TRUCKING LITIGATION CRISIS—FUELED BY MISFOCUS
Applying the Correct Focus as a Company...and an Industry
The trucking litigation crisis is a product of failed focus. A failed focus at both a company and an industry level.
We compromise maximum safety and reduced risk by diverting our focus from the ongoing, infinite goals. Instead, we undermine our efforts by finite focus on potential discovery in litigation.
A recent book by Simon Synek explores the limitations and weaknesses of a finite focus and the empowerment of a focus that is infinite. It is founded on the academic writing NYU James P. Carse who developed this in the 80’s.
The principle is that both focuses are needed. However, the application of each is for specific circumstances. It is where the wrong form of focus is applied that the potential for success is undermined.
THE DANGER OF MISFOCUS
There are two types of focus that can be applied-finite and infinite focus. They are applicable to distinct applications. A correct use of the proper focus will determine your level of success…or failure.
Finite focus applies to challenges that have a definite beginning and end. Challenges with identifiable participants. These challenges end with a defined outcome-a winner and loser.
In such a situation, the surprise is the ultimate vulnerability. This is because of the potential impact of the unexpected in this finite contest.
Think of a trucking lawsuit. A definite beginning with the occurrence of the accident. A definite end with the verdict or, 90% of the time, settlement.
The plaintiff, the company, and their lawyers are the identifiable participants. There is a winner and a loser.
And the impact of surprise? I spend hours in preparing the case to ensure that there is no surprise in the process. You have one chance in a trial. You cannot afford to be vulnerable to the unknown or unexpected.
In short, a finite focus for a finite challenge. Defined goals and participants with a finite end.
However, for challenges that are ongoing, unlimited in time, undefined in participants, and without a discernible outcome, a finite focus is a prescription for failure. This focus will increase vulnerability and exposure.
Instead, an infinite focus is required for long-term success and existential survival. It a focus on achieving a “just cause” for which your company exists, and which ensures its ongoing survival. The goal may not ever be reached but is the impetus for daily actions and a consistent commitment.
An infinite focus has a goal of the company surviving and thriving rather than a distinct victory over a defined party. It focuses on achieving a “just cause” measured by the aspirations of the entity rather than against a specific foe.
It is not “how do we beat X” but “how can we achieve the “just cause” that we are pursuing”. In trucking, such a “just cause” is to maximize safety and minimize risk
In contrast, the pursuit of a “just cause” with an infinite focus is weakened, if not undermined, by the intrusion of a finite focus. It is a distraction. A potentially fatal diversion.
The purpose of an infinite focus is the prosperous continuation of the entity. Failure is bankruptcy or, worse, complete closure. In short, an infinite focus is existential.
FINITE, INFINITE, AND TRUCKING LITIGATION
So, what does this have to do with trucking litigation?
Our best defense is an infinite focus to achieve the “just cause” of maximum safety and minimal risk. The defense is undermined by the distraction of a finite focus. This is both on a company and an industry basis.
INFINITE FOCUS FOR THE DEFENSE OF THE TRUCKING COMPANY
Companies are being hit with excessive verdicts and settlements because of their misfocus. Because they have undermined their best defense, the continuous pursuit of a “just cause”, by the finite focus on discovery in potential litigation.
The “just cause” of a trucking company is a constant culture of safety. It is driven by the infinite focus on minimizing accidents and risk.
Infinite focus on the “just cause” of safety by a trucking company is the billboard lawyer’s worst nightmare. They prey upon “systemic failures”. The absence of systemic deficiencies deprives plaintiffs of the accelerant for excessive verdicts.
Just read their paybook, “The Reptile Theory”. It says that the strategy won’t work if it was just an accident and there are no systemic failures to correct that would have prevented the accident.
It is the failure of the company to recognize and address the systemic safety failures that fuels their argument. “The only way the company will fix it is if you hit them with a large verdict.”
Remember-rarely does the facts of the accident itself detonate a nuclear verdict. It is the company policy and procedures failures that detonate the verdict.
Unfortunately, companies’ infinite focus is being undermined, resulting in exposure to plaintiff attacks. This is done by fear or “legal advice” to forgo total pursuit of the “just cause”, a strategic long-term perspective, for a finite focus on what might be discoverable in litigation.
For example, companies forgo the collection or analysis of data, or even obtaining technology, for fear it might aid their litigation adversaries. “Make them work for it” is the company mentality.
Or “if we don’t have it, it can’t be used against us.” A finite focus to the detriment of pursuit of the “just cause” and, ultimately, the best defense.
This is a prescription for horrendous results. First, it is founded on the fallacy that the billboard lawyers won’t find out the data exists.
Wrong. Plaintiff trucking attorneys have seminars on what data is generated by trucking and how to get it. They hire experts to educate them and obtain it.
Second, they will seek to exploit the failure to procure available technology, particularly if it would have avoided the specific accident. And the cost you saved will be compared to ______ (fill in a discretionary expense that the company).
Third, plaintiffs have weaponized this practice by trucking companies, including post-accident tactics. In a recent “nuclear verdict”, a major argument by the plaintiff attorney is that the company’s safety department failed to learn from this accident because the information was hidden behind “the black curtain” of its legal department. The company prioritized litigation over safety. And you, jury, need to send them a message.
Finite focus has spawned intentional ignorance. Intentional ignorance is not a defense. It is a detonator.
Even if the problem is not completely addressed, we can undermine plaintiffs’ argument by showing we have, with our infinite focus, recognized it and have begun the process to correct it. Alternatively, that we have considered the potential problem and have a rational reason for not acting.
Either way, “No message needed, jurors. We know. We are on it.”
An infinite focus with a constant commitment to safety. Data is identified, analyzed, managed, and enforced. Manual and policies are to achieve maximum compliance and conveyed in a manner for maximum comprehension.
Proactive self-analysis to identify and correct potential safety and risk exposures are the best defense. You can develop your rationale for your actions or inactions before the accident. Intentional ignorance not only exposes your deficiencies but allows the billboard lawyers to develop your narrative with their spin.
The infinite focus on the long-term “just cause” of a prioritized safety culture is its best defense. A finite focus to achieve short term tactical benefits in discovery to the compromise of the long-term can be fatal.
FINITE, INFINITE, AND THE TRUCKING INDUSTRY
We face a similar crisis of focus as an industry. While understandably concerned with and striving for legislative achievements with a finite focus, we lack the infinite focus of public success.
Tort reform is a necessary goal. We are exposed by unfair laws. We need genuine reform.
There are several ways to achieve this. Our current process is by a finite focus on legislative achievement. Our defined goal-fair laws. Defined opponent-billboard lawyers. Definition of victory-passage of legislation.
While we have achieved some successes, these have been the limited product of the political legislative make up of several specific states. Yet, even in states with overwhelming political alinement with our desired outcomes (super-majority + governor), we cannot succeed because the trial lawyers control a choke point in the process.
The billboard practitioners reinvest their profits for political power. We have not, and in many cases cannot, match their monetary contributions.
However, they lack what we have and what politicians cannot ignore—numbers. Votes.
There are 3.49 million truck drivers. There are 7.99 million people employed throughout the economy in jobs that relate to trucking activity. Numbers. Votes.
We as an industry need the infinite focus of translating these numbers into political power that cannot be ignored.
To do so, we need to educate and mobilize.
Educate. Educate the public that we are the lifeblood of the country. When others sheltered in place during COVID, we moved the medicine and kept the shelves stocked. We are the companies that create jobs and support their community. Our drivers are your neighbors and friends.
Conversely, educate our industry and the public about those who threaten trucking. Who prey upon our industry for personal profit. Who take 40% from the injured and widowed. Who coordinate with doctors for their mutual reward. Who contribute to the very judges who decide their cases.
Educate our people that this is a threat to their industry, their jobs, and the welfare of their families. Educate the public as to what those plaintiff attorneys really are.
Mobilize. Vote. Vote for those who respect our business and protect our industry. And spread the word to family and friends who will do the same. And who will serve on juries, knowing what the reality is.
It has never been easier that today to educate and mobilize. We can get out the word through social media and on the web.
Doubtful? If social media ignited by the death of a street vendor could topple multiple dictators with political and military power in the “Arab Spring”, can’t we throttle the control of a bunch of billboard lawyers who seek to prey upon us for easy money?
A finite focus is not only proper but needed for specific challenges such as a specific claim. But to compromise the infinite focus on a “just cause” for fear of possible discovery and for intentional ignorance only fuels the crisis in which we find ourselves.