Profits over safety: how driver training can help, or hurt, in the courtroom

October 30, 2023

When fleets have had to defend themselves in a lawsuit, we've all heard about the importance of documenting driver training activities to prove that they happened. But protecting yourself in court takes more than just having the training documented. In a recent webinar, CarriersEdge sat down with attorney Kevin Mulvaney, partner at Wilson Elser to talk about some of the issues facing trucking companies when those companies are facing legal action. While this wasn’t actual legal advice (you should consult with your own counsel for that), Mulvaney offered some reflections and insights on what carriers can do with their training programs to make their own lawyer's job a little easier.

Where companies fall down

Here’s one of the most important things you need to know: if one of your drivers has an accident and you have to go to court, the plaintiff’s attorney is going to go through all of your training and safety programs and policies. They’re going to try to construct a story about how you are negligent, or you don’t take safety seriously—basically to scare a jury into believing that your company is a danger to everyone and that the accident was just waiting to happen. Regardless of whether that’s an accurate reflection of how you operate, the plaintiff’s lawyer is going to look for things in your training programs and policies in order to weave that story anyway.

Also, it’s worth noting that being a small company won’t protect you. As Mulvaney points out, “The plaintiff’s attorney is not going to care if you are that small”. Even if there are only a few people in the office, all wearing multiple hats, gaps in programs and policies can lead to significant problems when the plaintiff’s attorney starts digging through things.

What sorts of things might they jump on?

Not following your own policy
You have a policy written down that looks good, but then fail to actually follow it. Maybe what the policy lays out is too much for what a company your size can actually deliver— imagine a 10-truck company using a policy that originated with a 200-truck company. There would just be so much more in there than the small fleet could ever act on. Or maybe it’s the right policy for your company but you don’t have the right people in place to actually sustain it. Whatever the reason, don’t over-promise and then under-deliver when it comes to safety and training policies. “It is very difficult to defend a company that created its own policy and then failed to adhere to them.,” Mulvaney says. If you can’t reasonably follow up with every critical event or training activity within 2 days of its occurrence, don’t say in your policy that you will. If you need a week to complete that, spell it out in the policy.

Minimal training
You gave your drivers training during orientation, and you really drove home the idea of operating safely, but after 3 or 6 months the training stops. That’s a bad idea generally, but in a legal context, it can really haunt you. Even if you have a driver with a decade- long safe driving record, if that driver has an accident and the opposing counsel can demonstrate that the company didn’t bother doing any refresher training or keeping the driver up to date on changes in the industry, the story they are going to tell about you is that your priorities were in the wrong place—you were concerned with profits over safety.

Some of the people, some of the time
If you have an ongoing training program but don’t include everyone in it, that’s also going to look bad. If you skipped some people, or cherry-picked who got training— especially if you did that to cut costs—that makes it very easy for the plaintiff’s attorney to argue that you put profits over safety. The story will be that if you really did value safety you would have trained everyone equally.

Using free/generic training
And speaking of cutting costs, using free training doesn’t help either. If your training consists of a bunch of videos you got for free, opposing counsel will use the "profits over safety” theme here as well—they’re going to try and tell a story about how you are just ‘checking a box’ that something was done, rather than meaningfully advancing the skills of your drivers to make them safer.

What to do instead

If you want to figure out if your training system is as defendable as your lawyer would like, try working backwards from an imaginary civil suit. If a plaintiff’s lawyer is going to try and paint you as not taking safety seriously, how can your approach to your training program help counter that kind of narrative?

Invest in something
Training doesn’t have to cost the farm, but an investment can help show that you take safety seriously enough to spend money on it. If that investment includes access for everyone, and you can show that you use it regularly, you’re off to a good start.
Automating can make it manageable
Using that training program doesn’t have to mean a ton of extra work. The right training platform will help you streamline and automate assignment and reporting processes so you can stay on top of them more easily.
No diving in the shallow end
If a driver told you they could do a pre-trip inspection in 5 minutes, you’d know they weren’t doing it properly. If your training lasts that long, a plaintiff’s attorney is going to jump on it for exactly the same reason. If you want to demonstrate that you value safety over profits, look for training programs that reflect that seriousness and depth. Programs should include:
- A deep dive into the content, paired with real-world context so your drivers get a complete picture of the material and practical tips on how to apply it.
- Rigorous testing at the end of each course. If people can guess answers and pass the test, it’s not hard enough. Challenging tests that require people to demonstrate a thorough understanding of the material will stand up to scrutiny better.
- Detailed, granular tracking and reporting of driver activities and results, so you can see where they have gaps and know what to focus on.
Balance online and offline
Online training can be a big help in keeping drivers trained, but it can’t completely replace in-person activities in the yard or on the road. Track those practical activities and classroom events alongside the online efforts, so there’s a complete picture of everything you did to improve that driver’s safety performance.
Train as a process, not an event
Don’t think of training your drivers as something that is completed after the first 3 months. Their initial training should be followed by longer-term, ongoing training to keep their skills sharp and ensure that they are up to date on new regulations or technology. Also make a point of reviewing the results regularly to see where further assistance or coaching is warranted as well as other ways you can build out training and learning opportunities.
Benchmark
Even though you are trying to develop a program that is manageable for the size of your business, how do you know you are doing enough? Have an expert look at your program and evaluate it against what’s being done at other fleets that are a similar size/configuration to yours—because you don’t want to be that one fleet on the block doing less than everyone else. Worried about the cost of hiring a consultant? It isn’t nearly as expensive as losing a lawsuit.

For all the things you need to do to keep your business running, being a legal expert isn’t one of them—that’s your lawyer’s job. But there are ways of running your business—particularly when it comes to training—that can make it easier for them to defend you if you’re faced with a court case. Even if you’re a small carrier, you can leverage training technology to develop a program that is comprehensive but manageable for your fleet size. And having that kind of automated training and detailed reporting can help your legal representative push back when a plaintiff’s lawyer suggests that your priorities are in the wrong place.

Kevin Mulvaney is a partner at the law firm Wilson Elser.