Nuclear Verdicts: Out of Control or Controlling the Outcome?

Nuclear verdicts are a rising cause for concern in commercial fleets. But what is a nuclear verdict and why are nuclear verdicts increasing – both in quantity and size of jury awards? Where does distracted driving fit in? And what can commercial fleets and defense lawyers do to avoid runaway verdicts?

Joe Fried, Founding Partner of Fried Goldberg LLC, shares his experience as a plaintiff lawyer in cases involving nuclear-size verdicts with commercial fleets. Then learn about technology that automatically enforces your mobile device usage policy and prevents distracted driving – reducing exposure to potential nuclear verdicts.

During this webinar, you will learn:

• What jurors react to that lead to nuclear verdicts – from driver actions to defense tactics.
• Reasons why plaintiff’s lawyers have an advantage over defense lawyers.
• Why cell phone policies don’t work without a level of enforcement.
• What commercial fleets can do to prevent nuclear verdicts.

Webinar Transcript

With additional guests David Coleman, strategic account executive at TRUCE Software and Joe McKillips, former executive director at NETS.

Special guest introduction

[00:02:28] Joe Fried: Thank you…I see some attendees who I know, and I appreciate you being here. Many of you, I don’t know. My background is an attorney. I handle cases where I represent the plaintiff against whatever entity may be responsible for a driver who I’m claiming is responsible for the crash.

[00:02:52]  Some of you might say you’re the opposition. As a starting off point, I like to say that we may end up being adversaries when it comes to a particular case, but we should never be adversaries when it comes to safety. That’s why I spend close to half of my time participating in webinars and events like this one. I’ve spoken to people on the industry side a lot in an effort to show you my heart and show you, if I can somehow help get to a point where I’ve worked myself out of a job, that would be great.

[00:03:38] Some of you on this call are going to be skeptical about some of the things I say. Others of you will be nodding your head up and down. Some of you may be in situations where you’re trying to get other folks within your organization to join you in what you believe to be improving your safety culture or your safety processes at work.

[00:04:04] I want to encourage you in that regard. My job here isn’t to do a “scared straight” program, but I’m going to speak to you from my heart and from my experience. I’ll answer whatever questions honestly, and I’m going to bring transparency in hopes that we can all better from it.

[00:04:32] That’s a long introduction to let you know who I am. I work all over the country. I’m responsible for cases that are north of a billion dollars. A lot of my cases are against commercial motor vehicle entities. Some of you are in that space, and many of you are running commercial fleets of vehicles that don’t require CDL licenses or may not be subject to the federal motor carrier safety regulations.

[00:04:59] My comments today go to all types of these organizations. You may see a slide or two in here more directed towards trucking. With that, let’s move forward. The question that was posed to me is why? What are these things called nuclear verdicts?

Nuclear Verdict Definition

[00:05:38] Joe Fried: …First let’s define what we’re talking about: What is a nuclear verdict? For a lot of people, it’s just any verdict that is large. I’ve seen some articles that say any case that is north of $10 million or $5 million is a nuclear verdict. You can choose how you define it for yourself, but … we’re not really talking about cases that are just “big.”

[00:06:07] We’re talking about outperform verdicts. I call them “outperform verdicts” because these are not just big verdicts – they’re verdicts that are seemingly out of proportion to what you believe the damages are in the case. In other words, it sounds like a broken arm case, and it’s a multimillion-dollar verdict. Even though for some people, a couple of million dollars isn’t a nuclear verdict, to me [it is] an outperform verdict.

[00:06:52] So why are they happening? If it is true that a verdict is being given that is out of proportion to what you believe the damages are, then it’s a worthy question to ask, “What is the jury reacting to?” They must be reacting to something that’s more than, different than, in addition to, whatever the basic facts are about the damages.

[00:07:22] If it’s outperformed, they’re either stupid, which I don’t think [is true]. You might want to say that until you realize that everybody on this call probably has gotten a jury summons at some point. A few of us have served. Juries are not stupid in my experience.

[00:07:39] They’re sharp when you have the collective group. I don’t always agree with them, but that doesn’t make them stupid. What are they reacting to? Whatever they’re reacting to, it must be strong, right? For them to return something that we’re going to call a nuclear verdict – it’s huge, much bigger than expected, so it must be something that’s strong.

[00:08:24] It must be something that generates emotion. What are the strongest emotions out there? Things like anger, frustration and fear. Notice I’m talking about emotion. I’m not talking about sympathy. A lot of people think that we have huge verdicts because of sympathy. That’s not really been my experience…

[00:09:07] I’m differentiating “emotional” from sympathy for one side versus the other. I’ve seen cases where people are crying and saying “no verdict,” and I’ve seen cases where people are the opposite. So, I’m asking you to consider what it is.

[00:09:32] It’s something different than, or greater than, the base facts. It’s something that’s strong. It’s something that’s emotional or generates emotions. Those things can be, in my experience, factual…[for example, there] might be a corporation that has a repeated history of systemic violations that may be factually based.

[00:10:02] There’s another too frequently overlooked category. It can also be tactics – meaning how the case is being defended. I’m going to be pointing at a couple of different areas today where those tactics tend to favor the plaintiff and can generate emotion that supports larger verdicts.

[00:10:36] These things that are strong, emotional – I’m calling them the triggers for the larger awards – sometimes I’m reminded of what I grew up with, which was a mom who used to say, “if you’re pointing a finger at somebody else, you’re pointing three fingers back at yourself.”

Reptile Theory and Personal Responsibility

[00:10:59] Don’t forget to look introspectively at how you might be causing whatever it is you’re pointing at on the other side. Why do I bring that up? Because the very first thing I hear as an attorney, when I hear about nuclear verdicts… is reference to the reptile theory. Reptile theory has been spun up into this idea that it’s some mind game being used to trick jurors into giving larger awards. You can make your own decision about that, and nothing I could say (especially now that I’m a plaintiff’s lawyer) is going to change your feelings about that because something must be unfair in your worldview.

[00:12:00] Not mine. I do agree that something may be wrong, but we may have differences of opinion. What I’m asking you to do—and if you do it, I think you’ll be better off doing it—is to spend some time focused on what your organization, and the people that support you and your organization in these crash cases, are doing, as opposed to just externalizing it and saying, “It’s those jurors. It’s those judges. It’s those venues. It’s that darned reptile…” (It’s whatever else you want to call it and pointing externally.) To be frank, the idea of reptile, although it wasn’t called this, it’s been around for an awfully long time. If you look at it originally, it was a concept that was used and taught by the defense.

[00:12:54] It was taught in a way that said turn every case into a case where the plaintiff, the injured party, was not exercising personal responsibility. You might remember when you heard these words everywhere: “personal responsibility.” You couldn’t turn on the news and not see it.

[00:13:18] It was espoused by both Republican pundits, Democrat pundits and every other kind of pundit out there. Those were the buzzwords, and defense lawyers did a great job of taking…cases that I thought were righteous and legitimate cases, and sometimes being able to convince jurors, not to award an award based on some perceived or actual lack of personal responsibility on behalf of the plaintiff. That was when the defense was using reptile.

[00:13:55] While lawyers are going to be lawyers, and we’re going to look for ways to get better and bigger verdicts, or smaller and no verdicts if you’re on the defense side, these concepts are not new. I don’t think they can be what is driving the boat here.

Accountability in Jury Trials

[00:14:14] What are some things that generate emotions, like anger, frustration, and fear? (And also keep in mind the idea of the human animal being a pretty self-serving animal – that includes people who end up as jurors.) So how does this work? When you have something like a bad faith failure to admit fault, that’s infuriating.

[00:14:44] We see it all the time. We see that rear end crash case where some fleet vehicle runs into the back of a person on the roadway. There’s an immediate effort to try to deny responsibility for a long period of time – even after an investigation shows that the plaintiff didn’t do anything wrong, and that there’s no other people who did anything wrong, and there’s no other circumstances.

[00:15:15] …You still have situations where the defense, for reasons that we’re going to talk about in a few minutes, refuses to admit responsibility. Now, people are pissed about that. That’s a technical legal term: put yourself on a jury for a second. Even you with your background in fleet, on the commercial side, on the defense side of these situations, aren’t you going to be pretty pissed if you were pulled out of your life, away from your family, your business, your job, your vacation, away from things that are important to you, to be forced into a box, your phone – everything taken away from you?

[00:15:54] You hear about a rear end wreck case that the defense is denying responsibility in. Aren’t you going to start to be pissed? In a situation like that, can you now imagine, if you’re mad, what kind of verdict are you likely to give? In what way are you going to look at the damages in the case?

[00:16:19] Are you going to look at the damages and add an anger factor to it? Just like, if it was the other way around, you might say, “I really like that guy on the other side. I’m not mad at them at all.” If you think about the range of what might be a jury verdict, are you likely – if you’re pissed about a failure to admit responsibility – to go high, or are you likely to go low?

[00:16:48] Anything that the defense does that the jury perceives are unfair practices might piss a jury off to award a large verdict. Why? Because the jurors see themselves and their loved ones in that same potential predicament. I don’t think it’s because they care that much about the plaintiff.

[00:17:15] …They look at it and say, that person or company is willing to put that plaintiff through that – after they hit them in the rear and denied responsibility – then they call them a liar. They put video cameras up in places that they shouldn’t to try to catch them doing things, [yet] they have no reason to think that they’re lying. It’s one thing if they have a good reason to think those things, but if it’s a straightforward case, and the defense tries to destroy a good person over a few dollars, that’s going to piss jurors off in today’s day and age.

[00:17:58] The way a jury says, “I’m pissed” is with a big verdict. They write a big number on the page. Corporations where you have a systemic failure on the part of the corporation—this [applies] to a lot of what may be talked about later with distracted driving and practices, principles and technology that’s available now to deal with that.

[00:18:25] Corporations that have a problem that repeats itself, and at the same time the corporation does not appear to be doing anything reasonable to address the situation – bad problems over a period of time with no remediation, no extra training, mistreating people along the way: These are recipes for a bad verdict situation.

[00:18:54] Corporations that fail to take safety precautions when that history exists is almost universally present in huge verdicts. Oftentimes you’ll see the question asked literally at trial: “Even now, as you sit before these ladies and gentlemen of the jury, what has your company done to try to address this so it doesn’t happen in the future? Answer: Nothing.” That gives me the ability at the end to look at those jurors and say, “Folks, obviously nothing has been strong enough. No judge, no lawyer, not even a bad reputation that caused injuries or fatalities or a series of them have been strong enough to make this corporation change.”

[00:19:49] That’s why we’re here. You have the power to do that through your verdict. Now what’s a jury going to do? How are they going to do it? Is it that surprising that [a judgment] comes out that you might feel is a nuclear verdict? There’s usually a reason for this. It’s not that the jury just got somehow tricked. In those failure-to-admit-fault situations, I always challenge people, and I’d like to challenge everybody on this webinar: show me a nuclear verdict that starts with an admission of fault. 

[00:20:39] …Why is there a reluctance on the part of the defense to admit fault, even in cases where fault should be admitted? That’s an old way of thinking. It’s under the Bart Simpson defense, which is “nobody saw me do it.” No one could prove anything. It’s a situation where the old school thought was let’s make them prove it. Let’s not give an inch. That’s just old school defense that comes from old school lawyering. People trying cases like they were trying cases 10, 15, 20 years ago, are trying cases to a very different kind of audience these days. Even jurors who are old enough to have been on juries 15, 20, 30 years ago – those people are getting information differently.

The Nature of Relationships between the Insurance Industry, Defense Counsel, and Commercial Fleets

[00:21:45] The system itself is set up in a way that to some degree discourages the admission of fault. The system that I’m talking about is the system having to do with the way insurance and lawyers on the defense side interact.

[00:22:11] This whole system where a lawyer has a client who may be insured, but also has an insurer who is paying the bills, you’ve got this set up: [If] a defense lawyer quickly looks at a case and says, “Look we ought to admit fault in this case,” that lawyer is oftentimes looked at as weak, ineffective or not willing to fight hard, and is sometimes replaced.

[00:22:41] I’ve had cases where those lawyers are replaced. I promise you, without exception, at least in my experience, that company ended up paying more money at the end than had they [admitted fault] in the first place. If you accept responsibility for something, that issue is no longer an issue.

[00:23:03] So what’s the issue now before the jurors? Now the issue is damages. It’s the difference between trying to determine who did right and who did wrong versus trying to have a fight over money… If the jury’s not upset about something else, then I’m the one—if I’m asking for a lot of money—that looks like a greedy lawyer. Which fight do you want to have? The way the system is set up, the lawyer on the defense side didn’t admit responsibility because even if they wanted to, sometimes the insured or the insurer wouldn’t let them.

[00:23:58] Or [the insured or the insurer] reacted poorly to that suggestion. Or the lawyer just didn’t ask because they didn’t want to be perceived as weak in a very competitive market. At the beginning of my career (I’ve been doing this for almost 30 years), there was tremendous loyalty and longstanding relationships between insurance defense firms and their insurers, and oftentimes between lawyers and and their fleet type clients; lots of trust would be built up over time. There wasn’t as much jumping around as there is now.

[00:24:44] Now, it’s crazy. You see the pilfering that happens from law firm to law firm, trying to get somebody else’s clients, and it’s off the chain. It’s a dog-eat-dog world, and that world does not encourage defense lawyers – even though it’s the right thing to do – to admit fault, even in cases where it absolutely should.

Collaborative Versus Competitive Attitudes in the Legal Community

[00:25:05] Another big reason or difference between the sides is…on the plaintiff’s side we share, collaborate, and teach each other best practices. I’ve done almost 800 presentations in my career, the vast majority of which have been to other plaintiff’s lawyers to teach them how to be better at developing their cases, taking depositions and trying cases.

[00:25:52] …The idea on our side is to share: “a rising tide rises all boats.” We share specifics on specific insurers, on specific experts, on specific lawyers, on specific judges, on specific venues, on specific motor carriers, on specific telematics systems, on particular software programs.

[00:26:22] We share positive results. We share negative results, but it used to be once upon a time, if I was handling a case in Georgia and another case in Nebraska against the same defendant, those two lawyers, even though they were representing the same defendant, had no idea that the other litigation was going on.

[00:26:52] Imagine how hard it was for those lawyers to collaborate. Yet in my world, I belong to listserves. I belong to communities of lawyers where if something good happens for me against one of your companies, the rest of the plaintiff’s bar knows about that before you get home, before you have dinner that night. By contrast, the defense doesn’t share anything.

[00:27:16] They’re very insulated. They’re very insular in their thinking, and they do it because they feel a need to be protectionistic. They feel that if they share, they’re sharing their secret sauce; they’re going to make it easier for another lawyer to come in and take the business away.

[00:27:38] That may be true, but I’m pointing out, it’s a huge difference. I’m part of the plaintiff’s bar these days. I’m part of what feels like an extremely collaborative organization of lawyers. We go out of our way for each other. We’ll get up on a weekend, go to the office and pull depositions for somebody we don’t even know just to help them get a better result in a case.

How to Avoid a Nuclear Verdict

[00:28:03] Joe Fried: I’m going to spend my last couple of minutes answering this question: What can commercial fleets do to address nuclear verdicts? …The first is careful selection and qualification of drivers. That should go without saying, but it’s got to be a documented process, a documented standard that you have for yourself, and then keep your standard. If you’re going to make an exception, which I’m not saying you shouldn’t ever do, but document that it’s an exception and the reasons for the exception.

[00:28:52] When you make an exception, ask yourself, we’re making this exception—shouldn’t we be doing something in addition to what’s normal for us because we’ve made an exception? Why am I saying this? Everything that I’m getting ready to say is so that you can avoid somebody like me coming in later and saying, “look how terrible this company is.”

[00:29:15] “They violated their policy; they violated their procedure. They’ve got these issues.” It’s the court of public opinion that matters to a significant degree. I want you to be as safe as possible, and you may not believe this, but I want to avoid crashes as much as possible. That’s why I’m here. I have no other reason—not one of you is going to hire me for anything. I’ve got no reason to tell you anything other than what I believe to be the gospel truth…

Documentation, Training and Procedures Matter

[00:29:51] Make your program bullet proof regarding hiring and qualification. If you have driver qualification issues, make sure you have a system, and make sure you follow it; make sure you document exceptions. Be careful with your record keeping because courts all over the country will, in the right circumstances, create an inference against you if you don’t have things properly documented. The old adage, “if it’s not written down,” remains true because people these days expect things to be documented. It’s a hard sell for a lawyer on the other side of me to say, “They did it. They just didn’t write it down.”

[00:30:35] …It typically doesn’t go well for people because if you’re not writing it down, what else is a problem? That’s where jurors’ minds go. Have an appropriate driver training program that you’re hiring reasonably trained people for. Even if you hire reasonably trained people, you still put them through some type of initial screening to make sure they’re safe drivers.

You need some type of a continuing program so that you can get up and look at the court of public opinion and say, “We’re not just giving lip service to safety. We have a defensive driving program. We put our drivers through that annually or bi-annually. In the meantime, we have quarterly safety meetings where we discuss time appropriate safety things—like in the winter, we talk about winter driving, in the summer we talk about X, Y and Z. We know that we drive through school zones, so we have special safety meetings about how to deal with school zones or work zones or …” and document what you’re talking about. Document your policies and procedures, and make sure your people actually get trained on them.

[00:31:56] It’s easy for me to poke holes. If you’ve got no policies and procedures, you’re in trouble. If you have written policies and procedures and you don’t follow them, you’re going to look terrible. The rule is get yourself a good set of policies and procedures.

[00:32:15] If you don’t have one, now they’re readily available and don’t have to cost a fortune to get, or you can develop your own. Then train your people on them, and make sure they understand that this is how you define reasonably safe conduct. Then you have to enforce your policies and procedures, even when it’s uncomfortable to do it.

Use Technology to Enforce Policies and Improve

[00:32:35]…Distracted driving, cell phone use and fatigue are areas that we see in many cases. Today there’s technology available to every one of your fleets, whether you’re huge or small, that allow you to almost ride shotgun with your driver. To get exception reports when your driver is doing things that fall outside of acceptable parameters, it doesn’t cost much money.

[00:33:20] Imagine what I’m going to do: If you give me the opportunity to get in front of the court of public opinion and say, “This company knew this [technology] was available. This company looked at it. It’s not very expensive, and yet they chose not to do it. Why would you choose not to do it?” Some of you are saying, “I choose not to do it because of people like you, Joe, who will use it against me.”

[00:33:41] What if I tell you data is only going to be used against you if you have bad stuff that you’re not addressing? If you have bad stuff that you’re not addressing, then with every bad driver interaction, you have the ability to use that to show, “Look at how we are – we reacted to that, we disciplined, we trained.” It’s an opportunity. I highly encourage people to utilize modern safety technology: automatic emergency braking, telematic systems and TRUCE. I put a few other points on here, some of which are really more directed to large commercial fleets of commercial motor vehicles, that no U-turn policy for instance. I would say be decent to your drivers.

[00:34:35] If you mistreat them, they’ll mistreat you. I’ve talked about policy and procedures. You should have a very specific distracted driving cell phone use policy, and you better enforce it. In today’s day and age, there’s an inordinate number of large verdicts, and there’s an inordinate number of large injury cases and fatal cases that involve distracted driving mostly from cell phones or other electronic devices.

[00:35:04] Have strong policies that you enforce [regarding cell phones], and have strong policies and training when it comes to bad weather driving situations, because we see those cases all the time. There’s some other slides on here that I don’t have time to go over, but it’s some of the things that insurers can do having to do with underwriting and their reliance and appropriate interactions with their defense lawyers. I think this deck will be available for you to review. If you have questions about what I meant, I’m happy to answer them now or later, or you can email me…

How to Engineer Out Distracted Driving

[00:36:30] David Coleman:… Hey, I’m David Coleman. I’m an account executive with TRUCE Software. One of the big challenges we have with phone and mobile technology is legacy thinking that administrative controls are going to solve this problem. From our perspective, after protecting employees for about 10 years now, we’re seeing one phone distraction, generally incoming for every 10 miles of driving. For the average employee, they have to get it right 2,000 times a year. That’s a problem for employers when we know that we have that many transactions created by this technology that employees have to deal with, yet we’re not doing anything to engineer out the problem, right? We can collect the phone records.

[00:37:43] We can collect potentially even the applications that they’re using, but we need to engineer out the problem. To Joe’s point, technology exists – like TRUCE Software – that organizations can leverage to protect employees and start to avoid these nuclear verdicts.

[00:38:12] TRUCE is agnostic. Whether it’s an iOS or Android tablet or phone, TRUCE takes your corporate policy and applies it automatically to a device. In the context of driving, when somebody starts to drive – if they’re not allowed to interact audibly or visually with the device – they won’t be able to. If you allow employees to have access to navigation or other applications (ELD apps for the DOT regulated), we can autorically enforce your policy. 

[00:38:56] This is a relief to an employee who no longer has to manage those 2,000 interactions that are incoming to their device while they’re driving. They just simply drive; the device is protected. They’re protected against that potential disruption. 

How and Where TRUCE Works

[00:39:15] From a platform standpoint, it’s software…with the ability to determine context. For us in the webinar, context is talking about moving vehicles, but context could mean vibrating equipment or proximate location around a big piece of equipment. It could actually be a location – a construction site. We’re agnostic to where the platform is applied. But since we’re talking about distracted driving, software can go on a device that you want policy enforced on automatically, and in the context of driving/moving vehicles, the policy gets enforced.

[00:40:22] …The visual way to think about this is that I have a phone in my hands, and I’ve got page after page of various applications. TRUCE takes that complexity out of the equation for an employee. We can remove the experience of trying to flip through. If they’re allowed to have navigation, we’re simply going to create an elegant user experience for them. If I’m driving, I only need to see maps. Maybe I’m allowed access to podcasts; maybe I’m allowed access to music. Again your policy is automatically applied. From an end user perspective, this is a relief.

[00:40:51] If I’m in the context of driving, only the applications or interactions that are consistent with driving are presented. If I’m operating the forklift, same concept. If I’m on a construction site—no more flipping through, page after page. It’s application software, it’s situational context, and it’s an automatic, elegant experience for the employee.

[00:41:13] Over the last 10 years, TRUCE has served in utilities, pest control, pharmaceutical, environmental services, etc. We support large organizations that are already best in class in terms of traditional road safety approaches. Most, if not all, have telematics and cameras… But video clip after video clip, even with AI, and too much phone use, they couldn’t fire people.

Strong Customer Results with TRUCE

[00:41:46] We can’t manage thousands of phone interactions that people have while driving. Let’s engineer out the solution. With TRUCE, we see at-fault crashes go down and rear end collisions go down. When employees drive for your organization, they have to manage on a transaction by transaction basis, incoming text applications, email, etc…The device is interacting with them while they’re driving. It’s a stressor. They have to manage that.  

[00:42:30] They know what your policy is, but we have a societal addiction and dependency on these devices, and now we’re entrusting them with the vehicle. We’re requiring that drivers have access to technology that’s putting them at risk. It’s no wonder the employee using TRUCE is like, “This is great. I can now just focus on my job. I don’t need to worry about whether that’s an important message or an email.” It’s appropriately enabled or suppressed based on your policy. We’re seeing very positive feedback from the employees who value the companies that invest in their safety.

Q&A Panel

What if a carrier has adopted a FMCSA cell phone policy? Is that not good enough?

[00:43:40]  Joe Fried: The short answer is it’s not good enough… There’s lots of evidence about hands-free versus handheld. Look at the National Safety Council’s long standing study about the dangers associated with hands-free.

[00:44:08] …I get that question more broadly: if we meet federal guidelines, isn’t that enough? That’s going to be your lawyers’ mantra, and just imagine how that plays to a jury. Is a jury going to think that’s enough when I’m going to be able to show all kinds of data that shows that using a handheld device is pretty darn close to as dangerous as using a hands-free device?

[00:44:49] I don’t think this is an easy call for fleets that are non-commercial. But for commercial fleets, it’s one of the things that you have to deal with. I personally don’t think it’s enough because of the safety aspect of it, and I don’t think it’s enough when it comes to if you’re in a situation where you’re trying to defend your conduct.

[00:45:18] David Coleman: [When we’ve worked with companies and compared hands free to handheld use], we see about 50% of the phone interaction that people have while driving is still handheld, even when policy says hands free. People don’t necessarily adopt the hands free, which is one of the things TRUCE enforces. To Joe’s point, it’s not always an easy decision because operationally you may need to have hands free, but at least you can enforce that it actually is hands free and not 50% hand to the ear.

[00:46:01] Joe Fried: I agree with that. If you do make the decision to say, “We’re going to adopt that, and that’s what we’re going to use.” Then you better be taking some steps to prove it.

[00:46:18] David Coleman: Some of this is legacy thinking, right? We as an industry have thought that the paper policy translates into what humans actually do. That’s the gap that we’re in. Most folks on this call all have a very strong paper policy and handbooks to drive driver acknowledgement. But there’s no engineering control to enforce it. That’s the gap. Now that an engineering control is in place, that enforcement needs to occur.

Why would I use TRUCE over something like dash cams and dash cam telematics?

[00:47:05] David Coleman: …I highly value cameras and telematics. They’re excellent systems, as is the advanced driver-assistance system (ADAS)… The challenge that phones and tablets have introduced to that legacy technology (cameras or telematics) is that they are largely collecting data that somebody has to administer.

[00:47:43] Cameras have some innovations using AI to warn somebody, but the phone has changed everything. There are too many administrative transactions created by telematics and video, which TRUCE can engineer out. When policy enforcement is automatic [such as with TRUCE], you no longer have moderate-severe breaking associated with inappropriate phone use.

[00:48:09] When TRUCE is on an employee’s phone, you engineer out the issue of the phone, so there is no video of somebody inappropriately using the phone anymore…We can engineer out the 2,000 phone transactions that the average employee driver sees on a yearly basis. The short answer is that TRUCE is an engineering innovation – an engineering control on the hierarchy of safety controls.

For employers who do not provide company phones, how do you suggest we overcome resistance to adding telematics or policy enforcement tech on employees’ personal devices or personal phones?

[00:49:12] David Coleman: It’s more about applications than hardware. Often employees need to use applications to transact business – they have corporate email, they have corporate workforce automation, they’re getting reimbursed for phone usage, or their device is used for business purposes…It’s the interacting with the device that causes the rear end collision…We have customers that use 100% personal devices, but I’d ask, is there corporate interaction occurring? If I’m using my device to transact business, talk with coworkers, talk with customers, have corporate application context on those devices, that’s the problem. It’s the applications and the interaction, not the ownership. 

[00:50:35] Joe Fried: I would go at it a little bit differently. If somebody is within the course and scope of their employment, then you as the employer are responsible for their conduct while they’re driving. Because of that, I’m sure that they’re getting some type of reimbursement. It may not be for their phone, but it would be for their car or whatever else.

At the very least, you have to have strong policies and procedures. [It is suspect when] you get resistance from somebody when it comes to having software on their phone…People are skeptical about things, but I’m a former police officer. I policed before body cams were a thing. Friends of mine at various points have said, “Man I would hate to have a body cam.” My answer is why? If you’re the kind of officer who’s going to do the right thing, if your intent is to do right, then don’t you want to be able to defend yourself when something bad goes down? 

[00:51:36] I hate to say it, but somebody who is part of somebody’s fleet on this call is likely to get into a crash in the next year. Unfortunately, somebody’s going to get hurt. If you’re that driver and the company, don’t you want to be able to document and show that you did the right thing?

It involves to some degree a shift or an effort to start to shift people’s thinking to “This is to defend you. Fleet, I’m doing this to defend you. I believe that you are a good, solid and straightforward driver who does the right thing and drives safely. And I want to be able to prove that and help you in the event that some jerk pulls up in front of you. Some other person causes a crash and you’re accused of it. I want to be able to defend you.” Having some discussions about that is a big part of shifting the mindset…You can incentivize people.

[00:52:54] You can have incentive programs, bonus programs etc., that they’ll voluntarily agree to participate in…there are ways to approach it. I understand that things are not perfect. The world and the court of public opinion do not expect perfection. What they expect is a strong showing of effort on your part as a fleet for safety to be something that’s more than just lip service.

[00:53:33] David Coleman: To Joe’s point, from a technology standpoint, if an employee is doing what they’re supposed to do, they won’t know that TRUCE is on the phone. It’s only going to be the employee that is trying to do things that, based on your policy, they’re not supposed to do. But I get it: there’s a cultural change that needs to occur. What we’re talking about here is a marathon, not a sprint.

[00:54:02] We have a generation of people coming into our workforce that are preconditioned to interact with their technology first and drive second. This tidal wave is coming, and we better start addressing it now, or the genie is going to be tough to put back in the bottle.

[00:54:24] Joe Fried: I agree. You’re not suggesting that people put this on their people’s phones surreptitiously. People would have to consent to have this on their personal telephone. Your point is well taken if you’re making the same point I’m making.

You were talking about sharing information: Is that information shared amongst plaintiff attorneys regardless of confidentiality agreements?

[00:55:00] Joe Fried: We follow confidentiality. I’ve not knowingly ever violated confidentiality, but we teach each other that confidentiality should be fought. I don’t want to get into a legal discussion, but there are very few things that are legitimately subject to protection. (Things that are truly trade secrets.) Your accident register is not, and your corporate policies and procedures with respect to safety are not things that the courts today are going to protect as trade secrets. I understand why protections are desired, and we follow those protections when they’re in place, but we fight protective orders.

Is there anything that you wanted to say from a NETS standpoint (i.e., benchmarking, distracted driving), to wrap us up today?

[00:56:33] Joe McKillips: At NETS, we’ve promoted and advocated for aggressive cell phone policies for many years. As it was mentioned here, getting to a full ban—a hands-free and a handheld ban—is really the gold standard. When you’re dealing with a jury, you would like to be in a position where you can say you have a gold standard.

[00:57:13] I know it’s a challenge to get to that point. This is a story I heard from a pretty large employer a few years back when we were debating cell phone bans and policies in their company. This company didn’t have a lot in place yet, but they knew they needed to do something.

[00:57:36] They rounded up their senior leadership team into a meeting. They talked about all the different evidence – a lot of documentation and research about hands-free and handheld. They wrapped all this information into a presentation and put it into the hands of the leadership team and said, “Listen, if we get a call tomorrow that we have a fatality where we had caused a fatality of another innocent party, let’s say, or a serious injury, and it was found that it was because we were on a cell phone. The question is, would we ever change our policy as a result of that?” They role-played a couple scenarios and looked around the room; they had everybody vote, and they said if the answer is yes, we would change our policy.

[00:58:25] After that burning flat platform takes place, then the answer was easy. Within the next couple weeks, they mobilized and made a full ban policy for their company. They got really proactive, and their leadership communicated to the employees about how this was for their benefit – that their safety was more important than anything else in that company.

[00:58:49] It was received and was a win-win for everybody, but everybody at that leadership level was involved. I’ll leave that as a final point here: Get your leadership involved in these decisions. Make sure they know all the pros and cons, and make sure they know the technology that’s available, whether it be TRUCE or other telematics because – I love the way you said it earlier, David – we can engineer our way out of this thing pretty simply with technology.

[00:59:26] Joe Fried: Before we sign off … I just want to remind everybody that the law and the court of public opinion does not require perfection. Safety is a moving target. Why on earth would you not take advantage of technology like TRUCE or like dash cams in today’s day and age? If you really are safety conscious…why would you not welcome the technology? It’s here. It works. Why not? Let’s stop wrecks folks. If I can ever be of help to anybody, I’m on the other side. Make sure you don’t run afoul of any rules about contacting me, but if your agenda is safety, I’m on your side. If I can help you with your people, somehow, I’m an email away. I appreciate being involved.

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