ATRI: VALUE OF RISK AND SAFETY PER ANNUAL OPERATING EXPENSE

Doug Marcello

WHY IT MATTERS:  The value of safety and risk is not theoretical.  ATRI’s
Annual Operational Cost of Trucking Study quantifies its value and importance to the bottom line.  And with anticipated premium increases, it is now more vital than ever to reduce risk so that an insurance captive is a financially viable alternative for your company.

THE BIG PICTURE:  I recently wrote that safety was an investment, not a cost.  Management and operations should not think of it as a burden, but as a protection of the bottom line.

This value is brought home by ATRI’s Annual Operational Cost of Trucking Study for 2024.  Get a copy at An Analysis of the Operational Costs of Trucking: 2024 Update (truckingresearch.org)

Insurance and risk are major expenses.  The report quantifies the amount and demonstrates the crucial need to act to minimize this exposure.

THE NUMBERS:  For those in your organization that thrive on the quantifiable—you know, “if you can’t count it, it doesn’t exist—here are some data points for them.  And these do not include PD coverage.

–AVERAGE MARGINAL COST OF INSURANCE PREMIUM:  $.099 per mile or $3.99 per hour.

Think about it:  Your insurance costs you ten cent for every mile you run.  Four dollars for every hour your truck operates.

Consider that in relation to your rates.  And your bottom line.

The bad news—in 2014 premiums were $.071/mile and $2.86/hour.  That’s an increase of almost three cents per mile and almost $1.20/hour.

I became an attorney to avoid math, so check me. And I defer to the mathematically inclined to do the percentages.

These costs per mile vary per region of the country:

-Midwest: $0.083

-Northeast: $0.092

-Southeast:  $0.104

-Southwest:  $0.097

-West:  $0.105

And LTL’s—average cost at $0.045/mile.

-INCREASE-2022-2023:  Insurance premiums increased 12.5% in 2023 from the prior year.  ATRI did the math, so it is correct.

The only item to increase more was tolls (21.4%).  Wages “only” increased 7.6% and benefits only 2.7%.

Worse news—the “word” is that last year’s premium increase percentage will pale in comparison to this year.  I’m hearing increases of 15%-25% this year.

-TOTAL COST OF RISK:  Premiums are just the beginning.  If you’ve read my articles or heard me talk, it is the Total Cost of Risk that matters.

More importantly, it was a key element of the ATRI study on Impact of Rising Insurance Costs on the Trucking Industry  The Impact of Rising Insurance Costs on the Trucking Industry (truckingresearch.org)

“Total Cost of Risk”?  Premium plus deductible/retention plus cost of risk reduction technology.

ATRI analyzed the first two—premium plus the out-of-pocket deductible/retention amount.  The overall industry average out-of-pocket expense per mile was $0.036 in 2023 (or $1.44 per hour). That would make a total (premiums + out-of-pocket expenses) of $0.135 per mile or $5.43 per hour.

What it found per the combined premium plus out-of-pocket expenses based on fleet size, was as follows:

-Less than 5 trucks:  $0.175/mile

-5-25 trucks:  $0.204/mile

-26-100 trucks:  $0.171/mile

-101-250 trucks: $0.136/mile

-251-1,000 trucks:  $0.132/mile

-More than 1,000:  $0.110/mile

ACTION:  Inactivity is not an option.  You must attack the problem as you would other costs. You’ve read and heard me before:

-Proactively prepare to avoid exposure—avoid “Death by Dogma”;

-Attack the “Dark Period” when billboard attorneys gin up damages;

-Respond immediately—prepare today for accident response

-Litigate aggressively and be prepared to go to trial.

BOTTOM LINE:  It’s the bottom line.  A bottom line impacted by insurance premiums and out-of-pocket payments.  Further proof that safety is not an expense as much as an investment.

How Will AI Impact the Trucking Industry?

Michael McCareins

Artificial intelligence is becoming an increasingly popular global topic. From February 2022 to February 2024, Google searches for “AI” rose by a staggering 1000%, highlighting a common interest in just how impactful AI can become and what the implications might be.

The trucking industry is not exempt from those impacts. Self-driving cars have arrived and are here to stay. Therefore, you might think it’s only a matter of time before the arrival of self-driving trucks. If so, when might we see self-driving trucks on the road, and will truckers eventually be replaced by AI?

We’ll touch on these questions throughout this article, but it’s important to understand that there are other questions to ask and topics to consider beyond self-driving trucks when it comes to AI in trucking—especially considering AI is already impacting the trucking industry in a variety of ways.

Trucking business owners and anyone entering the industry should have an idea of the implications of AI in trucking. By knowing all of the AI-powered tools, how they’ve affected the trucking industry, and how they might be enhanced over time, you’ll likely be able to discover new ways to increase efficiency in your role.

What Is Artificial Intelligence?

Any machinery or software, such as a computer system, that is able to mimic human intelligence processes is considered artificial intelligence. Some of the most widely utilized examples of AI in society include the autocorrect feature on phones, navigation systems that can make real-time updates, voice-activated systems, and facial recognition.

While an AI-driven system like ChatGPT might make one assume these high-powered AI tools have suddenly advanced out of nowhere, it’s instead been a gradual progression and enhancement of these tools over time. This will continue to be the case moving forward.

AI Trucking Examples: How AI Is Currently Impacting the Trucking Industry

Artificial intelligence could have a massive impact on the trucking industry in the following years and decades, but it’s useful to understand that AI-powered tools have long been available in trucking. These tools have collectively made a major impact on how processes throughout the supply chain work. Below are a few examples.

AI Route Planning

In trucking, AI route planning occurs when a machine learning system relies on real-time data from GPS devices, traffic cameras, user-submitted traffic reports, and more to deduce the most efficient route for a truck or other delivery vehicle. Obviously, AI for route planning is utilized outside of the trucking realm as well. The vast majority of people use AI route optimization to find the quickest way to their destinations thanks to machines that can understand real-time data and output the most efficient solution based on said data.

Driver Assistance and Accident Prevention Systems

Automated driver assistance systems (ADAS) rely on both sensor technologies and AI processing algorithms to gauge the existing setting that a vehicle finds itself in. ADAS have become the norm in trucking, and the impact it’s made has been nothing short of lifesaving. ADAS systems have reduced vehicle accidents by 44%.

For instance, ADAS-powered systems detect blind spots and alert drivers to potentially unseen vehicles in their peripherals. This is hugely beneficial for truckers specifically, given that truck blind spots can extend up to 30 feet behind the trailer.

Other life-saving assistance features for truck drivers include automatic emergency braking and collision avoidance systems (CAS), which flash alerts to truckers before impending collisions. Even if a collision does unfortunately occur, the second or two of warning can save lives.

Driver Monitoring Systems

Driver monitoring systems (DMS) are specifically designed to detect distracted or tired drivers before an accident happens.

In trucking, one of the biggest challenges is preventing tired drivers from being behind the wheel. Truckers are in high demand, meaning existing truckers are forced to work longer hours, increasing the risk of accidents caused by drowsy truckers.

Driver monitoring systems often come in the form of sensors—such as wearable devices that detect signs of fatigue and alert drivers when it’s time to take a break. In some cases, these sensors can even track eye movements and other human cognitive states.

If a sensor detects fatigue, the application can take its intervention one step further thanks to AI. The system will suggest nearby rest stops or safe areas where a trucker can pull over, even suggesting nearby hotels or places to stay.

Predictive Maintenance

Predictive maintenance takes preventative maintenance one step further. While preventative maintenance involves simply performing routine maintenance check-ups to prevent future vehicle issues, predictive maintenance combines historical data with real-time monitoring to detect patterns that might suggest a piece of equipment might break or fail.

Given that equipment repairs and maintenance are some of the costliest expenses for owner-operators, this not only leads to safer vehicles, but also saves money.

Increased Data Consumption

Computer systems being able to consume large quantities of data isn’t an artificial intelligence process in itself, but trucking businesses have leveraged AI to take this data and turn it into actionable insights.

For instance, after inputting fuel consumption data, an AI-driven system can correspond said fuel data with vehicle types and even driver habits, revealing the efficiency of specific vehicles or truck drivers on their routes. This type of performance data can teach drivers how and where to improve; and on a larger scale, it can uncover significant cost-saving measures for trucking businesses.

Virtual Reality Systems for Driver Training

Virtual reality isn’t explicitly AI, but AI algorithms are required to create virtual reality environments.

In trucking, virtual reality is used for driver training. The combination of VR and AI allows drivers-in-training to experience simulations in the first person, preparing them for realistic, challenging situations behind the wheel. This can include configuring narrow turns, poor road conditions, severe weather conditions, or mountainous terrain.

Efficiency and Cost-Saving Measures

All of these above examples of AI in the trucking industry provide opportunities for trucking business owners to implement efficient and cost-saving measures in their business.

Even something as simple as route planning and real-time navigation is powered by AI. Imagine how difficult it would be to run a trucking business without a digitized map! Training methods for commercial truck drivers would look drastically different; VR (backed by AI algorithms) creates simulations that have become a significant chunk of the education required to become a driver. Predictive maintenance prevents trucking business owners from having to spend tens of thousands of dollars on broken equipment. Computers can analyze huge swaths of data and produce new data that can eventually prompt far more cost-efficient processes.

Owner-operators might be unaware of AI’s full presence and impact in the industry, but without it, their day-to-day life would look drastically different—and their pockets far emptier.

How Might AI Impact the Trucking Industry in the Future?

Now that you have an idea of how artificial intelligence is impacting the trucking industry right now, let’s look toward the future.

Increased Safety and Accident Prevention Measures

As technologies continue advancing, AI capabilities will become even more powerful.

Consider this: an emerging AI platform can scan drivers’ micro-muscle movements, which are reflective of brain activity that determines cognitive states, revealing how focused they are on the road. While this mechanism is only the result of a small startup company, it’s fair to assume that inventions like these will increasingly tap into mainstream business as years pass.

Additional Costs for Trucking Businesses

As AI technologies are introduced, owner-operators will need to keep up. Implementing these devices, training employees on how to use them, and managing them over time will become just another cost of starting a trucking business.

Ever-Changing Job Responsibilities and Day-to-Days of a Trucker

It’s no secret that experienced truck drivers have had a hard time keeping up with all of the emerging technologies. And for some, the constant technological oversight—such as electronic logging devices (ELDs) that monitor essentially every movement from within the cabin—has proven aggravating. These ELDs and AI-powered surveillance devices have made many truckers believe that they aren’t trusted by their employers, despite being in place to increase safety and efficiency.

Potential for Newfound Legal Implications

As automation progresses, the government will have to keep up by implementing rules and regulations for trucking businesses to adhere to.

New laws regulating AI are important. However, as it stands, the U.S. doesn’t have a federal law surrounding the use of AI. Artificial intelligence legislation is widely different on a state-by-state basis. Meanwhile, in 2023 the EU invoked the AI Act, which became the world’s first comprehensive AI law. In short, this act ensures any new use of AI does not pose a systemic risk.

The lack of wide-scale regulations involving AI could prove difficult for owner-operators to navigate. But if, or when, any government restrictions or laws on AI are passed, it will be critical for trucking business owners to gain an understanding of how it could affect their businesses, along with implementing this information into their new driver training.

Different Job Opportunities

Will trucking jobs be replaced by robots? This is a tricky question when it comes to AI.

There are plenty of unknowns pertaining to how AI will affect specific trucking roles in the future. But we do know one thing: jobs in trucking will look different because of artificial intelligence. We already have examples of this throughout the vast majority of professions. Many positions in the trucking industry require workers to input and analyze data produced by AI before using problem-solving skills to come up with takeaways from the data. As trucking industry employees gain experience with doing so, it can eventually qualify them for positions such as data analysts and logistics managers. In fact, data analysts across all industries are expected to increase by 25% through 2029.

Furthermore, drivers will be required to know how to interact with new AI inventions to keep up. There might even be blended roles—positions where tasks are commonly completed by AI-powered systems but need human oversight.

That brings us to the most intriguing dilemma surrounding AI in trucking: the emergence of autonomous semi trucks.

Self-Driving Trucks: Possible or Not?

So, will AI replace truck drivers? It’s a legitimate question. You see self-driving personal vehicles on the road, so it’s inevitable that self-driving trucks are in the works. But when?

We could be only a few years away. In early 2024, one self-driving trucking firm announced they had finalized the design of a self-driving trucking system that could be ready for use by 2027.

However, reports show that we won’t see self-driving trucks on the road en masse for several years, if not decades. A more realistic short-term scenario is hybrid trucks, where autonomous trucks are monitored through the presence of a human. Sure, the job responsibilities might look different, but human oversight would still be required.

While yes, there is a future where AI could replace truck drivers, these autonomous vehicles will still require human supervision and control as they are first introduced. We’re not close to a world where driverless semi-trucks can be trusted on the road.

Implications of AI in Trucking: Weighing the Pros and the Cons

There are undoubtedly both benefits and potential pitfalls of AI’s integration in the trucking industry.

Pros of AI in Trucking

The benefits of AI in trucking are significant. We’ve already seen proven positive results of AI’s integration into the trucking industry via driver assistance and specific accident prevention features reducing the number of trucking-related accidents.

Virtual reality wouldn’t be possible without AI, and it’s been a huge help for helping new drivers learn how to navigate tricky situations such as driving in mountainous terrain, driving in tough weather conditions, and making narrow turns.

AI route planning, which is the result of GPS systems using real-time data to inform drivers of the quickest routes, ensures optimal efficiency for trucking businesses when their drivers are on the road. This is just one example of AI in trucking acting as a cost-saving measure. Predictive maintenance features also prevent major, unexpected truck system failures, alerting drivers of dormant issues before the problem turns even more costly and a truck breaks down while on the road.

Finally, while self-driving trucks do pose a threat to the driver workforce (a significant con in itself), the possibility of fully autonomous semi-trucks does offer a glimpse into a future where trucking businesses don’t have to devote as much of their budget to hiring drivers. There’s also a national truck driver shortage, so these automated trucks could be a positive from the trucking business owner point of view. And from drivers’ perspective, even driverless semis would still require human supervision and intervention, possibly creating an entirely different sector of jobs.

Cons of AI in Trucking

The most newsworthy and potentially impactful con of AI in trucking is the possibility of the possibility of truck drivers being replaced by AI. In the U.S. alone, this puts the 3.5 million people who make a living driving trucks at odds. However, since we’re by all accounts several years away from this posing a real threat to the workforce, there isn’t a whole lot of data surrounding what this might exactly mean for the workforce.

On a smaller scale, the downsides of AIs integration in the trucking industry include the possibility of overreliance, misuse, or failed oversight of AI-powered safety features. There are potential legal ramifications for trucking companies who don’t do their due diligence. And to implement all of these features can prove costly for new or small owner-operators who are operating on a tight budget.

As for truck drivers, job responsibilities and required skill sets are also ever changing thanks to the introduction of advanced technology. This can be difficult for more experienced drivers who never had to worry about knowing how AI-powered systems and devices operate when they first began their careers.

In-Summary: How Will AI Impact Trucking?

The question, “how will AI impact trucking,” is one that we already know much of the answer to because its impact has already been felt. Many drivers may not realize just how much of their experience when operating a vehicle has already been altered by AI. Predictive maintenance, accident prevention measures such as lane change assist, and AI route planning all play massive roles for standard motor vehicle drivers and truck drivers alike.

That said, there’s a long way to go for AI in trucking. Semi-trucks are getting more autonomous by the year, and a future of completely self-driving trucks is very much something the entire industry needs to prepare for. However, we’re yet to fully understand what the ramifications of the future might be.

Trucking Attorneys Need to Get Aggressive, Expert Says

Plaintiff Lawyers Put Transportation Industry in Crosshairs of ‘Destructive Machine’

Eric Miller

INDIANAPOLIS — Litigation psychologist Bill Kanasky has a few rather frank words of advice for truckers and their attorneys facing potential nuclear verdicts: Get in the game early, get more aggressive and prepare your defense witnesses so that they don’t say something dumb in depositions.

Truckers should know that plaintiff attorneys in trucking-involved crashes are the “bad guys who exploit the system” and will strike hard and fast in a lawsuit, according to Kanasky, a longtime observer of courtroom tactics as senior vice president of litigation psychology at Courtroom Sciences Inc.

“The transportation industry is in the crosshairs of the plaintiffs’ bar, a very well coordinated, oiled, highly effective destructive machine,” he said.

“The odds are they’re planning that the defense won’t be ready,” Kanasky told a large group of executives attending a June 2 session at the Truckload Carriers Association’s Safety and Security Meeting. “The trucking industry needs a major, major change in philosophy to get more aggressive. Your world is changing.”

As for plaintiff attorneys, Kanasky said they have been very open, publicly stating that their objectives are to go after the big money in lawsuits.

“That’s how arrogant they are,” he said. “The first step to getting nuclear verdicts or nuclear settlements is attacking your witnesses, your corporate reps, your safety directors, your heads of HR, your drivers, ripping them to shreds. That’s in a deposition, it’s on video and an incredible amount of economic leverage going forth. That’s the first step.”

Then they do a lot of testing of their cases with mock juries to figure out if they have a winner, Kanasky said.

“They figure it out before your legal team figures it out,” he said. “Then we’re in the first quarter of the football game and the score is 21-0. If you learn one thing, learn this: You’ve got to win the battle in these depositions.”

If not, then plaintiff attorneys will seek excessive demands, he added.

“They have figured out everything about the case, and you don’t have a clue about it,” Kanasky said. “Some of them think why take the settlement money — go to the courtroom, get a massive nuclear verdict.”

Such legal moves by plaintiff attorneys have been called the “reptile method,” a tactic that attempts to convince juries that in accidents with trucks, they need to send messages with large verdict awards.

Truckers commonly express concerns about lawyers on billboards trying to solicit clients involved in accidents with large trucks. But Kanasky says they’re not the worst problems. They tend to move on after getting quick settlements that are much smaller than those the more serious plaintiff attorneys are looking for.

“They’re beatable. You just have to know how to play the game,” he said. “What they do is increase the number of claims, but they don’t increase nuclear verdicts.”

Kanasky said bad depositions are preventable, but there are a number of reasons that truckers get into trouble during depositions that can virtually guarantee a nuclear verdict. Some of them include:

• Problem witnesses who are unable to answer the difficult questions that plaintiff attorneys use to lead them down a dangerous path
• An ineffective witness testimony strategy when a trucking witness is argumentative and tries to win the deposition
• An emotional witness who gets easily upset during questioning
• A witness who has a “cognitive breakdown”

How to mount an effective DataQs challenge

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.

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

Alex Lockie

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

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

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

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

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

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

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

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

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

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

How to tell if your ELD will be revoked

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

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

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

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

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

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

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

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

Christina Marinakis

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

What Is the Reptile Brain Trial Strategy?

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

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

1. REPTILIAN COMPLEX

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

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

1. PALEOMAMMALIAN COMPLEX

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

1. NEOMAMMALIAN COMPLEX

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

Hallmarks of the Reptile Strategy in Litigation 

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

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

ESTABLISH DANGER TO COMMUNITY

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

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

JURY HAS THE POWER TO IMPROVE THE COMMUNITY’S SAFETY

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

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

The Impact of the Reptile Brain Approach on a Jury

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

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

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

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

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

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

Countering the Reptile Approach

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

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

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

REMEMBER WE ARE NOT REPTILES

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

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

EMPHASIZE THE DETAILS OF A CASE

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

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

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

REFOCUS TO THIS PLAINTIFF AND THIS CASE

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

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

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

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

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

FIGHT FIRE WITH FIRE

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

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

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

Conclusion

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

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