need correction won’t trigger the Reptile response.
How do I know this? It says so in the book, The Reptile Theory (pages 30, 31, 38, and 53).
Use your data as the foundation for your defense to these Reptile attacks. Demonstrate that you constantly analyze for vulnerabilities and, if found, address them.
Your defense—“We cumulated and analyzed the date. We identified the key indicators of unsafe conduct. We monitored compliance and punished violations. When we found vulnerabilities, we addressed them. Here’s how.”
The result—No systemic failure here. Nothing needs corrected. It was a one-off human failing, not a “systemic failure”.
PROACTIVELY REBUT PLAINTIFFS’ MANIPULATIONS
More importantly, you proactively write your narrative based upon your cumulation and analysis of data. You don’t surrender control of the narrative to the plaintiff.
Your cumulation and analysis of the data doesn’t stop the plaintiffs from trying to manipulate it their misuse. But you can proactively produce your rebuttal based on your more thorough analysis of the data over a period of time. And show that you’ve addressed any vulnerabilities that it revealed.
First, analyze the data to improve safety. The best defenses are a.) no accident and b.) strong “systemic safety procedures”.
Second, proactively develop the rebuttal based on your use of the data to promote safety. You know the attack is looming. Prepare your response today.
Determine the key indicators and support your decision with data. Proactively prepare your justification why these data points are the keys you monitor based on your experience and analysis.
The result: “No ‘systemic failure’. Nothing to correct. We’re on it.”
Third, even if the jury buys the plaintiffs’ spin, show you have actively sought to identify and correct safety issues shown by the data. The result is a disagreement on analysis, not a complete failure to cumulate and analyze the data Doing so deprives the plaintiffs of the argument that there is a “systemic” vacuum that needs to be filled by a big verdict.
Don’t fear your data. Embrace it. Use it. Proactively make it the foundation of your defense.
BOTTOM LINE: Cumulate and analyze your data to identify safety factors, monitor them, and enforce compliance. If you don’t, plaintiffs will.
What can you expect duging any roadside inspectin – but especially during the annual Roadcheck blitz? The inspectin guidelines are published and consistently used throughout North America.
Download the guide here.
Doug Marcello
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. Stop!
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.
by David Hollis
For the typical trucker who is in the driver’s seat of their truck for most of their waking hours while on the road, having that seat be as comfortable as possible is a big deal.
That’s just one of the things we found out in our recent survey of what drivers want.
We also found out their views on their truck’s safety technology. They appreciate the safety of having a forward-facing camera but don’t appreciate one aimed at them.
Drivers in our survey are not keen on battery electric powered trucks and don’t believe autonomous trucks will be the saviors of the industry some people see them as.
Which creature comforts matter most?
We asked company drivers, “Which of the following truck/equipment features are important to you? Check all that apply.”
Here are the results:
67% – Special seat that improves comfort for long hours of driving
56% – Auxiliary power unit
47% – Late model truck
47% – Large sleeper
37% – Satellite radio
24% – Mobile communication to stay in touch with my dispatcher (such as Qualcomm)
24% – Satellite TV
17% – Automated transmission
13% – Fuel economy features (aerodynamics, trailer skirts) that will help me achieve a fuel-saving bonus
13% – Good-looking paint job
The choice of a comfortable seat was a priority across all age groups. It was chosen by 71% of company drivers under the age of 34; by 69% of drivers 35 to 54 years old and 67% of drivers 55 years and older.
The younger drivers were vastly more interested than drivers in the other age categories when it came to wanting an APU and also having a large sleeper.
All drivers under the age of 24 said an APU was important to them. That compares to 61% of drivers in the 35-54 bracket and 54% of drivers 55 and older.
When it came to driving a truck with a large sleeper, 71% of those drivers up to age 34 said that was important. Just 47% of drivers 3-54 and over 55 said a large sleeper was important to them.
More younger drivers – 57% – said a late model truck was important than did drivers 35-54 years old – 43% – and drivers older than 55 – 48%.
And, those drivers under the age of 34 said that late model trucks ought to look good. Fully 57% said a good-looking paint job was important. Only 12% of both drivers 35-54 years old and over 55 said the paint job was important.
We asked drivers for their comments on this question and here’s a sampling of their responses:
“Inside comfort and outside looks. Truck needs to ride good, and look good.”
“Microwave, refrigerator, inverter, this will allow for fresh food, a way to cook, power for cooking.”
“Engine big enough to do the job properly.”
“Mega carriers buy equipment with the smaller sleepers, and then want you to drive forever without going home.”
“Nothing nicer than a late model truck with a big bunk at the end of the day.”
“Compared to the cabovers of the 70s, 80s, and 90s, trucks have improved to make our lives better for living. I am driving a beautiful burgundy with a cream stripe, new KWW 990. Compared to crawling into a coffin, the large sleeper is nice.”
“I need a radio I don’t have to mess with to keep me informed and entertained. I need a seat that won’t break my back and give me Charlie horses.”
“If you want to keep your trucks working, you have to make your drivers happy. Like giving them reliable equipment, a comfortable place in the trucks for downtime, and you have to give them wages that they can live on in the truck and at home for their family.”
“With all the anti-idle laws, an APU should be standard equipment.”
“Well maintained equipment is important. That is why I chose late model equipment because lowering the chance of break down or equipment violations is very important.”
“Premium interior with extra sound-deadening material.”
“I want a nice, old school piece of equipment. Manual transmission, horsepower, and looks good going down the road. Life is too short to drive a plastic auto truck that looks like everything else. I want, pre-ELD truck, so as to not have to adhere to the majority of the government and mechanical regulations … when everyone who’s stuck on the side of the road with HOS/DEF issues … the ones who will keep the country going are the laissez-faire truckers who were able to not have to deal with the government BS.”
What technologies keep drivers safest?
Our survey also asked drivers about truck features and equipment beyond those that apply to driver’s creature comforts.
Toward that end, we asked, “Which technologies do you think have the greatest impact on truck driver safety? Check all that apply.”
Here are the results:
55% – Forward-facing camera
36% – Electronic logging device
35% – Lane departure warning system
34% – Collision mitigation system
23% – Lane-keeping/lane centering
16% – Speed limiter
10% – Driver-facing camera
6% – Telematics
More company drivers – 58% – than leased-owner-operators – 47% – said forward-facing cameras had the most impact on driver safety. Likewise for collision mitigation systems, which 38% of company drivers chose compared to 36% of the owner-operators. The responses were similar when it came to the impact lane departure warning systems. Slightly more company drivers – 38% – chose them, while 30% of owner-operators did. They two were about dead even when it came eo ELDs: 37% of company drivers chose them, while 36% of owner-operators did.
Only forward-facing cameras and ELDs showed any real difference of opinion when age groups were taken into account.
The leading choice for 57% of drivers 35 to 54 years old was forward-facing cameras, followed closely by 53% of drivers 55 and older. However, just 45% of drivers under the age of 34 chose them as having the greatest impact on driver safety.
ELDs were said to have the most impact by 37% of drivers 55 and older, and 35% of those drivers 35 to 54 years old. However, just 18% of drivers under 34 years old chose them.
We also took the pulse of drivers when it came to bigger picture equipment. In specific, we asked about autonomous trucks and those powered by alternatives to diesel powertrains.
Are trucks meant to drive themselves?
Few developments in heavy-duty trucks have been as profound or as controversial as autonomous trucks, ones that, simply put, drive themselves. Some are being tested on the road already, but there is much speculation as to when – or if – they will ever replace ones with drivers at the wheel.
We asked, “Which statement about autonomous truck technologies do you agree with the most?”
And the answers were:
61% – I don’t think this technology will ever be widely deployed.
23% – Self-driving technologies will change the driver’s role, but there will always be a need for a person in the cab.
16% Self-driving technologies will eventually do away with the truck driver as we know it today.
Company drivers and leased owner-operators – 61% each – said they did not think autonomous trucks would never be widely deployed. That compares to 25% of company drivers and 20% of owner-operators who agreed there would always be a need for drivers in trucks. And, 15% of company drivers and 20% of o-o’s think drivers’ days are numbered.
Responses to this question were relatively similar across the three age brackets:
I don’t think this technology will ever be widely deployed.
55% of drivers under 34 years old
59% of drivers 35-54 years old
62% of drivers 55 and over
Self-driving technologies will change the driver’s role, but there will always be a need for a person in the cab
27% of drivers under the age of 34
27% of drivers 35-54 years old
21% of drivers 55 and over
Self-driving technologies will eventually do away with the truck driver as we know it today
18% of drivers under the age of 34
14% of drivers 35-54 years old
17% of drivers 55 and over
But, how do they feel about non-diesel drivetrains?
Drivers in our survey were lukewarm – at best – on the idea of alternatives to diesel engines.
We asked, “How interested are you in electric and/or hydrogen powertrains?”
Here’s how drivers responded:
49% – I don’t care one way or the other
40% – I would quit before driving one
11% – If my fleet bought one, I would want to drive it
Only a small number beyond half (51%) of company drivers said they didn’t care one way or the other about electric and/or hydrogen powertrains. Slightly less than half – 45% – of leased owner-operators said they don’t care.
It was owner-operators who voiced the greatest objection to alternative fuel trucks. Fully 46% of them said they would quit before driving one. That compares to just 38% of company drivers who would.
Over half – 55% – of drivers 34 years old and younger said they don’t care one way or the other about driving trucks with electric and/or hydrogen powertrains. The other age groups were about equally split: 50% of 35 to 54-year-olds don’t care, while 49% of drivers 55 and older made that choice.
When it came to quitting before driving a non-diesel truck, that was the choice of 42% of drivers 35-54; 40% of drivers 55 and older; and just 18% of those under the age of 34.
However, the drivers in the younger age category were the most enthusiastic about driving one, with 27% agreeing with the sentiment of, “If my fleet bought one, I would want to drive it.” That compares to 11% of 55 and older drivers and 9% ages 35 to 54.
Here’s who responded to our survey
A total of 812 drivers responded to our survey; 566 company drivers and 246 leased owner-operators. Most – 53% – are over-the-road long-haul drivers.
These are mostly veteran drivers, part of the mature cadre of truckers many in the industry worry will soon begin entertaining thoughts of retirement. Fully 72% of respondents are 55 years old or older; 27% are between the ages of 35 and 54 while just 2% are 34 and younger.
Respondents are also drivers who have spent much of their lives on the road: 69% said they have driven for 20 years or more; 8% have driven 16 to 20 years; 6% for 11 to 15 years; 8% 6 to 10 years; and 7% for 5 years or less.
They are also serious road warriors with the miles to prove it. Twenty-six percent said they drive between 100,001 and 125,000 miles a year and the same number typically log from 75,001 to 100,000 miles. Another 17% drove between 125,001 and 150,000 miles and 8% logged over 150,00.
And, what did they get for all those miles?
Slightly more than half – 53% – said they earned a net income of over $75,001 in the last year; 31% earned $75,001 and $100,000 and 22% said they earned $100,000 or more.
Click here and check out this article by Jim Park.
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.
