Practical Steps You Can Take to Protect Your Fleet
Once you understand the way a plaintiff’s attorney will argue against your fleet during a trial, you can begin to take steps to bulletproof your fleet against their arguments.
As a disclaimer: it’s important to understand that you can never predict the outcome of a jury trial, so nothing will guarantee immunity from a nuclear verdict. The simple fact of the matter, however, is that in the event of a major crash, whether your driver was at fault or not, some fleets have an 80% chance of suffering a nuclear verdict while others have only a 5% chance. You need to be the fleet with a 5% chance of suffering a nuclear verdict.
Fortunately, there are four practical steps your fleet can take to reduce your liability in the event of a serious crash.
Go the Extra Mile With Compliance
Compliance is meeting the regulatory standards required of every fleet. Since these are definitionally common practices, if you meet basic compliance standards, it’s easy to argue in court that you acted as a reasonable fleet would in that regard.
However, if you want to bulletproof your fleet against claims of negligence, you have to move beyond compliance. There are very few arguments more compelling than the declarative statement “We did more than what was asked of us because we care about safety more than anyone else.”
As an example, under the FMCSA BASICs system, a fleet enters the “intervention threshold” for the crash indicator BASIC when they hit a percentile of 65%. If you set as official policy for your fleet to intervene proactively to keep scores below a percentile of, say, 30%, you can argue in court that you hold yourself to a higher standard of compliance than other fleets. Arguments like these can establish the credibility that your fleet prioritizes safety and holds itself to a higher standard than most.
Review Your Policies and Procedures
One of the first things a plaintiff’s attorney will ask for in discovery is a copy of your safety handbook. These handbooks are often used against fleets with devastating effectiveness. For some fleets, these can be well over 100 pages long, which presents two problems for their defense:
- The more rules there are to follow, the less likely it is that your drivers follow all of them.
- The more rules there are in your handbook, the more inconsistencies there will be between them.
Either one of these shortcomings can be weaponized by a plaintiff’s attorney. If your drivers aren’t following the rules you’ve included in your handbook, then they’ll use that as evidence that your management team hasn’t been able to hold your fleet to its own stated policies. This begins to make the case that your fleet is negligent.
If there are inconsistencies in your handbook, then a plaintiff’s attorney will say that you failed to design a workable system. A system that doesn’t work is almost by definition unreasonable, which can also be portrayed as negligent to a jury. Further, inconsistencies in your handbook can lead to a driver following one of your fleet’s rules, and in doing so, violating another.
While having an extraordinarily long handbook might make you feel as though your fleet is going above and beyond, the truth is that a short, simple, and to-the-point handbook that can be easily followed by those it’s intended for can significantly reduce your liability.
Invest in the Technology That’s Available
Investing in the latest safety technology can not only shield your fleet against claims of negligence but some platforms are designed to reduce crashes in your fleet altogether.
When making technology purchases to prevent nuclear verdicts, there are three things fleets should consider:
Collect Your Data
The biggest misconception a fleet manager can have is that collecting more data than they are required to increases their fleet’s liability. On the contrary, you need data on your driver’s performance, your training efficacy, and your ability to manage both, to begin taking the steps necessary to reduce your liability. Not only will full visibility into your fleet allow you to carry out the steps outlined in this paper, but failing to collect your driver data opens you up to further claims of negligence.
ELDs, cameras, training software, pre-hire solutions, violation tracking, and asset management systems are increasingly in standard use by fleets. Not having one or two of those systems may not be detrimental in court, but having as many as possible can strengthen the case that your fleet cares about safety.
Organize/Consolidate Your Data
Once you’ve established a set of third-party systems to collect data for your fleet, you need to focus on organizing that data so it can be interpreted sensibly and so you don’t have to worry about inconsistencies among your systems emerging.
As discussed previously, inconsistencies in a fleet’s data are often used by plaintiff’s attorneys to make their case. Their goal is to show that you had the data on hand to prove a driver was at-risk, but because you were careless with it, you failed to recognize the signs of risk that were right in front of you.
By investing in technology that organizes or consolidates your disparate data, you can ensure you’re catching the warning signs of a crash and addressing every driver who exhibits them.
Proactively Analyze Your Data
While organizing your data is critical, you also need to analyze your data to make sense of it and take action. Data analysis software—especially those powered by AI and machine learning models—can unlock value for your fleet that Excel-based analysis simply cannot.
Machine learning models, like those used in the Idelic Program, are trained with decades of data surrounding hundreds of thousands of drivers to uncover patterns of crash risk that are hidden in every fleets’ data. While today there is no mandate for fleets to invest in this next-generation technology, doing so now can help prove that your fleet has gone above and beyond with compliance and is taking safety seriously in a way that precludes negligence.
Never Burn Your Bridges
In a trial, your goal is to be the person who everyone can empathize with, and that’s a lot easier if you treat everyone involved with respect and understanding. If you’re facing a nuclear verdict trial, it’s likely a third-party to the incident was seriously harmed by the actions—whether preventable or not—of your driver. It is extremely important that you empathize with this person and take steps to display your empathy.
Though facing a nuclear verdict can cause stress to any fleet, lashing out at the plaintiff is the last thing you want to do. The vast majority of people who take a crash-related incident to trial are not doing so to be vindictive—they are doing so to right a wrong. Juries understand this and will not look favorably upon a fleet who tries to portray themselves as the victim over a plaintiff who suffered genuine physical harm.