Todd Dills & Max Heine
Clark Freight Lines, with 180 trucks, used to routinely file lots of DataQs RDRs (Requests for Data Review) but met with little success, said Vice President Danny Schnautz. He gave the example of a violation for an air leak that wasn’t in fact a safety violation.
“What we found out was it made the police department really mad,” he said, particularly when the challenge was filed with little in the way of hard evidence. “Now we don’t dispute it unless we have real proof.”
Depending on what the violation is, and how attentive to the allegation any individual operator was during the inspection, such well-backed cases might be few and far between. Even photographic proof, sometimes, doesn’t do the trick if it’s less than conclusive, Schnautz said.
He and others bring plenty of advice to the table about pursuing RDRs.
Navigating the system itself can be one challenge, but the most common hurdle is gathering enough evidence to make a persuasive case.
Focus on evidence and facts
As Schnautz suggests, setting up a successful DataQ begins at the scene of the crash or routine roadside or weigh station inspection. “I’ve worked with thousands of DataQs,” said Chris Turner, CVSA’s director of crash and data programs and a former Kansas Highway Patrol officer. “The best thing you can do as a carrier is to make sure your DataQ is legitimate.” Before ever filing, have the evidence on hand to communicate “not just where you feel something is wrong. Make sure you have an underlying set of facts that this is wrong.”
In Eagle Express owner Leander Richmond’s case detailed in the first part of this series, he came armed with the set of facts that accompanied his driver being pulled over and inspected, where a violation of the federal handheld-cell-use regulation was noted in an inspection report. He pointed to the language of that regulation, also adopted in Michigan state code (where his driver had been stopped), to show the rule as written was not violated by his driver.
Be savvy with your attitude
Eagle Express owner Leander Richmond eventually had to bring to enforcement’s attention the language of the federal handheld-cell-use regulation to finally convince them that his driver had not violated the law.Turner, formerly a trooper and leader with the Kansas Highway Patrol’s truck-enforcement unit, urged those receiving a violation to “ask the officer to explain it” at roadside. Too often, when drivers are stopped they “freeze up a little bit.” He encourages fleet managers to train drivers to really engage with the officer about his thinking when violations are written in the first place.
Understanding the officer’s rationale, if it turns out to be in contradiction with whatever regulation he/she believes you’re violating, will give you part of what you need in any eventual challenge.
An officer’s writeup might be clearly incorrect, but in RDR filing “you don’t necessarily want to tell the officer they’re wrong because it’s not going to be received that well,” said Christopher Haney, director of safety and human resources for Payne Trucking, a 130-truck fleet based in Fredericksburg, Virginia. Instead, focus on “the regulatory perspective.” Make sure you or your drivers know enough to be able to collect the evidence to show where an officer “may have misunderstood the situation.”
Document the scene and equipment
“After a crash,” Turner added, “make sure everybody’s OK, then take the time to walk from one side of the scene to the other and snap photographs and take pictures of any violation – you want as many of the violations to be [marked] post-crash as possible.” Equipment problems that resulted from the crash “won’t be counted in your [carrier] SMS or [driver] PSP” profiles, where violations records are kept and made available to the public and prospective employers.
Carriers and drivers who are diligent during roadside stops and post-crash inspections “have a way higher success rate” than others, Turner said.
In one case for Payne Trucking, the company had a crash reported to its profile because the officer recorded the car in the collision as requiring a tow-away from the scene. (Accidents are recordable and become associated with a carrier’s record if there’s a fatality, an injury, or vehicle damage sufficient to require a tow-away.) However, a dashcam in the Payne truck “showed the officer getting into the car and driving it around … to where the truck picked it up.” The evidence effectively removed the crash from the carrier’s profile.
Haney echoes Turner when it comes to post-crash inspections, too, and the need for on-scene diligence for any driver. A driver’s notes and pictures about post-accident damage can mitigate against an inspector’s failure or error in designating violations as caused by the accident, a problem Haney says has gotten less prevalent in recent years.
“If they don’t identify on the inspection that these were post-accident damage, then it gets counted on the CSA BASIC,” he said. Such errors must be challenged, he said. In some cases, “this determines whether or not you get insurance next year.”
Another source of on-the-scene facts can be notes made by the inspecting officer, Haney said, which many truckers and carriers don’t realize they can request. Those notes can provide helpful information, such as giving insight to the officer’s rationale behind a violation.
Preparing to file a DataQ
If you’ve never filed an RDR, you’ll need a Federal Motor Carrier Safety Administration portal login set up if you’re a carrier with authority to use to access the system. If you’re a driver or leased owner-op, establish a login directly within the DataQs system itself, via DataQs.FMCSA.DOT.gov. There you’ll see the login module and the “My DataQs” section, where you start any review request.
“Make sure you get all your ducks in a row before you submit the DataQ,” said Trooper Jeremy Disbrow of Arizona. He said the fairly intuitive system guides you through the process to attach evidence, whether photos or electronic-log data downloads or other supporting documents.
Before starting, though, make certain you have what an FMCSA spokesman, speaking on background, referred to as the “report number” for the record you’re challenging. That should be shown in the CSA Safety Measurement System profile for your business or the Pre-Employment Screening Program report if you’re a driver or leased operator.
A police accident report, for instance, will likely have a different report number, the spokesperson said, so be sure to use the right one. If you provide the right record number and the inspection and violation are already within the system, DataQs will pre-populate much of the other information that the agency normally requests — the inspection report number, the issuing state and date of inspection.
Be thorough and professional in filing
In your RDR, use language that shows intent to “be thoughtful, clear and concise in describing what the error is believed to be,” said the FMCSA spokesman, keeping in mind there are hardworking folks in the various state jurisdictions and in FMCSA itself on the other side of the computer “reading, reviewing and, ultimately, making a decision … The FMCSA team strives to conduct themselves with courtesy, professionalism and respect – and such mutuality is appreciated.”
By submitting all required and otherwise pertinent information up front, said Disbrow, “it helps us get through more quickly” once the request makes it way to the appropriate state jurisdiction, if need be. “Usually, doing a back-and-forth over the span of weeks is what delays that process when we have to keep requesting documents.”
Don’t forget the final step in the process. Too many filers “do not carefully read and follow the instructions on the DataQs website,” said the agency spokesman. “Occasionally, we will learn about requests being automatically closed or otherwise rejected for the simple reason that the requestor failed to click ‘submit.’”
After you’ve filed
Expect to wait a few weeks, or longer if you’re asked to submit other documents. The time to close reviews averages around two weeks, federal DataQs data shows.
If your request is denied, don’t be afraid to appeal, said CVSA’s Turner. While there’s not an actual “appeal” button in the system, Turner advises to use the “reply again” function to “ask for an appeal to a secondary level or for a state training officer to look at it. They can usually look at it and say, ‘Yeah, that’s right,’ or not.”
Some states, like Minnesota and Arizona, have appeals review boards they convene for intractable disputes, but most don’t. When requesting an appeal above the first level, Turner notes the possibility of asking for review of any officer-shot video or inspection notes if it conceivably would back your argument.
Don’t neglect adjudicated citations
In 2014, FMCSA announced this policy for dealing with inspection-report-noted violations with associated citations adjudicated in a court of law. With the exception of a conviction of a lesser charge or the levy of punitive fines and court costs, adjudication of a citation can result in removal of the associated violation from carriers’ Safety Measure System profiles and drivers’ Pre-Employment Screening Program reports. The SMS record can be a key element of a carrier’s ability to do business with freight partners and obtain affordable insurance. Hiring carriers rely on drivers’ PSP reports in vetting backgrounds before a hiring decision is made.
Perhaps the simplest route toward success in a violation challenge is when you’ve received a not-guilty verdict on in the court system for something associated with the citation/ticket. In 2014, FMCSA introduced a policy to remove violations from its system or reduce severity weighting if a ticket was thrown out by the court or if the cited driver was convicted of a lesser charge.
While this can prove to be low-hanging fruit, it can take a lot of time. The agency will ask for the inspection report number, the issuing state and date of inspection. For the citation, then, it wants the citation/ticket number and associated violation codes on the inspection report. Copies of court documentation, too, are required, and copies of both the ticket and inspection report are recommended.
As illustrated in the graphic from Part 3 of this package, violation challenges associated with citation adjudication are more likely than any other category to be successful, so don’t neglect to file a DataQ after a favorable court resolution of a ticket.
In some cases, this isn’t an option. Inspection-reported-noted violations that accompany written warnings, such as for speeding, can’t be taken to court – and therefore adjudicated – because no citation was issued.
Alex Lockie
The Federal Motor Carrier Safety Administration recently revoked three electronic logging devices in a two-week span (One Plus ELD, ELD ONE and Nationwide ELD). Now, an ELD service provider is speaking up about what he feels has changed — and possible signs your ELD could be next on the chopping block.
Mike Riegel, who owns Blue Ink Tech (provider of the BIT ELD), recently wrote this story outlining how the FMCSA goes about reviewing and revoking ELDs. Riegel believes the agency is currently “cracking down on ELD providers who sell products that don’t 100% align with the ELD mandate,” and notes that any time a driver is transferring their hours data to an inspector, the inspector is checking that not just the driver, but the ELD itself, is compliant.
If the inspection does find issues with the ELD provider’s data, that provider gets an email like the one below, received by Riegel.
Messages like this from the FMCSA go out to ELD providers citing issues in the technical parameters, and requesting fixes.Courtesy of Mike Riegel
It’s important to note that Blue Ink Tech itself isn’t at risk of falling out of compliance and having its ELD revoked. “When an ELD data transfer is found to have errors, the FMCSA technical team will highlight the errors and request a plan of action to fix the issues within 72 hours,” Riegel wrote. “If there is no reply to the email, it is likely that more attempts will be made to get a plan of action, and if nothing comes back the provider will be revoked.”
But if the ELD provider does get back with a plan of action, he added he feels “the FMCSA will be pretty lenient and allow the provider the time they need to take the corrective action.”
Riegel provided context for the email above in response to Overdrive queries. It directly followed a roadside inspection of “one of our ELD customers,” he said. “It looks like their system is getting more advanced at picking out items that do not align 100% with the mandate. Our issues were small, and about the length of notations for [records of duty status] and the resolution of the GPS data while on Personal Conveyance. I think this advancement of finding issues during roadside inspections could be why the FMCSA is able to crack down on more of the ELD providers that are not following the mandate.”
The FMCSA wouldn’t say outright if there’s any new crackdown underway, or some new methodology, but didn’t deny it either.
“FMCSA has been actively monitoring compliance of ELDs since the implementation of the rule,” said an FMCSA spokesperson. “Our investigative process has certainly evolved, resulting in more efficient and sophisticated methods of identifying ELD vendor compliance issues, as well as ELD misuse.”
Riegel is also correct that roadside stops play a role in finding issues with ELDs, but FMCSA Compliance Investigations staff’s in-person carrier audits and other reviews “also play a vitally important role in identifying potential ELD issues,” the FMCSA spokesperson added.
How to tell if your ELD will be revoked
The FMCSA’s complete technical standards, with which ELD providers must comply, are laid out in voluminous detail in regulation. The revocation process is laid out there, too, and it includes required notice by the agency to the provider, a time frame for response, and consequences that follow. You can find that process in the “Removal of Listed Certification” section at the previous link. For an owner-operator, determining whether or not a provider is 100% complying with technical standards might seem an impenetrable task, but Riegel laid out what he felt could be common signs that an ELD isn’t long meant for the FMCSA’s certified-device registry.
His first recommendation boils down to this: If it sounds too good to be true, it probably is.
If your ELD allows you to edit automatically recorded drive time, that’s never going to be compliant. “A common example of drive time editing is when a driver forgets to indicate Personal Use before moving their truck to a different parking spot. If you are able to edit that Driving status to PC or Off Duty, or if you are able to delete the status altogether, this should be cause for concern,” he wrote.
During the early days of the ELD mandate, the prior Automatic Onboard Recording Device standard did allow for editing automatically recorded drive time, though not by the driver. Under the AOBRD standard, those “back office” or administrator-account edits weren’t visible to roadside inspectors, either. The AOBRD grandfather period ended in late 2019, however, and under the current ELD standard, such drive-time edits are impossible. All edits otherwise, too, are visible at roadside with data transfer.
Other issues center around customer service and staying updated, in Riegel’s view. Poor technical support and customer issue resolution? Don’t expect that provider to be very responsive with timely communication to the FMCSA, either, in the event their compliance checks flag an issue. The ELD isn’t compatible with other APIs? Could be another bad sign that the ELD doesn’t play well with others, or might not be keeping up with the latest updates, wrote Riegel.
He also felt that “white-labeling,” when one company sells an ELD supported by another company’s technology, held potential to create barriers to timely updates. There’s nothing illegal about the practice of white labeling, of course. But if for instance the FMCSA reaches out to the original provider with an email like the one shown above, he felt the white-label version might miss the necessary updates to the original — opportunity for it, thus, to pop out of compliance.
Finally, he advised, it’s good practice to occasionally check in at the provider’s website for updates and timeliness. The FMCSA frequently reaches out to ELD providers to make updates. If the website feels like the lights are on but nobody’s home, it could be a sign that noncompliance looms just behind the next update.
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:
- 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.
- 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.
- 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.
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!
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.)
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.”
