Webinar Replay #10: Avoid the Nuclear Verdict, Prepare Your Defense Now

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Good morning, everybody. Jay Wommack founder and CEO of Infinit-I Workforce Solutions. Thank you so much for joining us today. Our webinar will begin in just a few minutes appreciate y’all sitting on hold.

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While we’re here, waiting for everybody to jump on, I want to give a special shout out to our existing clients that are here with us today.

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You are proven to your entire workforce that safety is your number one concern is your number one priority and we appreciate that because

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We’re very, very good at delivering training for safety, for orientation, for ongoing corrective action.

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And you obviously have taken the jump into the company right now and you’re using it, you’re, you’re saying that your

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people are valuable to you. And that’s exactly what we want. That’s what you want. That’s what people want to hear. So

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We do have all the answers. We know exactly what we’re doing a web based training, we’ve doing this for 15 years but I have a special offer today for our prospects that show up.

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We’d like to offer you a 30 day free trial using our system completely. See what it’s all about. See if you like using some like this, you know, remote training is jumped to the forefront.

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Of the world in the last 90 days, the world has shifted has changed remote training. We’re the experts we know more about remote training them virtually anybody in the entire I guess world-universe.

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So I want to offer the 30 day free trial, time offer limited. You know, we can’t make this go on forever, wish we could.

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I am going to go ahead and throw in CSR reps. Someone who a client service rep, they can make this thing hum for you, get user activity up on system because that’s the key. Get your people to use the system.

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I don’t care how many bells and whistles, you’ve got if they’re not going to use it. It’s not going to have an impact for your company. And at the end of the day, that’s what we’re all about.

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We want to see your top line and bottom line and improve. We want to see your safety record improve. That’s what we do. And we do that better than anybody out there.

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Thanks for sticking with me. In the meantime, it’s what you came for the webinar. So Mark, if you’re ready, I’m will hand it over to you.

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Mark Rhea: Good morning, everyone. Thank you very much for that offer Jay and it’s great to hear your support for our industry and in the challenges that we going through both short term and long term. So thank you very much for that. We’ve got a tremendous

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Mark Rhea: Segment today on a issue that’s on everybody’s fix it list, which of courses its, avoiding or managing through this issue of nuclear verdicts. So

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Mark Rhea: My name is Mark Rhea. I’ve got 35 years in the trucking industry. The last 28 with the Frozen Food Express right here in Dallas, Texas.

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Mark Rhea: And one of my responsibilities have been in the involvement of lawsuits and defending truck crashes all across the United States.

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Mark Rhea: And today we have joining us a defense attorney that I work very closely with his name is Peyton Inge and I’ll introducing a little bit more in a minute, but I will

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Mark Rhea: Certainly validate that I’ve had that pleasant experience if there is a pleasant experience in defending lawsuits of hearing a Judge Read

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Mark Rhea: Your motion for summary judgment has been approved, those don’t happen very often. But it has happened with a coordinated.

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Mark Rhea: Effort and Peyton is got a lot of experience in that. So also, I will tell you that Peyton is a CDL holder and has his own truck. I’ve had the opportunity to ride in his truck, but he wouldn’t let me drive it. So maybe one of these days, one of these days I’ll get to drive it so

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Mark Rhea: Payton, you want to introduce yourself here can understand. I’m going to make a declaration that I think you might have the record for getting the most summary judgements on truck crash lawsuits, maybe in the entire industry. So thank you very much for what you do for us.

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Peyton Inge: Well, thanks for having me Mark. Obviously, it’s great to see you again, Next time I promise I’ll let you drive

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Peyton Inge: but that’s my old little 359 doesn’t turn very well and she stretched and slammed and it just a she’s a little bit difficult, but a lot of fun.

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Peyton Inge: Yes sir, in terms of background. I’ve been driving rock buckets since I could walk. I should say cattle trucks out on the ranch paid for school by hauling rock.

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Peyton Inge: But, you know, the key was summary judgments, is that you’re getting your case dismissed the case against you, dismissed.

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Peyton Inge: Long before you have to go to trial. So you save yourself a lot of money. And also, even if you don’t win the pre trial dismissal motion.

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Peyton Inge: It’s a good way to educate the judge on just how weak. The plaintiffs case is so I try and fall one and just about every case. And we’ve met with more than our fair share of success.

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Mark Rhea: Well that’s a breath of fresh air. So just, just to kind of set the tone on this nuclear verdict issue.

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Mark Rhea: I know most of you have seen the ATRI research paper that was recently.

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Mark Rhea: Submitted and in just to summarize it, it said that since 2000 the average verdict.

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Mark Rhea: For truck crashes is 900% so when people ask the question why our insurance premium rates going up and why are

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Mark Rhea: renewals difficult its because of these nuclear verdicts. And what we’re going to talk about today.

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Mark Rhea: Are a couple of things to think about in in in avoiding or preparing yourself ahead of time to keep you out of that nuclear verdict world. So I’ve got a couple of questions before we get into our formal presentation. The first one is on the avoidance of nuclear verdicts.

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Mark Rhea: Again nuclear verdicts are multi million dollar verdicts. So the question is on awareness training you know the repetition of getting

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Mark Rhea: training and awareness of events in front of your drivers on a regular basis. And of course, having that training available.

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Mark Rhea: and participation in that training can be different. So my question, and then we’re going to have a poll question come up. But my question for Peyton is, does participation in assigned training

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Mark Rhea: have an impact on your ability to defend a lawsuit? We’ve got the poll question while he’s answering

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Mark Rhea: What percentage of your drivers complete their training assignment so Peyton you want to give us a run at it having training and training participation rates.

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Peyton Inge: Mark, that’s a fantastic question, and it dovetails nicely into the whole nuclear verdict question, right, because the number one tactic that these plaintiffs lawyers, try and take.

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Peyton Inge: Is a try and establish that it’s not just the wreck itself that something this driver did was indicative of a lack of training or lack of proper supervision by the company.

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Peyton Inge: And obviously as professionals in the industry. We all know that’s bogus.

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Peyton Inge: But that’s the argument they try and make to the jury and they try and inflame the jury and make the jury mad at the trucking company.

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Peyton Inge: By showing where the driver didn’t go this training or that training and they completely ignore the fact the driver was a qualified driver and more than capable

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Peyton Inge: Of being out on the road that day with that load, regardless of whether we went to training additional training or not. But, you know, when I look at it across the industry. I think that probably

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Peyton Inge: 70% of the training that’s offered by the company is able to be proven to have been completed by the driver.

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Peyton Inge: And that’s one of the things that yawls program really helps is that if I can just go in or the safety director can go and simply request.

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Peyton Inge: Copies or proof that a specific driver has completed training and identify what training occurred.

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Peyton Inge: When it was completed and how it was completed, it makes my job much easier because again, my goal early on is to try and get the direct claims against the company for negligent hiring supervision and training thrown out as early as possible.

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Mark Rhea: Okay, that’s a. So a common question in discovery is going to be what are your drivers participating and what percentage of those. Colin do you have the results of that poll?

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Mark Rhea: We got 24% that say 100%. That’s the answer. You want.

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Mark Rhea: But we’ve got a pretty pretty good between 75 and 99% so the fact is,

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Mark Rhea: Making your training, simple and easy to access and not a burden can certainly help with the defense of a nuclear verdict. So the second question I’ve got is on post accident procedures.

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Mark Rhea: Those of you that were listening. A couple of weeks ago when we had the Major Nordloh and CVSA was very clearly.

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Mark Rhea: Defined car, truck accident 70% of truck car accidents, the critical reason for that crash rest with the car, which means 30% of those truck car crashes are defendable so question I’ve got. And I know you’ve seen a wide variety of post accident.

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Mark Rhea: Actions or lack of actions or decisions or statements or things that are done right immediately following a accident.

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Mark Rhea: That has an impact on your ability defend a lawsuit. So, can you can you give us a little insight on how we can train and make our drivers aware of what they need to do on the scene of an accident, immediately after an accident, fault or no fault.

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Mark Rhea: Right, and I think you’re on mute.

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Peyton Inge: I am. I apologize. I am a huge fan of an informal post accident procedure program. Okay. So other than we know if it’s a reportable incident transport or whatnot, we need to go get a drug test on that driver.

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Peyton Inge: Other than that I like to see an informal post accident policies, but what your driver needs to be reminded of is that he or she is the face of your company.

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Peyton Inge: And so to the extent that you’ve had a collision with somebody that isn’t out to get you, or isn’t looking for a handout. If that driver is friendly non aggressive, things of that nature. It will fundamentally help us down the road.

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Peyton Inge: Compare that with a driver that is aggressive or angry or denying anything.

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Peyton Inge: You can you can create a scenario where that four wheeler is now angry at you or your driver and they’re not going to want to

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Peyton Inge: resolve that case or maybe even think about not filing a lawsuit against you. To begin with, they’re going to do it because they’re simply mad.

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Peyton Inge: So your driver has to know from the date you hire him and remind them during the course of their employment that they are the face of the company, they need to act like the constant professionals that you hire them to be.

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Peyton Inge: Number two, when that accident happens if it is safe and only if it is safe to do so that driver needs to get out the phone.

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Peyton Inge: And after they determined that they either need to call 911 and do it or they don’t need to call them in one because someone else already has.

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Peyton Inge: They need to take photographs that depict the path of travel, where the car and know how the car and how the truck.

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Peyton Inge: Traveled to the final resting point take pictures of where the car and truck actually are take pictures of any skid marks, things like that. Again, this is only if it’s safe to do so.

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Peyton Inge: But those the types of photographs that allow me or risk safety to come in and figure out what happened and why and to corroborate the driver side of the story.

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Peyton Inge: And it makes it much, much easier. The driver also needs to know. Look, we’re not going to go out and just volunteer a whole bunch of information. This is a tense story.

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Peyton Inge: You know we got a lot of adrenaline going in our system, make yourself available to the police officer to answer questions.

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Peyton Inge: But you don’t want to be aggressive about it but just be available, don’t be defensive, but don’t volunteer a whole lot of information.

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Peyton Inge: Number three, if there happens to be a camera in the truck. You might think about making in the video footage is useful to the officer. We’ve had a lot of success with getting the officer on the phone.

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Peyton Inge: Offering to make that camera footage available and then sending a eight or 10 or 15 second clip to the officer to show that it wasn’t our fault.

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Mark Rhea: So, so it wouldn’t be a bad idea or action item for the listening audience to to maybe

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Mark Rhea: Simulate some an accident with their drivers and say, what would you do, and then also as our awareness ongoing awareness assign

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Mark Rhea: This, this is the content. This is the training of that you need so that you more than likely will do that in the event you’re involved in an accident and that can make a big difference in in a non nuclear verdict versus just a regular lawsuit.

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Mark Rhea: So I would just encourage everybody think about that. What are my post accident procedures, do my drivers know what those are, and how can I get that information to them

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Mark Rhea: so that they’re ready. Okay, well,

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Mark Rhea: That sort of sets the tone for the presentation and I will turn it over. I know you’ve got some some dash cams, and some war stories. So if we could pull up the PowerPoint.

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Mark Rhea: There it is. There’s your truck. So take it away, Peyton.

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Peyton Inge: Yes, sir. That is my old Pete we travel around the country. Probably 35 to 40,000 miles a year to races, conferences and whatnot. A lot of fun to drive. But it definitely gives you a great opportunity to visit with drivers and whatnot. When you’re stopping

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Peyton Inge: And spending the night on side of the road, things like that, because everybody’s curious when you find out your lawyer. They want free legal advice, which is good for everybody.

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Peyton Inge: But it’s a lot of fun.

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Peyton Inge: The

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Peyton Inge: You know, anytime you have a claim or potential claim or even before you have a claim and just planning down the road, because the cost of doing business these days is

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Peyton Inge: You know potential crash and a potential suit but you’ve got to hire the right team from day one.

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Peyton Inge: And you’ve got to hire an attorney that can win, not just try case, the reality of got a lot of people will tell you they can try case, a lot of people tell you they know trucking and the reality is they simply don’t.

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Peyton Inge: The

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Peyton Inge: Trucking is one of those types of law that it’s probably the most dangerous of any type out there because you can get your head figurative blown off with some of these judgments of these nuclear verdicts.

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Peyton Inge: To get to know somebody that or hire somebody that knows trucking, that’s likable, that knows the judge, knows how to find the ammo you need to prove your case.

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Peyton Inge: And that ammo is going to be in terms of, one proving that your drivers qualified trained and that at the end of the day, he didn’t do anything wrong in this particular collision.

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Peyton Inge: The key is is getting the company out as quick as you can. If you get sued and then being able to educate that Judge early on as to the strengths of your case and the weaknesses of the plaintiffs.

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Peyton Inge: Next slide please.

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Peyton Inge: Some of the things that will increase your risk for particular case are going to be your venue concerns and we all know dangerous places in Texas, but there are places in Louisiana. The Bronx and, you know, around LA and Bakersfield that are incredibly dangerous to anybody.

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Peyton Inge: And you’ve got to be incredibly aware of the potential for a large verdict even parts of New Mexico and Arizona. Now you got to be careful going in that

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Peyton Inge: That case could be worth instead of being worth pennies. It could be worth hundreds of thousands of dollars if not more so that is one of the main concerns we look at.

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Peyton Inge: When trying to decide how we’re going to proceed the case we want to know if there are any of your initial indicators of a bad venue that

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Peyton Inge: It’s going to be urban,

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Peyton Inge: lower income, going to look at the education average in the city leadership, like it or not, most of your cities where you’re going to have a more adverse or poor jury pool. We’re going to be democratic, run, you got to be aware of that going in.

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Peyton Inge: And Mark. I’ve got a dog here. I may have to assigned for something real quick

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Mark Rhea: I’m getting

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Peyton Inge: Seconds. I will be right back.

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Peyton Inge: Because my dog. I’ll be right back.

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Mark Rhea: Sure. Well, I wouldn’t want to talk about venues, you can always pick the, the location that you have an accident.

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Mark Rhea: They happen across the board, but I can assure you the, the location of the venue has a big impact on

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Mark Rhea: the the potential for a verdict. So if you’ll go to the next slide.

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Mark Rhea: Let’s talk a little bit about discovery.

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Mark Rhea: Discovery. most everyone probably on this call has been involved in a lawsuit in the old get a letter to preserve the documents and

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Mark Rhea: They want everything they’re going to ask for everything. And of course, you can’t generate documents post accident and what you got, is what you got.

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Mark Rhea: And the documents the preparation of documents, the availability of documents from my experience has set the tone on how the lawsuit will progress or whether it sets up for settlement and

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Mark Rhea: It’s a big issue, and specifically in our world of training, you know, the ability to produce a document that says my guy.

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Mark Rhea: Unfortunately, had a wreck, but he was at night, but we have training on night driving that he completed. Here’s the daytime, place, and or intersections or a lane change or whatever that might be.

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Mark Rhea: And that certainly changes the tone of how these these lawsuits progress so Peyton you wanna, you want to detail that a little bit for us.

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Peyton Inge: Yeah. And so, you know, Mark, you hit on you hit on a couple of very, very good point. You know, the, the key is going back to the summary judgment issue is, is that if you can convince the court that there is no there there.

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Peyton Inge: Then you’re going to get at least a large part of the plaintiffs case thrown out. So what I like to do in discovery is don’t fight about things that aren’t important.

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Peyton Inge: I get requests that are an arm’s length long asking for everything under the sun. And we’ll go through some of the noxious examples I get here in a few minutes.

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Peyton Inge: But you know, I will try and produce evidence that the driver has been trained, because we all know that that driver was qualified as a driver for the day he got his license to operate that truck.

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Peyton Inge: As a matter of best practices, we might go through and provide additional training and it helps to identify that

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Peyton Inge: And just produce it without any argument that’s where your platform is so useful to us and us in the industry is you can basically hit print or send in and provide it.

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Peyton Inge: Being proved that the driver was trained on X,  Y, & Z day and then that way you avoid unnecessary fight with plaintiff’s counsel because what I try and do is I make sure that when I go into that judge.

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Peyton Inge: That I the most credible person in the room. And if I waste my credibility arguing over something that’s not important. The next time I go in there, the judges going to remember that it’s not going to be very happy.

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Peyton Inge: So when I get these requests for documents. A lot of times they asked for everything under the sun. And what I will try and do is I produce the things that are relevant to the case that’s going to be driver training

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Peyton Inge: on qualification file. If you had a post accident report any type of those things that aren’t privileged

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Peyton Inge: I’ll go ahead and produce those without a fight. Because it doesn’t hurt us to play. It’s going to make us look good unless there’s something unusual in there.

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Peyton Inge: But then I use that as ammunition down the road to prove to the course that there is no case and plaintiff, you know, basically has take walk on most of the claims against against the company.

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Mark Rhea: As you and I became yeah you’re painting. I guess just as to ask a quick, quick question or observation I

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Mark Rhea: Guess it’s very difficult to defend a lawsuit when I don’t have this. I don’t have that. No, I don’t have these documents. I don’t know what you’re talking about. That does not set the tone for a reasonable defense.

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Peyton Inge: Yeah and that definitely makes it more complicated because you have these trucking experts out here that will say, well everybody in the industry has an additional training.

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Peyton Inge: Program, but you can’t prove it. And I get more concerned Mark when I have clients that say they conduct training or they have a policy that says training should can be deducted

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Peyton Inge: But I can’t prove the driver actually underwent that training because now that opens the door to an argument will judge

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Peyton Inge: The new training was important, and yet they can’t prove the driver actually did it and here’s the policy right here saying it’s important and should be done.

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Peyton Inge: That’s where I get more concerned and it makes it more difficult for me to get the company dismissed from the case early on.

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Peyton Inge: And those negligent hiring supervision type training claims can survive when they should have gone away. If someone either had appropriately written initial policy or improve the trading occurred.

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Peyton Inge: Another opportunity I see to help improve our cases when the plaintiff asks to depose our driver or safety representative or whomever

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Peyton Inge: These depositions are a great opportunity to prove that there is no case there and you do that by answering in a short and simple fashion.

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Peyton Inge: Not providing any ammunition to the plaintiff in their case.

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Peyton Inge: But that does take a lot of work as you and I have have had the opportunity to do before. I mean, you sit down and you work through the potential questions and answers.

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Peyton Inge: And the most, you know, the more the most accurate way to answer politely and simply

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Peyton Inge: But those depositions ultimately going to be the key to your case and obviously that’s sworn testimony, the same as if you’re testifying in front of a judge or jury.

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Peyton Inge: So especially. I mean, you’ve got to be right 100% of the time, you can’t guess you can’t lie for sure. You’ve got to be accurate. And that’s how you

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Peyton Inge: Button your case up and prove to yourself and your insurance carrier and ultimately the judge and jury. Look, you didn’t do anything wrong.

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Peyton Inge: You might also get a request for discovery that involves questions that have to be answered under oath. It’s basically a written deposition

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Peyton Inge: They’re typically short questions. But all of these all of these questions, you really need to work through with your lawyer because if

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Peyton Inge: This is particularly applicable to carriers that have insurance companies that have captive counsel or have specific attorneys that they use every time. Most of these guys, they send cases to

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Peyton Inge: They don’t try a lot of cases and. They sure don’t know the ins and out of trucking.

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Peyton Inge: And that can be a huge problem because the way law firms. A lot of times, work is you get a partner that will take a case end because I’ve had a good relationship with the insurance carrier and then that case is then actually handled and worked up by a much less senior attorney.

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Peyton Inge: What we run into a lot, especially when I inherit cases that have come from a different firm is cases that

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Peyton Inge: Weren’t worth a whole lot are now worth more, because the appropriate steps weren’t taken early on.

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Peyton Inge: What we see is that truck drivers and companies tend to just assume that the attorney doesn’t really need to know X, Y, & Z information. Don’t tell him and her.

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Peyton Inge: In the reality is, is that if that occurs. Your attorney, even if they knew what they were doing on the trucking component

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Peyton Inge: And it is unique in many ways, even if they knew what they were doing. They can wind up at a distinct disadvantage because they told the judge one thing, but it wasn’t 100% accurate.

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Peyton Inge: And some of these plaintiffs attorneys know trucking far better than the actual defense attorneys, and that’s where hiring the right team really comes into play. So if you have a young attorney or any attorney that asked you for the drivers qualification file.

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Peyton Inge: If you happen to have additional files on that driver inform your attorney of that and then make sure

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Peyton Inge: they know that you have these additional files because I’ve seen cases before where

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Peyton Inge: A company has a driver’s qualification file, but because somebody asked the DQ file that’s all they got that didn’t get the employee file that and get the write ups, they didn’t get

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Peyton Inge: other information, and so when the corporate representative goes in for deposition volunteers, which you shouldn’t do.

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Peyton Inge: But volunteer or somehow the plant discovers that there is additional information out there. Then they go to the judge and say we Peyton’s hiding it.

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Peyton Inge: And so you’ve got an attorney that is asking all the questions just help them help you and that’s where

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Peyton Inge: It is useful to inform the attorney of hey, look, this is the ins and outs of the trucking and then if you mark on your program. If you guys have

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Peyton Inge: The ability to produce all the training, just give your attorney everything. And if there’s something in there that you think is a problem. Make sure you tell the attorney that but make sure he or she has all the information you add that they asked for.

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Mark Rhea: So it

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Mark Rhea: would be a fair statement to say that your ability to produce documents at the discovery phase.

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Mark Rhea: Puts the plaintiff’s attorney in a decision mode on whether or not he’s going after the nuclear or whether he says, and I’m just going to settle this these guys with like they’ve got their act together.

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Peyton Inge: Yeah, you know, it depends on how much the attorney, the plaintiff’s attorney wants to invest in it. We’ve seen some of these plaintiffs attorneys that have one really big verdicts in other types of cases now start to turn their attention trucking because

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Peyton Inge: They don’t have any other ambulances to chase and I’m being facetious here but

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Peyton Inge: Some of those guys aren’t afraid to spend $100,000 to $200,000 on expert fees, even though the cases is worth a nuisance value and it becomes very hard to

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Peyton Inge: To talk to them and logical fashion because they’re just blowing money on a bad cause and they either don’t know or don’t care. Well, they’re trying to, it’s like playing cards are there. They’re bluffing on a bad hand.

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Peyton Inge: But yeah, if you all your ducks are in a row. And you can prove the training. It’s a simple negligence issue. Maybe our driver messed up. Maybe he or she didn’t

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Peyton Inge: If it’s a simple negligence issue most intelligent attorneys that have a large caseload are going to look for other cases to pursue

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Peyton Inge: And they’re going to realize that they’re never going to make you know they’re not going to get a nuclear verdict, knock one out of the park against you and they’ll move on. At least that’s the hope.

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Mark Rhea: Right.

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Peyton Inge: Next slide please.

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Peyton Inge: Okay, this kind of dovetails back to what we had talked about a few minutes ago, the keys to discovery is remember defense is a team effort.

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Peyton Inge: And your lawyer has to know this is part of hiring the right team your lawyer has to know the questions to ask to establish that your driver was 100% correct or nearly so in whatever he or she did prior to that incident and

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Peyton Inge: If they don’t know how to ask the questions and prove your case up of the plaintiff or they don’t know how to defend the case, they can make the case a lot more valuable.

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Peyton Inge: But it is a team effort. And so that takes you as a company educating your attorney on

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Peyton Inge: What you believe happened why you think it happened and making sure they understand what you’re telling them in the, particularly for the direct claims against the company.

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Peyton Inge: You want to make sure that that attorney has everything they need early on to establish that you didn’t have that you did everything within FMCSA and industry standards to train and supervise your driver.

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Peyton Inge: And, you know, in terms of being able to prove FMCSA, DOT compliance. Just make sure your record record keeping is above board.

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Peyton Inge: And that you’re doing the best you can and maybe talk to a lawyer or, you know, tend to compensate. Whatever you can do to make sure that you’re keeping your records as best as possible.

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Peyton Inge: One of the types of things that I see that occasionally concern me and they really surprised me is when I’ve got somebody that is going above and beyond. They really are trying to help.

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Peyton Inge: But they put something in the drivers file that they thought was helpful or they maybe they put something in the training or the policy they thought was helpful.

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Peyton Inge: But they didn’t phrase it right. And I’ll just use a quick example here, you know, I saw something in the other day that said, hey, we are the most unsafe carrier out there is a very specialized field.

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Peyton Inge: The most unsafe carrier out there and I’m looking at the concerns the risk folks had. And when I look at these concerns in that field. It was, you know, a scratch trailer or

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Peyton Inge: A mirror or a stop sign because we couldn’t make the turn. I don’t think that’s a serious problem that’s and that’s part of doing business. But now I’ve got a training

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Peyton Inge: outline that says were the most dangerous carrier out there. And so if the plaintiff’s attorney ever ever sees it. I’m going to have to go in and clean that up and it’s not that the carriers unsafe at all. It’s actually in my mind. One of the safer carriers I have ever seen.

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Peyton Inge: But it’s going to be hard to explain to a jury how my opinion is accurate when the safety manager saying we’re one of the most dangerous or most unsafe so

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Peyton Inge: We got to think very carefully about what we put in writing and how we phrase we want to be proactive. Hey guys, we can do this. And this is what we’d like to do. We don’t want to say, hey, you screwed up.

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Peyton Inge: We’re all screaming. We don’t want to phrase it like that. So it’s a delicate balance.

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Peyton Inge: So let’s see here. Let’s go and go to next slide.

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Peyton Inge: Okay, so these are some examples of the types of discovery requests that we see. And you know what we’re saying is, a lot of the plaintiffs attorneys, particularly the bigger ones.

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Peyton Inge: They share their discovery requests. And so we’re seeing recently anyway. A lot of nearly identical requests and this particular example, it was number 45 out of 109 requests I got. Now

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Peyton Inge: between us. We can sit there and identify you know you, we could all ask the questions we needed to see in discovery and it would be not maybe 9 or 10 questions because that’s all we need.

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Peyton Inge: But here, folks are going on a fishing expedition looking for anything under the sun. So they can try and develop a case they’re looking for that document that says we’re unsafe.

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Peyton Inge: Or the driver look like he was high, that time or a text message. Somebody put the driver. So they’re looking for that smoking gun and even though it’s irrelevant if you give it to them and don’t fight them here where it’s where it’s worth fighting, you’re going to wind up having to

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Peyton Inge: Try more larger case. But as, as an example, this one is looking for all training notes.

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Peyton Inge: Certificates and attendance list relative, the defendant driver, regardless of the date issued or originator of such certificates.

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Peyton Inge: So something like this, I would say, guys. I’ll give you are all the training I have on a driver.

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Peyton Inge: Everything that I have. I’m going to go ahead and give you, but I’m going to object that you shouldn’t be asking for something that old or in an unlimited date.

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Peyton Inge: But if I have it. I’m going to go ahead and produce it, but I’m going to preserve my objection, but I don’t want to go down and argue with the judge on it. So I’m going to go ahead and produce it. Because at the end of the day.

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Peyton Inge: 99 times out of 100 it’s going to make me or make the company, you look better to so be able to just show the training. This is where your program has been very helpful.

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Peyton Inge: So number 46 on this one gets a little bit broader and they’re asking for copies of all past employment inquiries sent to and/or secured from former employer

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Peyton Inge: along with all responses, now ordinarily I would expect to see this in a DQ file. So I don’t think this is particularly objectionable. And I would go ahead and just produce

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Peyton Inge: These you know the the DQ file and all of our in MVR checks that we did early on the drivers hired

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Peyton Inge: But you can imagine if they’re asking these types of questions that number 45 and 46 what else they have to be asking if they have all these other extraneous request no number 47 gets a little broader.

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Peyton Inge: Copies of all inquiries and answers from any organization in reference to the license record of traffic violations and actions directed to

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Peyton Inge: receive an offense or other organizations on behalf of the defendants. So this one is asking for any and all tickets, inquiries, anything along those lines in an unlimited date.

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Peyton Inge: And this is where I would start to push back a little bit and I would restrict the question, I would restrict my, I would object. And I would restrict my answer to the last three years, because that’s all that really matters from an insurance or a DOT perspective.

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Peyton Inge: In most instances, so I’d say guys look this is what I’m going to give you, and I would try and avoid a fight on it because it’s not worth. It’s probably not worth arguing with a judge on it.

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Peyton Inge: But at the same time, you don’t want to. You don’t want to cough up 18 years worth records because they’re completely irrelevant whether or not that driver was licensed and qualified on the question. On number 48 is another example.

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Peyton Inge: All road test drivers qualification cards.

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Peyton Inge: And it goes on, you know, this one in my mind is even broader because it doesn’t identify just this driver there now asking if you read it the way they wrote it.

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Peyton Inge: They’re asking for written tests for all your drivers and so you definitely want to object to that give them just what this driver had DOT medical card and things like that.

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Peyton Inge: And then was there 49 on this one. Yeah. All annual reviews file servers really documents found a driver qualification. So something like this. I’m not going to push back on, but

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Peyton Inge: You know they’re they’re looking for any annual reviews, final views. And my guess is, is you guys most most companies aren’t going to have an actual summary or for a specific driver.

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Peyton Inge: Some companies will but you know if you’ve got it produce it as long as it doesn’t hurt you. And then if it does hurt you. Make sure your you think something is concerning in there. Make sure you

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Peyton Inge: Pointed out to your attorney. So he or she knows to consider whether or not it should be produced. And if it’s even relevant to the claims. THAT’S ORDINARILY how I would fight it. So, look, this has nothing to do with the price of tea in China. Why do we need to produce it judge?

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Peyton Inge: Okay. And so, next slide please.

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Peyton Inge: Okay so training and this is really, really key to getting getting cases thrown out early on. I want to be able to knock out the direct claims against the company. Training, how do I prove it?

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Peyton Inge: That comes down to if you’re doing training, make sure that you’ve got driver attendance you keeping records of what was shown. If you’re showing a video who attended, that kind of thing. Put it in the drivers file. Make sure you record it.

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Peyton Inge: Number two, and this is one of the most overlooked and easily most easy mistakes you can have.

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Peyton Inge: Is if you have a written policy and I see this in companies that either.

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Peyton Inge: Somebody went in and they had a policy before they got bought out or they downloaded the policy off the internet or maybe it was just something somebody felt was a good idea because it sounded good 30 years ago.

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Peyton Inge: But they have a policy. So if you’re going to have a written policy, you have to follow it every time.

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Peyton Inge: And if you have written policy and you don’t follow it every time you can bet your last dollar that will be the instance where your driver gets in a wreck and plaintiff’s attorney goes

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Peyton Inge: pulls your policy out and says, look, this is your policy you notice important because it’s in your written handbook and yet you fail to follow judge this is evidence and negligence and the company’s got to stay in and jury. I want my money.

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Peyton Inge: So he likes to be you gotta be able to prove that your, your policies were adhered too. And if you don’t follow your policies deleted nine times out of 10, you don’t need it anyway.

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Peyton Inge: Number three. If you’ve gotten this as something we saw real real important last couple years.

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Peyton Inge: You had a driver shortage. So you had people that were hiring drivers and they might not have necessarily really wanted to hire

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Peyton Inge: But we saw a lot of instances where drivers are getting wrecks and they were maybe good drivers, but for whatever reason they they shouldn’t have been hired under the company’s policy and

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Peyton Inge: You know, now we’re trying to explain how this driver who should have been driving according your policy actually was entrusted with truck.

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Peyton Inge: So it makes a case, it’s worth nothing worth more. And this is something that you know you’re, you need to make your

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Peyton Inge: Attorney aware of on day one. If you have a driver that you think should shouldn’t have been hired or something like that. Don’t put it in writing, but go even though it’s privileged

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Peyton Inge: Just call your attorney said, hey, look, this is our policy we hired him anyway he’s been a fantastic driver for us.

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Peyton Inge: But at the same time, we had this old antiquated policy, we didn’t really follow.

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Peyton Inge: And just make sure they start working on a workaround for that. And that’s easy to do. But you don’t want to get blindsided on a on a company deposition, where the plaintiff’s attorney pulls it out, your attorney has no idea what’s going on.

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Peyton Inge: Yeah. Okay. So next slide please.

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Peyton Inge: Okay, this gets back to kind of one of the easiest ways

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Peyton Inge: To defend yourself as a company in a wreck, and this is also one of the biggest points of contention when I’m talking to drivers are used to be a point of contention. Now it’s becoming much more popular, but when I stopped at a truck stop and visiting with drivers.

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Peyton Inge: A lot of them hate the idea of cameras or at least they used to hate the idea of cameras. But more and more. I’m getting

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Peyton Inge: stories from people that show up that can tell you how the cameras save their tail and I had a case couple years ago where an individual call me and say hey Peyton I know my risk manager told me to call you.

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Peyton Inge: And you’re never going to believe me. Well, you know, I’ve heard a lot of things. Tell me.

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Peyton Inge: Well, I’m cruising through. It was a bad area cruising through a bad area and carpool in front of me slowed me down car pulled up on my left didn’t have any where to go.

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Peyton Inge: And sure enough, the car in front of stopped a rear ended him they pulled over a bunch more people jumped out of the car on the left, jumped in the car in front. Everybody went to the hospital and

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Peyton Inge: Now, I think they’re going to sue us. So sure enough they did sue and but you know he fortunately had just stopped and

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Peyton Inge: TA, I think, and had bought himself a camera two days before and he hadn’t told anybody about it. It wasn’t company policy, but he had a camera

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Peyton Inge: there to prove his story. So in that case, I waited until they submitted sworn statements, went down to depose them.

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Peyton Inge: And then I sent a copy of the video to the district attorney and the whole case went away and we didn’t do that secure a legal advantage, but at the same time, even in that particular venue, they didn’t care. They didn’t want

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Peyton Inge: People lying under oath.

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Peyton Inge: And about without that camera we never would have believed it. How are we never would have been able to prove it, because it’s it’s our word against four or five other people in that instance

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Peyton Inge: But you see that a lot so practical considerations are. I always recommend a forward facing camera if you trust your drivers and if you trust your drivers.

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Peyton Inge: You know,

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Peyton Inge: The camera will save your tail. This is an example from a case that we had a few years ago.

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Peyton Inge: And I’ll tell you up front. This camera, had we not had it that case would have been worth a far, far larger amount of money. But here, this we were able to prove that we were in the right

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Peyton Inge: As we approach this intersection. So we can go ahead and roll it through first time. So here are truckers approaching an intersection. You can’t tell here, but there’s intersection coming up.

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Peyton Inge: You’re going to see some cars passing in front of us moving left to right and then as we enter the intersection

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Peyton Inge: The light turns red. But

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Peyton Inge: With this camera, we were able to do a couple things. One, we were able to prove that we had right away when we enter the intersection. Because, at a minimum, that light was yellow, if not green. It’s hard to tell based on the reflected light from that.

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Peyton Inge: the traffic light. But we can then prove that it turned yellow after we cross the line, we’ve established control the intersection. And yet, the only turn left in front of us anyway.

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Peyton Inge: Now this particular incident resulted in a fatality, but without that camera. It had been a, he said she said scenario where we had

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Peyton Inge: someone that was deceased and no real liability arguments, other than someone’s you know someone’s recollection

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Peyton Inge: And that’s very, very dangerous, but here we are will show that we were in the right and what we did early on was called the police officer.

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Peyton Inge: And send him a link to that video, he was able to watch it, conclude that we had the right of way that the young lady was at fault. And so he issued and appropriate action report.

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Peyton Inge: That

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Peyton Inge: sided with us and faulty of the driver, and as a result we save probably millions of dollars on that claim or at least hundreds of thousands of dollars on that one.

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Peyton Inge: So I’m a huge proponent of cameras. I think they save you a lot of money. And I think if you pitch it to your driver or your drivers correctly that

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Peyton Inge: They will appreciate it. Because like said if you trust your drivers and you’ve got to say fleet, they’ll save you money. I don’t like the inward facing cameras. I don’t think they offer you anything useful.

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Peyton Inge: But there’s obviously a time and a place in certain instances that you might want it.

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Peyton Inge: Next slide please.

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Peyton Inge: Okay accident reconstruction. This goes back to us, collecting the ammunition that we need to defend the case.

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Peyton Inge: Accident reconstruction is sounds simple, but

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Peyton Inge: It’s very different. A lot of people think that the police officer that went out and looked at the collision wrote the police report as an accident reconstructions.

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Peyton Inge: The truth is, is in most cases, they’re not they’ve gone to basic police school. They may have experience investigating collisions, but they’re not

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Peyton Inge: They’re not allowed under most law and most state laws to talk about the mechanics of how those vehicles came to be.

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Peyton Inge: Where they are they’re able to talk about only what they saw, so they can talk about, hey. The truck was here. The car was there. This is what he said this is what she said.

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Peyton Inge: But they can’t talk about when the truck began to break how fast the truck was going who change lanes when other than what someone told them.

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Peyton Inge: They can’t make that conclusion. Now, a true accident reconstruction is ordinarily going to be certified by a number of different state or federal entities.

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Peyton Inge: And he or she is going to be able to go out there, conduct measurements, look at photographs, maybe use a drone and conduct some aerial surveillance.

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Peyton Inge: Things like that skid marks, they’re going to be able to recreate the mechanics of that accident now.

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Peyton Inge: A typical accident reconstruction is going to be, you know, five to $10,000 up front, but that is an expert in the field that may be your best avenue of proving the your driver was not at fault.

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Peyton Inge: And if I have a fatality or a serious injury or I’m in a dangerous venue 99 times out of 100 I will recommend that we go ahead and do that.

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Peyton Inge: And retain that an actual reconstruction and get and get them out there and that way they there.

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Peyton Inge: They’re going to be in the best position to corroborate your driver’s side of the story.

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Peyton Inge: And one of the things you can do to help them is to make sure your driver to remind the driver take photographs. If it’s safe to do so, depicting any skid marks. He sees final resting positions and damage.

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Peyton Inge: So when do I spend the money you spend the money. If you have a bad venue, or if you have a serious

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Peyton Inge: Serious collision or something, or even worried about if somebody’s life flighted you might think about it.

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Peyton Inge: An accident reconstruction will ordinarily save you money, long term, particularly if you think if you believe your driver when he or she tells you that

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Peyton Inge: This car cut me off or this car was traveling at a high rate of speed and hit me or ricocheted this and that that actually reconstructions to the only way you can actually prove that

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Peyton Inge: Down the road. So I highly recommend them in any serious collision, because the information that you can get. And in some cases, even the video that they can recreate

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Peyton Inge: And this saved us million plus couple years ago and a bad venue. I had a I had a young lady drive into the back of the truck at four o’clock in the morning, she was tired, she was texting. She was on she she was late for work, but she died in the collision. And the argument was, well,

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Peyton Inge: The back of the truck didn’t have the reflective tape to DOT required when we did. It was just dirty.

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Peyton Inge: And the argument was will look we if the tape have been clean, she’s seen it. So what we did was we actually went out with an actual reconstruction. So we were able to demonstrate with that young lady.

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Peyton Inge: Even if she wasn’t paying attention, up to three and a half seconds for the question. She still could have moved into the left lane and avoided it

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Peyton Inge: And we were also able to do a recreation video where we show went out there at the exact same time Jackson cloud weather conditions and had she been paying attention sheet have seen the lights on that truck.

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Peyton Inge: For well over a mile and there really was no other explanation for how that collision occurred, except she wasn’t paying attention.

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Peyton Inge: And while tragic. It wasn’t our drivers fault and it wasn’t a company’s fault.

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Peyton Inge: So those are just some of the practical considerations and some of the best ways I know to avoid a nuclear verdict is fight and fight the cases aggressively early on, get the company out summary judgment. Get as many claims out on the summary judgment as you can.

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Peyton Inge: Use it as an opportunity to educate the judge. Don’t waste your ammunition fighting over stupid discovery disputes, if you can avoid it, and then get an accident reconstruction is out there. If there’s any question at all as to what happened.

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Peyton Inge: And I think that’s my last slide.

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Peyton Inge: Oh, one more. All right, so we’ve kind of been through this but practice considerations make sure if I’m coming in as National Council for a company

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Peyton Inge: I want to hire somebody that the judge sees on a on a reasonably frequent basis. I want to hire because I don’t want to be the Dallas guy coming in because the judge doesn’t know me.

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Peyton Inge: I might take the you know the upper hand or the largest share of the work on the briefing and the arguments if it goes to trial, but

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Peyton Inge: End of the day for day to day stuff I want somebody, the judge knows this discussing the case in front of him or her away. I’m not the outside of walking in. So hire somebody, the judge knows and respects to do the daily stuff.

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Peyton Inge: If you’ve got a fatality. You need to probably get an accident reconstructions to you to think about setting a little bit higher reserves and how to aggressively defend this case. And if you don’t have a liability defense or a couple other options there to

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Peyton Inge: Did your driver fail a drug screen, if you did, you know, as quick as possible. And then again, coming back to make sure you save your

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Peyton Inge: Save your data. Save your training, your logs and then get somebody out there to record

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Peyton Inge: the physical evidence at the scene and reach the conclusions and they can accurately tell you what actually happened. And if your drivers lying or wrong, you need to know if the driver is 100% right. You also need to know that. And that will save you an immense amount of money, long term.

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Peyton Inge: Okay, next slide please.

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Peyton Inge: That is the last one another shot of old Pete sitting out there in Winchester, West Virginia.

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Peyton Inge: Mark. Thanks for having me. Any questions, anything I missed?

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Mark Rhea: Well, I’m sure we’ve, we’ve got a little bit more to cover here. The bottom line is nuclear verdicts are real.

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Mark Rhea: Up 900% since since 2000. There are some ways to avoid or prepare yourself.

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Mark Rhea: Obviously this post accident procedure issue is huge. What do I do. Can I get that it to the drivers and train them and document that and, you know, giving a statement at the scene.

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Mark Rhea: Drug and Alcohol tests go on and on and on, but we are

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Mark Rhea: Need to keep rolling here. So our next slide is yes. Well, I want to make sure that everyone listening has the opportunity to take Jay up on his offer for a 30 day

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Mark Rhea: demo, free trial.

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Mark Rhea: Next slide, please. I think there’s a poll, you can take that’s myself. Let’s keep going. Next slide please. The poll question.

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Mark Rhea: Poll question.

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Mark Rhea: Okay. Um, if you’d like a free demo.

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Mark Rhea: On being able to produce these documents in case you to prevent that nuclear verdict. Just, just click on the yes if you’d like to talk to Peyton individually about a concern you’ve got or a case that you’ve got. You can press yes that will go directly to Peyton.

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Mark Rhea: He’ll contact you.

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Mark Rhea: We do have a 30 day free trial on the workforce solutions online training and a free demo, if you’ll just press the Yes button, we’ll get right back with you on that.

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Mark Rhea: On

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Mark Rhea: One of the questions that we’ve got here. Let me just pull them.

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Mark Rhea: Is there an after accident checklist that I can send my drivers.

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Peyton Inge: So,

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Peyton Inge: That you can make a checklist and I’m certainly happy to help somebody to do that or point them in the right direction, but again, that gets back to the policy.

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Peyton Inge: And if you’re going to have a policy. It’s got to be followed every time. And if it’s not, the question becomes, why not

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Peyton Inge: The truth is, is accidents tend to be a relatively fluid situation. So I tend to address that with people.

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Peyton Inge: You know up front is hey guys, look, this is our general strategy. Let’s try and do it, but I really don’t like a boilerplate. Hey, bam, bam, bam. This is what we have to do every time I think it creates more more potential for harm than it helps.

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Peyton Inge: Yeah.

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Mark Rhea: Yeah, I would just add to that, we do have a

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Mark Rhea: content that’s immediately available if you want to participate in the free trial and you can view the content we have, and certainly work with you.

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Mark Rhea: To customize your checklist. But the answer needs to be yes. You need a package a crash packet. You don’t want to press you know post pictures on social media. I’ve seen that blow up on

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Mark Rhea: And discuss a

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Mark Rhea: Accident on social media, that’s definitely something you don’t want to get into. We are really running out of time. And I don’t want to take up

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Mark Rhea: Everybody’s full afternoon. So I’m going to go ahead and now. Next week we will have a very interesting webinar on rapid air loss, tire

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Mark Rhea: blow outs, how to prevent that, how to react in the event you are involved in a blowout out the summertime. You seen all the alligators on the side of the road cars are blowing out. We’ve got a lot of things we can do with that Peyton’s info is available right there and

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Mark Rhea: If there’s no other question. Here’s one of the question is a post accident drug test required by DOT if the driver is issued a warning citation.

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Peyton Inge: I would say no, I would say no. Yes.

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Mark Rhea: Just a citation a full citation would trigger a DOT drug screen, though. Correct.

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Peyton Inge: Correct. Yeah, I just I yeah absolutely if you’ve got an actual citation. And yes, but just a warning. Absolutely not.

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Mark Rhea: Okay, well I’m going to shut her down. Thank you very much for listening in and look forward to next week. Peyton. Thank you very much, and good luck with those summary judgments.

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Peyton Inge: Thanks for having us.

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Mark Rhea: Thank you, sir.