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.”
Tyson Fisher
New academic research reveals how vulnerable ELDs are to cyberattacks made by hacking into a truck’s system in seconds while driving alongside it.
Jeremy Daily, associate professor of systems engineering at Colorado State University, is no stranger to truck cybersecurity. He co-founded the CyberTruck Challenge in 2017 and has published numerous research papers related to the topic. However, his latest research exposes an alarming truth: Some electronic logging devices are easy to hack.
Along with research assistants Rik Chatterjee and Jake Jepson, Daily wanted to know how the ELD mandate affects cybersecurity for trucks. The researchers found they not only could access a truck’s accelerator pedal by simply driving by it but also could infect a fleet of trucks with malicious malware by hacking into just one ELD.
For this experiment, Jepson was able to take apart an ELD and do some reverse engineering. He found the default Wi-Fi password right away and from there spent several months developing a malicious version of the ELD’s firmware. Jepson told Land Line Now that this was his first time reverse-engineering a device and admitted a more experienced hacker likely could exploit vulnerabilities much faster.
Watch Land Line Now’s interview with Colorado State University researchers:
The researchers’ next task was to infect a truck – which proved remarkably simple.
Equipped only with a laptop and Wi-Fi range extender, they drove alongside a moving 2014 Kenworth T270. In just 30 seconds, they were able to access and infect the truck’s ELD with malicious firmware that allowed them to slow the truck down. Chatterjee, who was driving the Kenworth, said it would not speed up no matter how hard he pressed down on the pedal.
In this scenario, the researchers decided to slow down the truck for safety reasons. However, they just as easily could have forced the truck to speed up. And with access to the truck’s operating system, a hacker could access other functions, as well.
As if hacking one ELD were not bad enough, Daily and his team were able to infect several trucks by initially infecting just one.
The malicious firmware included what the researchers called a truck-to-truck worm. An ELD infected with this firmware can scan for nearby ELDs. Once a vulnerable one is identified, the truck-to-truck worm can spread the virus. The newly infected ELD then can repeat the scanning process, increasing the range of viral spread. This process can allow a hacker to infect an entire fleet of trucks that are close together, making truck stops, rest areas and yards prime targets.
ELD technology and regulations
Although only one brand of ELD was used, the researchers pointed out that manufacturers are using similar technology.
There are hundreds of certified ELDs available, but the research paper reported that there are relatively few distinct models. Essentially, companies are rebranding ELDs, rendering devices “clones of each other with minimal variations,” according to the study. Consequently, vulnerabilities present in one brand of ELD may be present in many others as well.
Another point of concern is the lack of regulation regarding ELD cybersecurity. Devices must meet technical specifications before registering with the Federal Motor Carrier Safety Administration, but manufacturers need only to self-certify.
The National Motor Freight Traffic Association has issued a list of recommended security requirements for ELDs. However, those recommendations appear to be largely ignored.
“I can say very confidently that if that guidance had been followed from the industry, then we wouldn’t have been able to demonstrate these exploits that Rik and Jake developed,” Daily told Land Line Now.
The researchers reached out to the ELD manufacturer before publishing the research. Daily said the manufacturer worked with him and his team to develop a firmware patch addressing the vulnerabilities.
What can truckers do to secure their truck?
There are measures truckers and fleet owners can take to mitigate any cybersecurity vulnerabilities.
First and foremost, truckers need to keep their ELDs updated. Like smartphones, ELDs may require periodic security updates that could include patches for newly discovered vulnerabilities. And if truckers have access to the device’s Wi-Fi password, they should change it to a stronger one.
Daily also believes in the power of the free market. If those in the industry – especially large fleets that buy in bulk – purchase only highly secured ELDs, it will force makers of less-secure ELDs to sink or swim.
The good news is that the industry has responded well to cybersecurity concerns in recent years. The truck used in this experiment was a 2014 Kenworth, a 10-year-old truck. In the past decade, truck manufacturers have improved security measures within their systems.
Click on links below to see videos on ELD vulnerabilities.
https://youtu.be/SEON7PMZwDM
https://youtu.be/IhsHIYh_haI
https://youtu.be/VV-EsrAsVRg
Allysa A. Adams
The moment an accident occurs is not the time to put your company’s accident response plan into place.
Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit.
Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach allows you to collect evidence from the scene, perform surveillance, gather statements, or examine social media evidence to use in your favor at trial. Keep in mind these top 5 tips when preparing to respond to an accident:
Act fast and be prepared. When an accident occurs, the faster you act, the better you can respond. To effectively do this, you must start well before an accident occurs. The best place to start is by training your dispatchers on how to respond when an accident call comes in and let them know what they should be asking the driver, what information to obtain, and what additional individuals – including attorneys or field adjusters – to contact to help with the response.
Do not take statements from your driver. Do not have your driver make any written or recorded statements regarding the accident. This will have to be produced to opposing counsel if there is any future litigation. These statements will be used against your driver if any inconsistencies pop up later. Also, advise your driver not to give any statements to anyone or talk to anyone else about the accident. One thing you can do to completely protect your driver’s version of events is to immediately have an attorney speak to the driver. Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.
Bring in outside help. You will want to hire an independent adjuster to help investigate the accident. I recommend in all accidents, both big and small, you hire an independent adjuster to call the other driver and witnesses to obtain their statement. If liability is not in your favor, you can take proactive steps to avoid a future lawsuit, like paying for the damages to their vehicle or resolving any claims for bodily injury before they engage an attorney. Payment to a claimant up front can save future attorney’s fees and any future judgment. It is also good to have both sides of the story so you can get a full view of the accident.
Depending on the situation, you can also hire an independent adjuster for further investigation. If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident. I always ask drivers if they know if there was a camera in the area and if they had a dash camera. These videos can turn a disputed liability case into one that you can argue completely in your favor. Also depending on the accident, especially in serious accidents, you may want to hire an independent adjuster to go out to the scene and take photographs. Also depending on the situation, especially in serious cases, you may want to hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site to determine how the accident happened.
Social media. When you find out about a more severe accident, you or your attorney’s office should look for information concerning the accident. You can find out a lot of information about an accident just by checking on Facebook and other social media. Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
Another important thing to do in these cases is to have your attorney or independent adjuster run a public record search and a social media search for the claimant. Make sure to keep checking on social media to see if they mention their injuries. Usually, once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately if you think there could be future litigation. Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.
Preservation of evidence. You should make sure to preserve any evidence from the accident. This would include pulling the driver’s logs for the week before the accident. If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation. If not saved, you can be accused of spoliation and may have sanctions issued by the court. If a preservation letter is received, have counsel send your preservation letter to have the claimant preserve any evidence they have regarding the accident.
This is not an exhaustive list and assumes accident response measures are planned before the accident. Please contact me for questions your trucking company has on accident response or for free accident response packets, forms, and checklists.
Mark Murrell
When one of your trucks is involved in a crash event, it’s a stressful situation. There’s a lot to manage between helping your driver and working with the other parties involved.
The first thing that sets people on edge is the number of players involved. The police? Sure. But that’s just the start. Remember it can also include governmental departments for the environment, plus insurance stakeholders, lawyers, paralegals, the media, bystanders, residents and more. Yikes.
Now consider two things: your driver will have to deal with any number of these folks right in the middle of having one of the worst days of his or her career (and probably while being in shock); and the next thing these stakeholders are going to do is call you. Will you know what to say and what resources to mobilize? I caught up with John Farquhar from Summit Risk Solutions and Rick Morgan of Links Consulting to discuss this issue and what fleets should be doing when a driver is involved in a collision.
Take care of your drivers
When one of your drivers is involved in a crash — after checking to see if they’re physically and mentally alright of course – give them support. Lots of it. They’re going to need it and you must help them understand their rights and responsibilities.
- The police are going to talk to them, and your driver needs to know their rights (including what they should and should not be saying)
- Their cellphone may be confiscated right away as evidence—the vast amount of information that can be gotten from the forensic data analysis of a phone has made cellphone confiscation an almost standard practice
- Were they carrying hazmat? First responders will be asking them for details in order to manage the situation
- Your driver will probably want to contact their family (which will be difficult when their phone has been taken)
From policy to plan
When the police, government officials and insurance partners call you, your team will need to be ready. And the press? If it’s a big event, they’re going to write a story about you, whether you speak to them or not. Know what you want to say to them when they call so you at least have some input in how you are portrayed in the media. If the accident is especially severe, with loss of life, or significant property damage, consider hiring a PR person for counsel.
All of this requires more than just having a broad-strokes policy; it requires serious thinking about who will play what role on your team, what their responsibilities will be and how you want to control the situation. It requires a plan. When building a crash response plan, here are five elements to consider:
- Have a “serious event” team at your company More than a vague acknowledgment that managing the crisis should be the responsibility of ‘management,’ have a dedicated set of people with specific responsibilities. For example, driver outreach—there should be one person who will be the driver’s first point of contact when they need help, and this person should be responsible for checking on the driver’s welfare, notifying loved ones, and generally walking them through the process. Don’t bounce the driver around by telling them to call this person for one issue and that person for another. They’ve been through enough, so make it easy for them. Another team member should be responsible for contacting insurance and legal stakeholders, and have a point person for dealing with the media. Smaller fleets may only have one or two leaders in the company available for these roles, but it’s still critical that there is a clear understanding of who is doing what.
- Don’t leave your driver to figure it out themselves Given the enormous stress they will be under; even well-prepared drivers will have a tough time remembering everything they need to do if they are in a crash (and that is assuming they aren’t injured). So, make sure they have simple, easy-to-follow protocols and just one number to call to get through to the serious event team at your company. What’s more, know how you will get a replacement phone to your driver if (or when) theirs is confiscated for evidence.
- Know what to say and what will be said Journalists will do whatever they can to find out about the situation and the people involved—and they will construct a story out of whatever they find. You can decide whether you want to give them information or not, but just know that they will write one either way. Make sure you know ahead of time what you want said, who is going to say it, and how (phone interview, email, etc.). Have that information scripted and available so the message you want to send is consistent. This also goes for passing information on to the rest of the company. Rather than letting rumors fly, make sure you are the one controlling the information flow to your team.
- Practice Table talk your plan as if you were actually in the situation and you just got the call from a driver. Have the team leader clarify roles, troubleshoot communication and generally get people used to stepping into these roles when needed. Even better, run a drill. Have a driver work with you to put in a call as if they have had a crash event, but lead the rest of your crash team to believe that it is a real event. Afterwards, you’ll be able to talk them through what went well and what didn’t and give them a taste of the kind of stress they will be under when it happens.
- Use your insurance partners If you’re stuck on figuring out what else your plan should have, reach out to your insurer for guidance. Not only do they have experience, but they’ll also be invested in making sure your plan is comprehensive (and they’ll be thankful you’re doing it in the first place).
Remember that a serious event for a fleet is a ‘when’ rather than an ‘if’; getting prepared for it to keep your people and company in control is a must do.
Michael Phelan
Trucking industry insiders are charging that some ELD vendors are manipulating weaknesses in the Federal Motor Carrier Safety Administration’s technical requirements to allow trucking companies and drivers to use “ghost co-drivers” to avoid hours-of-service (HOS) rules. Recently, a driver utilizing ELD Rider software recorded a ghost co-driver being added to his device 15-20 minutes after the driver requested more hours from the company.
The history of ghost-driver accounts
Before ELDs became mandatory, it was common for automatic onboard recording device (AOBRD) systems to use ghost-driver (or generic or dummy) accounts to prevent unassigned driving time from accumulating in the system by providing “buckets” into which this driving time could be recorded. Some common ghost accounts included:
- Maintenance — used for maintenance movements by mechanics not required to log.
- Road test— used when a driver who had not been hired or entered into the logging system is road tested.
- Yard shuttles— used by non-drivers not required to log when a road truck was used to switch trailers in the yard.
When a driver used one of these accounts, they would usually either log in under the ghost account and use it while driving or fail to log in, instead allowing someone else to later assign the unassigned driving to the correct ghost driver account. Although AOBRD rules at §395.15 do not prohibit ghost accounts, they were to be used appropriately and monitored by the carrier.
However, some drivers or supervisors used ghost driver accounts to hide driving and on-duty time, and truckers were often tempted to log in to the ghost driver account when they were short on available hours.
Fleets utilizing automatic onboard recording device systems (AOBRDS) were required to change to ELDs by December 2019. The ELD rule that took effect December 16, 2019 requires most carriers to utilize electronic devices (ELDs) to track driver hours of service instead of relying on paper logbooks. The ELD regulations clearly state that all accounts must be assigned to an individual and all driver accounts must have a driver’s license number linked to them. This means ghost driver accounts are not permitted in an ELD system. Other requirements of the ELD rule include:
- ELDs must be certified and registered with the Federal Motor Carrier Safety Administration (FMCSA). The rule also sets forth ELD performance and design standards.
- The rule specifies the supporting documents drivers and carriers must keep.
- Harassment of drivers based on ELD data or fleet management systems is illegal, and there is recourse available for drivers who believe they have been harassed.
- Any driving time that comes into the “unidentified driver” account must be either assigned to a specific driver, or a comment must be attached to the driving time explaining why it could not be assigned to a specific driver.
- Fines for ELD violations range from $1,000 to $10,000.
ELD systems provide an option that is meant to remove the need for ghost accounts. Instead, “exempt driver” accounts may be established for exempt drivers – those who are not subject to the hours-of-service or logging regulations. Exempt driver accounts capture the driving time and assign it to the correct driver, but do not generate a regular log. This way, the driver can log in whenever a vehicle is moved, eliminating the need for a ghost driver account or unassigned driving time.
ELD workarounds abound
However, some vendors have created workarounds to entice customers who want to cheat on HOS logs with ghost co-drivers. According to a March 30 Freight Waves report, the FMCSA is stepping up enforcement to crack down on ELD providers that do not comply with federal requirements. The agency has removed five devices from its registry so far in 2023, more than it revoked in the previous four years. Only two revocations were made in 2022.
The FMCSA eliminated All-Ways Track ELD from its self-certification registry at the end of March 2023, and the vendor must make necessary modifications by May 26 before it can recertify the device. In the meantime, the agency is advising All-Ways’ ELD customers to use paper logs while the issues are addressed. FMCSA also revoked two other ELD providers from its registry several months ago, although the companies providing these two devices have now self-certified another HOS-tracking application with FMCSA.
Why do truck drivers tinker with ELD data?
While hard-working truckers should get their well-deserved rest time, some view hours of service compliance as a nuisance. Some truckers view hours of service requirements mostly as one more way for outsiders to control an industry they don’t understand or belong in. Since most drivers’ income stems from miles covered and jobs completed, many view limiting either as a costly imposition on them instead of an improvement in public safety.
Limits on how far trucking companies can push their drivers eat into delivery times and profits. Although most companies grudgingly accept the restrictions some try to find ways around them—or just choose to disobey. Whatever obliges a driver or company to find ways to cheat the system, the result is dangerously-tired drivers operating 80,000-pound trucks. Although this puts everyone on the road at risk, some drivers and companies do what they can to get around ELD restrictions.
Despite federal laws that mandate rest breaks, drowsy truckers are involved in a significant number of traffic accidents every year. However, proving hours of service violations is challenging if the ELD data shows the driver followed the rules, although audits sometimes reveal discrepancies or modifications to the ELD and its data. Proving that an ELD device or its output was tampered with is a critical part of proving fault for a truck accident.
