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

Christina Marinakis

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

What Is the Reptile Brain Trial Strategy?

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

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

  1. REPTILIAN COMPLEX

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

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

  1. PALEOMAMMALIAN COMPLEX

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

  1. NEOMAMMALIAN COMPLEX

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

Hallmarks of the Reptile Strategy in Litigation 

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

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

ESTABLISH DANGER TO COMMUNITY

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

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

JURY HAS THE POWER TO IMPROVE THE COMMUNITY’S SAFETY

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

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

The Impact of the Reptile Brain Approach on a Jury

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

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

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

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

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

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

Countering the Reptile Approach

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

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

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

REMEMBER WE ARE NOT REPTILES

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

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

EMPHASIZE THE DETAILS OF A CASE

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

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

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

REFOCUS TO THIS PLAINTIFF AND THIS CASE

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

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

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

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

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

FIGHT FIRE WITH FIRE

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

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

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

Conclusion

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

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

What attorneys need to know about Reptile Theory

Thomson Reuters

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

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

What is the Reptile Theory?

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

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

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

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

What about the “Golden Rule?”

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

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

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

What does Reptile Theory look like in practice?

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

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

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

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

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

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

Lexis Nexis – Legal Insights

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

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

What is the Reptile Theory?

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

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

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

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

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

Spotting Reptile Tactics in the Wild

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

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

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

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

Responding to Reptile Tactics

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

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

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

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

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

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

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

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

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

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

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

 

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

When Must Truckers Complete a Driver Vehicle Inspection Report?

Deborah Lockridge

A common misconception about driver vehicle inspection reports for truckers and other commercial drivers is that one is required at every pre-trip inspection.

  • How often must a walk-around pre-trip inspection be conducted? Before every trip.
  • How often is a post-trip inspection required to be performed? After every trip.

When Does a Driver Have to Turn in a DVIR?

“There’s a lot of confusion in the industry,” says Tom Bray, a business advisor with J.J. Keller. “The driver needs to do a pre-trip — they have to be satisfied the vehicle’s in good operating condition before they drive it. That’s the bottom line. There’s no report required.

“If there’s something wrong with the vehicle, the driver needs to get in touch with you and say, hey, this needs to be fixed before I can drive it.”

If a driver discovers a safety-related defect during the pre-trip inspection, while there may not be a federal requirement to file a DVIR, Bray says, you still need a process in place for how the driver reports it. If he’s in the yard, does he head to the maintenance shop? If drivers are on the road when they find something, do they know who to call or message to work with to get that fixed?

Post-Trip Inspections and DVIRs

A sample driver vehicle inspection report from FMCSA.

Source: FMCSA

It’s at the end of the day, during the post-trip inspection, that finding a defect triggers the legal requirement from the Federal Motor Carrier Safety Administration to file a DVIR.

“At the end of the day, the driver does a post-trip, which can be as simple as a quick walk around,” Bray says. “But at that point, that’s where the driver needs to submit a report to the company saying, ‘I have this defect on the vehicle.’ That’s what’s required in the regulations. If there’s a defect on the vehicle, the company has to be notified, the driver has to complete a DVIR and submit it.

Some companies choose to have the driver submit a daily DVIR, defects or not, and that’s allowed in the regulations — it’s just not required by the FMCSA.

The Importance of the Post-Trip Inspection

“Everybody talks about the pre-trip,” says Michael Dominguez, VP of business operations, procurement and fleet management for Transervice Logistics.

But, he says, the post-trip inspection is actually more important.

“If I do a post-trip inspection flawlessly, and I catch everything, and I have a maintenance shop or provider that now can have from 5:00 in the afternoon to 7:00 in the morning to repair it, the chances of me running a real tight ship is greater because now I’ve got extra time for the maintenance to get done.

“We like to shift the emphasis to the post-trip, because the pre-trip is then automatic. I’ve already done my post-trip, I’ve done all the repairs, my pre-trip is a whiz, I’m just making sure that everything is signed off on.”

He says he learned this from one of the first DOT officers he had come in to help train drivers.

“If we put a tremendous amount of effort on the post-trip when it’s back at the yard, when I have a technician that can take the next two hours fixing it, It changes the results tremendously.

“So everybody talks about the pre-trip. They know there’s a post trip, but the emphasis really needs to be reversed. The post-trip needs to be the best.”

DVIRs and Lighter-Duty Commercial Vehicles

Another point of confusion about driver vehicle inspections and DVIRs, Bray says, is in lighter vehicles.

“The requirement applies to anything 10,001 pounds or more that you’re using in interstate commerce. And there’s a lot of people in that 10,001 to 26,000 pound category who don’t think it applies to them, because their drivers don’t have to have a CDL. So they don’t have to know how to do inspections, because they’re not taking a test on it.”

 

Research exposes alarming cybersecurity vulnerabilities of ELDs

Tyson Fisher

New academic research reveals how vulnerable ELDs are to cyberattacks made by hacking into a truck’s system in seconds while driving alongside it.

Jeremy Daily, associate professor of systems engineering at Colorado State University, is no stranger to truck cybersecurity. He co-founded the CyberTruck Challenge in 2017 and has published numerous research papers related to the topic. However, his latest research exposes an alarming truth: Some electronic logging devices are easy to hack.

Along with research assistants Rik Chatterjee and Jake Jepson, Daily wanted to know how the ELD mandate affects cybersecurity for trucks. The researchers found they not only could access a truck’s accelerator pedal by simply driving by it but also could infect a fleet of trucks with malicious malware by hacking into just one ELD.

For this experiment, Jepson was able to take apart an ELD and do some reverse engineering. He found the default Wi-Fi password right away and from there spent several months developing a malicious version of the ELD’s firmware. Jepson told Land Line Now that this was his first time reverse-engineering a device and admitted a more experienced hacker likely could exploit vulnerabilities much faster.

Watch Land Line Now’s interview with Colorado State University researchers:

The researchers’ next task was to infect a truck – which proved remarkably simple.

Equipped only with a laptop and Wi-Fi range extender, they drove alongside a moving 2014 Kenworth T270. In just 30 seconds, they were able to access and infect the truck’s ELD with malicious firmware that allowed them to slow the truck down. Chatterjee, who was driving the Kenworth, said it would not speed up no matter how hard he pressed down on the pedal.

In this scenario, the researchers decided to slow down the truck for safety reasons. However, they just as easily could have forced the truck to speed up. And with access to the truck’s operating system, a hacker could access other functions, as well.

As if hacking one ELD were not bad enough, Daily and his team were able to infect several trucks by initially infecting just one.

The malicious firmware included what the researchers called a truck-to-truck worm. An ELD infected with this firmware can scan for nearby ELDs. Once a vulnerable one is identified, the truck-to-truck worm can spread the virus. The newly infected ELD then can repeat the scanning process, increasing the range of viral spread. This process can allow a hacker to infect an entire fleet of trucks that are close together, making truck stops, rest areas and yards prime targets.

ELD technology and regulations

Although only one brand of ELD was used, the researchers pointed out that manufacturers are using similar technology.

There are hundreds of certified ELDs available, but the research paper reported that there are relatively few distinct models. Essentially, companies are rebranding ELDs, rendering devices “clones of each other with minimal variations,” according to the study. Consequently, vulnerabilities present in one brand of ELD may be present in many others as well.

Another point of concern is the lack of regulation regarding ELD cybersecurity. Devices must meet technical specifications before registering with the Federal Motor Carrier Safety Administration, but manufacturers need only to self-certify.

The National Motor Freight Traffic Association has issued a list of recommended security requirements for ELDs. However, those recommendations appear to be largely ignored.

“I can say very confidently that if that guidance had been followed from the industry, then we wouldn’t have been able to demonstrate these exploits that Rik and Jake developed,” Daily told Land Line Now.

The researchers reached out to the ELD manufacturer before publishing the research. Daily said the manufacturer worked with him and his team to develop a firmware patch addressing the vulnerabilities.

What can truckers do to secure their truck?

There are measures truckers and fleet owners can take to mitigate any cybersecurity vulnerabilities.

First and foremost, truckers need to keep their ELDs updated. Like smartphones, ELDs may require periodic security updates that could include patches for newly discovered vulnerabilities. And if truckers have access to the device’s Wi-Fi password, they should change it to a stronger one.

Daily also believes in the power of the free market. If those in the industry – especially large fleets that buy in bulk – purchase only highly secured ELDs, it will force makers of less-secure ELDs to sink or swim.

The good news is that the industry has responded well to cybersecurity concerns in recent years. The truck used in this experiment was a 2014 Kenworth, a 10-year-old truck. In the past decade, truck manufacturers have improved security measures within their systems.

Click on links below to see videos on ELD vulnerabilities.

https://youtu.be/SEON7PMZwDM

https://youtu.be/IhsHIYh_haI

https://youtu.be/VV-EsrAsVRg

Top 5 accident response tips for trucking companies

Allysa A. Adams

The moment an accident occurs is not the time to put your company’s accident response plan into place.

Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit.

Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach allows you to collect evidence from the scene, perform surveillance, gather statements, or examine social media evidence to use in your favor at trial. Keep in mind these top 5 tips when preparing to respond to an accident:

Act fast and be prepared. When an accident occurs, the faster you act, the better you can respond. To effectively do this, you must start well before an accident occurs. The best place to start is by training your dispatchers on how to respond when an accident call comes in and let them know what they should be asking the driver, what information to obtain, and what additional individuals – including attorneys or field adjusters – to contact to help with the response.

Do not take statements from your driver. Do not have your driver make any written or recorded statements regarding the accident. This will have to be produced to opposing counsel if there is any future litigation. These statements will be used against your driver if any inconsistencies pop up later. Also, advise your driver not to give any statements to anyone or talk to anyone else about the accident. One thing you can do to completely protect your driver’s version of events is to immediately have an attorney speak to the driver. Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.

Bring in outside help. You will want to hire an independent adjuster to help investigate the accident. I recommend in all accidents, both big and small, you hire an independent adjuster to call the other driver and witnesses to obtain their statement. If liability is not in your favor, you can take proactive steps to avoid a future lawsuit, like paying for the damages to their vehicle or resolving any claims for bodily injury before they engage an attorney. Payment to a claimant up front can save future attorney’s fees and any future judgment. It is also good to have both sides of the story so you can get a full view of the accident.

Depending on the situation, you can also hire an independent adjuster for further investigation. If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident. I always ask drivers if they know if there was a camera in the area and if they had a dash camera. These videos can turn a disputed liability case into one that you can argue completely in your favor. Also depending on the accident, especially in serious accidents, you may want to hire an independent adjuster to go out to the scene and take photographs. Also depending on the situation, especially in serious cases, you may want to hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site to determine how the accident happened.

Social media. When you find out about a more severe accident, you or your attorney’s office should look for information concerning the accident. You can find out a lot of information about an accident just by checking on Facebook and other social media. Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.

Another important thing to do in these cases is to have your attorney or independent adjuster run a public record search and a social media search for the claimant. Make sure to keep checking on social media to see if they mention their injuries. Usually, once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately if you think there could be future litigation. Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.

Preservation of evidence. You should make sure to preserve any evidence from the accident. This would include pulling the driver’s logs for the week before the accident. If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation. If not saved, you can be accused of spoliation and may have sanctions issued by the court. If a preservation letter is received, have counsel send your preservation letter to have the claimant preserve any evidence they have regarding the accident.

This is not an exhaustive list and assumes accident response measures are planned before the accident. Please contact me for questions your trucking company has on accident response or for free accident response packets, forms, and checklists.