Meet My Father-In-Law

If I’ve ever asked anything of you, I ask you to read carefully and bear with me here. It’s gonna all come together by the end and I hope hit you like a ton of bricks. 

Meet my father in law.

He was an incredible man with an infectious laugh. And he was stubborn and bullheaded and often times irrational. Probably why we got along so well!!

Unfortunately, he left this life too early about 2 years ago. Even more tragic than that, it was a self-imposed passing. One of those tragic irrational decisions.  We don’t know why he did it. There was never an inkling of indication that he could do something like that. Probably rarely is. 

What’s honestly worse than the mistake my father-in-law made is the wake of destruction he left behind. For two years, I’ve watched my wife struggle for answers in coping with the fact that her dad is gone so soon and in a senseless way.  She walks through life with grace and beauty!!!  I can only hope to be the human she is one day.  It’s amazing and I am so proud of her. 

But I also know what she has gone through. And then I don’t.  She carries a burden that I will never understand. And I am her husband and should know these things right? Her best friends have even less understanding of what she feels on a daily basis than I do. They mean well and love her….but they can never understand how she is feeling at any given moment. 

Suicide is extremely taboo in our society.  And that’s unfortunate.  It happens often.  Too often.  It happens to us and to people we know dearly.  But we won’t talk about it and share how that feels.  And because of that, those we encounter every day don’t know what we are going through.  That sucks.  We should share our scars.  Scars are tattoos with better stories.  And telling our stories and our experiences helps others get through theirs.

So what’s my point?????  My point is this…I defend trucking companies and theirs drivers every day.  The insurance guys out there get calls everyday that a client has been in an accident. We’re use to it.  What we deal with everyday doesn’t seem to effect us too much.  We’re conditioned and we forget what the other side experiences in these circumstances.

I had a client tell me once after an accident that the life of the company was riding on the back of any given driver when an accident happens.  And this wasn’t a selfish comment…this was a very emotional comment that bothered him.  He supports thousands of employees, and then their families on top of that.  It is extremely emotional to him that the house of cards could tumble down on him and effect so many people.  It matters to him.

In this industry, and in life in general, we should be sensitive to those that we encounter and not jaded in our approach. Don’t get me wrong…I’m not comparing a trucking accident and the emotions that a company feels to suicide. So don’t get bent out of shape in misconstruing my analogy here. I’ve lived the effects of suicide with my wife, so I’ve got a little street cred here making the analogy.

But next time you’re out of your bubble and amongst other people, remember that they are probably going through something. Maybe they’re struggling with scary thoughts they’re having. Maybe they are mourning the loss of a loved one in a tragic way. Maybe they’re involved in a lawsuit and their livelihood and the livelihood of tens, to hundreds to thousands of families may be riding on it.

Let’s make an effort to remember that everyone is going through something in their own way and we shouldn’t minimize and forget that just because we don’t understand it or are use to it.

People are dealing with some messed up shit everyday. It doesn’t matter if we don’t understand it or it wouldn’t be a big deal to us. It’s a big deal to them. Let’s respect that we all have big deals. 

What A Ride!!

Stay with me here…

I’m not ready to die. I feel like I’ve got a lot left to give. But in thinking over my life, I’ve given it hell. I don’t have regrets. Yeah, I’ve done some dumb stuff that I wish I wouldn’t have done, but those things have made me a better person.  You live and you learn right?

But if I cashed out right now, I can look down on y’all and say I’ve done it right. I’ve loved my wife, loved my kids, loved my friends, loved my job, and all long the way I’ve done it my way. Right, wrong or indifferently, no apologies. I’ve raised hell and done it how I knew to do it. Redneck scorched earth mentality!!!! And it’s been one helluva ride so far. So if I church tomorrow, I can rest easy knowing I’ve done it right.

But don’t worry…I plan on waking up in the morning on the right side of the dirt. I ain’t goin’ nowhere anytime soon if I have anything to do with it! I’ve gotta lot more hell raising to do. 

This whole trucking business is tricky. Doesn’t matter if you are me and doing the lawyerly thing, if you are a carrier running trucks, a broker placing loads, or an insurance company taking on the risk.  We’re all giving it hell together.

And that’s what it is…hell out there.  We wake up every day and someone is getting beat, battered and bruised.  We lose a case that shouldn’t be lost, we have a bad wreck that wasn’t our fault, or the loss-ratio isn’t what it needs to be.  We’re a targeted industry and that ain’t changing any time soon.

So what do we do???  Throw our hands in the air, fold our cards and bow out?  No!!!  We give it hell is what we do.  Because we are truckers and its what we do.  We give it seven shades of hell and when all looks lost, we get off the floor and throw another punch.

So yeah, I ain’t dead yet.  But when I am, you’re gonna know I left my mark.

Make sure you leave you mark too!

Don’t Let Your Driver’s Head Be On A Swivel

This video has nothing to do with this article other than I like how it glorifies our drivers and what they do.  And because my fellow trucking lawyer boy Matt Hefflefinger loves country music and will get a kick out of it!

I’ve written about this before in Anatomy Of A Trucking Case: Part 1, Rapid Response.  I think it’s a good read because I wrote it.  Judge for yourself.  And take it in conjunction with the below suggestions.  You will be leap and bounds ahead of the pack in defending yourself if you do.

But I read a recent article in Transport Topics that made me think about revisiting this.  I’m a big proponent of getting a lawyer involved in a bad accident very early on, particularly at the scene right after it happens.  But I’ve got a family to feed and I’m a slimy lawyer, so of course I’m going to say that right?

But I also realize that’s not always possible because of the timing.  Or maybe the cost doesn’t justify it.  Whatever the reason, you can train your drivers and companies to do many of the things that us lawyers find important later on in case we aren’t called out to the scene.  And I encourage you to follow some of these suggestions from the Transport Topics article.  Props to Wayne Andrews, a safety representative for insurance company Marvin Johnson & Associates, for laying these out so succinctly.

  • Staying calm and remaining focused is the best way to navigate the confusion that erupts after a truck accident, and orderly preparation before anything bad happens gives a driver an edge in case of an unfortunate event.
  • Drivers should remain polite and professional, but beyond that, they should limit what they say.
  • Don’t sign anything at the scene of an accident.
  • Don’t admit fault or apologize, and don’t discuss the accident except with police, your company and your insurance company.
  • Bad luck often doesn’t stop with one event. Drivers should secure the scene of an accident with reflective triangles and four-way flashers.  Secondary crashes can be worse than the initial event.
  • Documentation is very important.  Drivers should take lots of pictures from from various angles, and take notes on weather condition, witnesses and the chain of events. But don’t take pictures of injured people!
  • Drivers should know their companies’ accident-reporting policies and should fill out report forms quickly.  Following policies protects both the driver and the company,

Wayne Andrews did a good job with these.  I don’t know him.  But he lays it out well.

Make this stuff part of you driver training.  It will pay you in spades.

You Can’t Judge A Book By It’s Cover

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See that playhouse right there?  Seems simple right. Playhouse that kids play on.

But pay close attention…are you looking?  There’s a set of monkey bars on your left side. Big deal?  Yeah, I agree.  Just a set of monkey bars that any kid 5 and older can cross.

However, it’s not so easy all the time.  See, I have a seven and six year old boys.  Check ’em out.  They’re monkeys (and yeah, I incredibly out kicked my coverage with my wife!!!)…

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Both seem normal right?

My six year old loves to show me his “tricks” that he can do crossing the monkey bars.  But my seven year old literally can’t hold himself up to even hold onto the monkey bars.

That’s because he has a disease called Duchenne Muscular Dystrophy.  Most people see him at this age and never are the wiser.  Buts it’s a deadly disease.  A disease that will literally kill him in his early twenties.  Tough stuff huh?

Now…what does that have to do with trucking you ask?  Well, a lot in a way.  If you want to know more about my son or DMD, call me and I would love to tell you about it.

But for now, this is about trucking.  And the analogy is simple.  Much like my son’s disease, looks can be deceiving….people don’t like big trucks.  Big trucks take up the road and get in our way.  We get to our destination slower because trucks get in our way.  Damn a truck!!!

If you can’t tell, of course I’m being facetious.  We are not inhibited by trucks.  In fact, what trucks provide our lives, it empower us.

Don’t take your trucks and this industry for granted.  Like my son, it’s too innocent and to crucial to be judged by it’s cover. Hug your local trucker today.

Trucking Industry Top 10 List

Whooooooo!  One month has passed since I posted.  I promised myself this year I wouldn’t go more than two weeks without posting something.  Epic fail three months in.

But I have a good excuse (okay, maybe not good, but it’s an excuse and I’m using it).  In addition to my regular work load and trying to be a family man, I have been out of town for two weeks straight at various trucking conferences.  First I attended the Great West Casualty Leadership Symposium in Knoxville.  I’m thankful to call them a client, and more importantly friends.  Great conference, and if you ever get a chance to attend, I recommend it.

After that, I went to New Orleans to the ABA Trucking MegaConference.  Let’s just say that with me attending, the best and brightest minds in the trucking industry and trucking legal world united!

Having attended that the ABA Conference for about the last 10 years, one thing that is always presented, and which is always a crowd pleaser and well put together, is a trucking industry top ten list, particularly top ten where trucking and the legal world cross paths.  So I thought for this post, I would share what an all-star panel (Andrew Stephenson, Christy Comstock, Michael Langford and Nigel Green) shared last week.

So without further ado, here are the Top Ten issues (as we lawyers see them) facing the trucking industry right now:

 1. ELD Mandate

ELD’s will be required by 12/18/17.  I’m no rocket surgeon, but that’s soon!  Carriers with ELD’s are 11.7% less likely to be involved in a crash if an ELD program is mplemented.  Small carriers are going to have trouble with ELD implementation if they haven’t already started because of the steep learning curve.  Finally, a selling point…drivers are learning that ELDs actually maximize their hours and therefore their pay.

2. Hours of Service

Always an issue and will never go away.  But the recent DOT study finding there was no appreciable benefit from the 34 hour restart containing two 1 a.m. to 5 a.m. periods seems to have nipped this in the bud for now.  So business as usual under the prior HOS regs.

3. JB Hunt Amicus Brief

This one was interesting and something I had not heard about.  So track with me.  It’s out of Indiana and a case where a JB Hunt driver loses control on icy interstate, jackknifes into median, but no other vehicles involved.  The cops come and attend to the accident.  The JBH driver is transported from the scene via ambulance, but before he leaves, no triangles/flares are put out and the flashers are not activated. In fact, the police that responded to the accident determine the tractor-trailer in the median is not a safety hazard and then the police leave the scene to tend to another accident.

Hour later, another car comes along and spins out of control on the interstate and into the trailer.  A lawsuit is filed and litigation ensues.  The case ends up being tried three times, two times with a mistrial.

But here’s where it gets sticky…on cross examination, a JBH safety rep is asked whether a motor carrier should monitor weather conditions, notify drivers of bad weather conditions, and shut down operations when necessary. Unfortunately, as a good safety manager, he agreed. However, the FMCSA hazard conditions regulation interpretation speaks differently and leaves the decision to a driver to determine weather conditions based on traction and visibility. Because of the testimony, the Court allowed a direct negligence claim against JBH.  The jury came back and assessed 40% to the driver that hit the tractor, 30% to JBH Driver, and 30% to JBH.

The problem with this case is that it allowed a direct claim against JBH when vicarious liability was admitted (which a lot of states don’t allow). Likewise, it allowed a direct claim that the carrier has to monitor weather, contrary to FMCSA 392.14.  Also it allowed admissibility of preventability of the accident (see Number 7, below).

4. Entry Level Driver Training

Here’s the deal…Anyone who is getting a new Class A or B license, or who is upgrading, as well as anyone getting hazmat, passenger or school bus endorsement, are required to undergo the new driver training.  Applicants are subject to a training program administered by registered training providers (Training Providers Registry) prior to taking the state test.  There will be a classroom and behind-the-wheel component from a defined curriculum; No minimum number of hours.  Once the training is completed and the test taken, FMCSA sends that to the state to let them know the driver will be seeking the license and taking the state test.

5. Driver Health

Sleep apnea is being discussed again and FMCSA has issued recommendations.  They are not rules, but the recommendations are pretty stringent.  And the testing/treatment for sleep apnea is expensive.  It also can get a lot of drivers: Over 42, male, and you snore, you may have SA.  Body Mass Index is also included: Over 40 BMI, get tested. Over 35, and the above things, get tested.  It’s gonna get a lot of our drivers!

6. Dakter v. Cavallino

This is a Wisconsin case.  It’s one of kind now and not the law of the land.  But pay attention to this.  Essentially, it allowed a jury instruction that said truck drivers are professionals and have a heightened duty when operating their trucks, more so than the normal motoring public.  We don’t want this.

7. Admissibility of Preventability Determinations

Preventability decisions…Safety departments love them, Claims hate them.  Know this…A PREVENTABILITY DETERMINATION IS NOT REQUIRED UNDER THE REGS.  Preventability comes from three different definitions (FMCSA, NTSA and ATA).  With preventability decisions, there is no regard to what adverse drivers may have done or contributed to the accident.  Practice pointer…Rename the reports and call them Remediation Reports and focus on remediation (Counseling/Re-Trainin, Discipline, Termination).

Also, talk to your legislators.  Seek legislative change, both state and federal statute.  Ask them to use simple language to prevent these reports from being admissible in Court.

8. Graves Amendment

You probably know this one.  Lessors can’t be liable for the lessee’s negligence if they have an accident.  Stratton v. Wallace put a ding in this Amendment by allowing a lessor to be found negligent (call me if you want specifics as to why).  However, Eisenberg v. Cape Bestway extended Graves to interpool defendants.  So that’s good.

9. DOT Speed Limiter

Not coming anytime soon.  Boom!

10.  ??????????

Truthfully…I didn’t write this one down.  Let’s assume it wasn’t that big of deal!!!!!

Hope you enjoy.  And if you have any questions or want to know more…..holla!

There’s A Snake On The Plane And You’re Invited!!!

I’m all about shock value.  So if I get your attention with my blog titles, I’ve won!  Now please read on because it’s worth it…

Consider this a PSA post for now, opposed to a how-to practical advice post that I usually strive for.

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I see more and more trucking claims and cases that you would think are “slam dunk defense wins, they’ll never file suit, we aren’t at fault” accidents.  Take for example that YOUR truck gets rear-ended by someone.  You’re good right? Yet the plaintiffs and their attorneys sue you.  Trust me, it happens often.  I’m actually in the process of putting together a presentation on this topic for speaking at a trucking conference at a later date.  Let me know if you’re interested in hearing more about it and I’m happy to share the presentation PowerPoint when it’s done.

When this happens, I feel the anger of my clients.  They take it out on me (everyone loves to pick on the lawyers right).  And I can be the middle-man punching bag.  That’s okay and what I get paid for.  But you wonder…why are they filing this suit?  Why in the hell would anyone ever pursue a claim like this??

Well, because they can.  And when they do, they dive into discovery about your business and your safety program and get you to trip yourself up.  They nicely walk you into the very corner they throat-pin you in.  Now all of the sudden your slam dunk case is not so pristine anymore.  They’ve exposed your warts.

See, the plaintiffs’ bar actually teaches this stuff.  They spend all day in a classroom at seminars and teach plaintiff’s attorneys how to make chicken salad out of chicken $h!t.  I looked for a picture I’ve seen before to prove it to you, but couldn’t find.  So just believe me when I tell you that there is a seminar that is taught on how to sue YOU when the plaintiff rear-ends YOU.  They make the person rear-ending you your fault.  I saw it on the internet, so you know it’s true!

It’s actually called the Reptile Theory and it takes advantage of the psychological fears of jurors.  In a nutshell, it tells the jury “you need to send a message to this company because this accident could just as easily be you or your family!”

Well, the defense bar is striking back!  I am a member of the Defense Research Institute’s Trucking Law Committee and I had the pleasure of speaking at our seminar last spring.  Well, this spring (details below), we are putting on one of the most practical, informative seminars that I have ever seen in the trucking defense arena.  And I’m not saying that because I’m a member.  Hell, I’m not even at it!  But I will be there.  For any trucking lawyer, trucking company personnel who deals with claims, or trucking insurer, this is an absolute must attend.  I’m staking my reputation on that.

DRI Trucking Law Committee is presenting an advanced workshop for trial lawyers, senior claims examiners, and industry professionals, dedicated entirely to defending against plaintiffs’ use of the Reptile Theory in trucking cases. The one day program will engage best practices and practical techniques for conquering reptile cases. It’s not boring stuff.  It will be geared towards providing useful “how-to” strategies to consider in your answer, discovery, 30(b)(6) depositions, pretrial motions in limine, voir dire, examining witnesses, and closing arguments.  Bottom line…this is gonna be HUUUUUUUGE!  Here is the brochure and the link to sign up is below.

The program faculty is headed by Bill Kanasky, Jr., PhD., from Courtroom Sciences, Inc. of Irving, Texas, who is a well-known jury consultant known for combatting plaintiff’s reptile theory strategies. 

Other faculty members include some of the brightest and most successful trucking defense attorneys in the United States (I know these people and call them friends;  And yet they still left me off the speaking list!!!!!):

1. Carlos Rincon, Rincon Law Group, PC, El Paso Texas
2. Matthew G. Moffett, Gray, Rust, St. Amand, Moffett & Brieske LLP, Atlanta, Georgia
3. Kurt M. Rozelsky, Smith Moore Leatherwood LLP, Greeneville, South Carolina
4. Wendy L. Wilcox, Skane Wilcox LLP, Los Angeles, California
5. Heidi E. Ruckman, Heyl, Royster, Voelker & Allen PC, Rockford, Illinois
6. John (Jack) J. Laffey, Laffey, Leitner & Goode, LLC, Milwaukee, Wisconsin
7. MaryJane Dobbs, Bressler, Amery & Ross PC, Florham Park, New Jersey
8. Matthew S. Hefflefinger, Heyl, Royster, Voelker & Allen PC, Peoria, Illinois
9. Bradford G. Hughes, Selman Breitman LLP, Los Angeles, California
10. Stephen G. Pesarchick, Sugarman Law Firm LLP, Syracuse, New York

It’s going to be small in attendance and intimate.  You won’t be one out of 500.  You will learn.  You will be engaged and participate.  You will leave empowered to defend your company.  And you need to sign up.  Do it here.

Hell, I almost forgot to mention…if you are with a trucking company or a trucking insurer/claims, you get to attend for free.  Silly me!  I’ll see you in Chicago on May 24 and will buy you a drink when while we’re there.

 

Importance of Social Media In The Trucking Industry

Not really related to this post, although there are a couple of funny references to technology, but I thought this clip would get you in the mood for the tax season upon us:

This post is about the importance of the transportation industry to use social media. BUT BEFORE YOU TUNE OUT, HEAR ME OUT…I promise you there is value in reading this post and considering the use of social media going forward, regardless of who you are or what you do in this industry. In fact, as you will see at the end, I believe it can even have a positive impact on more favorable jury verdicts towards our industry.

My first post on this blog was on June 19, 2013, called Why I Love The Trucking Industry And You Should Too. Since that time, as many of you who actually keep up with this rambling redneck know, this has been my rally cry for this industry.  I started the blog for a couple of reasons, one of which was marketing myself to transportation companies who I believe I could benefit. But another primary reason was to share what I had to say about this industry, hopefully making a difference on the issues transportation faces, and the way the transportation industry is defended in legal matters.

I wish I could say that I’m the sharpest knife in the drawer, but I’m not. However, I believe I have something to offer and this blog, along with the feedback I’ve received from everyone who reads it, has made me smarter and helped me hone myself as a transportation lawyer.

I didn’t know anything about blogging, or reaching out on social media. But I started watching others do it and I felt compelled to try something out of my comfort zone. Well, several years later, its paid off.  I even tricked Transport Topics into publishing me this week (suckers!!!!!!)

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Social Media for Recruiting

  • More people are connected on social media than ever before. So why not utilize this enormous pool to recruit. Lord knows we hear enough about the driver shortage. You wanna pull new drivers…meet them where they are!
  • As HNI pointed out on their blog recently, social media is a fantastic way to recruit new drivers. But when doing so, go all in. Plan out your strategy, assign someone dedicated to the social media posting to ensure consistency, and above all else, do not neglect your company brand and the values that are important to your company. Prospective hires want to hear employee stories, see pictures, etc., of what life would be like with your company.
  • As HNI points out, your brand is the backbone of social recruiting.

Social Media for Information and Learning

I’m a fan of LinkedIn. I joined LinkedIn about five years ago when I got back into defense work and was trying to re-connect with old clients, as well as find new ones. And I did. But what I also found was groups on LinkedIn like DRI Trucking Law, Motor Carrier Safety Group, Transportation/Trucking Insurance Forum, Transportation Risk Group, Transportation Litigators, Transportation Law Group, and Association of Transportation Law Professionals. I get emails from these groups throughout the week, conveniently condensed, about the latest news in our industry. Being able to stay on top of what is happening now within this industry because of like-minded people sharing the news and what they know has made me a better trucking lawyer. And it can make you a better company as well. Knowledge is power!

I use to feel like I never had anything particularly special to offer in the way of expertise to the trucking industry. I figured that “someone else” had it covered, so I would just sit back and read what the “experts” have to say. What I figured out once I made the choice to dive into social media and play a part in it is that I could be an “expert” on this stuff too if I was willing to dedicate the time to offering quality content. So I guess I’ll toot my own horn for a minute and say that I think I have carved out my niche to offer my expertise to the defense of the trucking industry.

Social media is not for everyone. I get that. But even a redneck like me from Hazlehurst, Mississippi, can say with some certainty that this whole internet thing is here to stay. So if you can’t beat ‘em, join ‘em.

Finally, while the added benefit of financial gain should be enough to give it a try, it also helps from the liability perspective when accidents happen. Juries want to sympathize with companies, and actively participating in social media helps to humanize trucking companies to the general public, telling them what we do and who we are. Isn’t that what our new Trucking Moves America branding is all about?

So take a chance.  You be the one to portray what your company and your industry are really about.  Don’t let other social media trolls be the ones to do it.