The previous installment explained why so many innocent bus and coach manufacturers, and their suppliers, get sucked into lawsuits in which they do not belong, and where they did absolutely nothing wrong. And it explained how the reorganization of relationships among these innocent victims, their insurance carriers, the carriers’ attorneys, and their collective expert witnesses could form the basis for a new structure to “right the ship.”
Of course, restructuring these relationships is just the start. There are still a number of things the new structure must do – as well as one thing is should rarely do.
Goals of the New Structure
The central goals of the new structure are fairly straightforward:
- The victims must work together
- A structure must remain in place until the last motorcoach on the road without seatbelts is mothballed.
- The effort of defending each OEM and supplier must further its commercial agenda as well as its legal agenda
- By rarely if ever settling a case, the message would be sent to plaintiffs’ attorneys that filing against a member of the new structure – effectively a new Alliance — will be both fruitless and costly.
This last goal would effectively “reverse the spiral.” But this goal just became even more critical with the FMCSA’s recent rulemaking mandating three-point seatbelts on all new motorcoaches beginning in November, 2016.
Many or most pre-2009 motorcoaches are likely to be on the road for a good 20 or more years, in some capacity. Yet the oldest and least-street-worthy are likely to be operated by those small charter operators mostly likely to cause catastrophic motorcoach accidents. Sustaining the much-needed Alliance throughout this entire generation of old, non-seatbelt-equipped motorcoaches involves a considerable number of constraints. High among them is the fact that the best-qualified experts will not likely be active, if even available, near the end of this era. So inherently, this Alliance must include an effort to mentor a hand-picked group of “40-something” junior experts who can grow into their eventual leadership roles by participating, increasingly, in the many tasks involved in furthering the Alliance’s goals in general, and assisting its members in the string of lawsuits in which they are almost certain to be periodically ensnared during the next 20 years.
Rounding out the Technical Team
While the nation’s finest expert witnesses may be nearing the end of their careers, this is not true of attorneys, since few of any age have the level of expertise in public transportation that the Alliance’s Senior Experts do. Thus mentoring a core of junior attorneys will not be necessary. Instead, the Alliance could simply choose the best and brightest from among the millions’ of “40-something” attorneys. This reality only simplifies the task of staffing the Alliance with the best attorneys to a certain point: (a) most attorneys practice in only a single State, (b) catastrophic accidents typically “pull in” multiple innocent codefendants (and in some states, one attorney may not be able to represent multiple codefendants), and (c) it would be naïve to expect a single attorney in any given State to develop the level of expertise needed to master the array of disciplines needed, as noted below.
Because these same attorneys will be involved for the balance of their careers, the cost of training them would be amortized over their generation of service to the Alliance. In case one is unaware, the costs of not training this large core of attorneys would be far greater since, as experience has shown us, most attorneys “learn as they go.” The ineffectiveness of this approach in defending innocent catastrophic accident defendants has been well-demonstrated by the outrageous settlements that have resulted. This bumbling approach may also help explain why insurance carriers have so little faith in them. Regardless, for the Alliance to be successful, its attorneys cannot continue to stumble along approaching the subject matter of these cases as beginners. Instead, they must be systematically schooled, beginning at the very start of the effort, by the Alliance’s team of Senior Experts.
The reason one or two attorneys per State will not be enough simply reflects the range and diversity of disciplines that each State’s team of attorneys must master in order to be effective. These disciplines include:
- Vehicle operations (including driver assignment, training, monitoring, scheduling and dispatching)
- Vehicle design, engineering and construction
- Operating dynamics, laws of motion and other principles of physics
- System design (time-and-space parameters governing efficiency and profits), operating dynamics and rate structures
- Product development (a product’s progression through design, engineering, prototype development, quality assurance, testing, certification, marketing, production of pilot orders, evaluation and sales)
- Accident reconstruction
- Seatbelts, seating systems and structures (e.g., seatback construction, anchorage strength and mass, etc.), including compartmentalization and containment
- Glazing and other occupant restraint elements
- Driver fatigue, circadian rhythms, shift-inversion and sleep-wakefulness cycles
- Tires (including retread technology)
- Buyer-seller dynamics, and the realities of supply and demand
- Regulations (FMCSA, NHTSA, ADA, FTA, FERPA, HIPAA, IDEA) and industry standards (SAE, CVSA, OSHA, etc.)
- Vehicle- and system-specific hardware and software (particularly scheduling and dispatcher software)
- Nutrition, Drugs and Alcohol
- Maintenance (including factors related to bus fires)
- Vehicle and passenger dynamics (rollover propensity, directional stability, skidding, ejection, rebounding, etc.)
- Vehicle operations and passenger handling (including boarding , alighting and securement)
- Medication, drugs and alcohol, treatment and therapy
Needless to say, most suppliers provide their products to not only motorcoach OEMs, but to manufacturers of schoolbuses, transit buses, taxis, and a host of modes constructed on van- or minibus chassis (i.e., body-on-chassis “conversions”). So while the initial efforts of the Alliance may focus on keeping unsafe operators, poor drivers and unsafe motorcoaches off the road altogether, keeping OEMs, converters and suppliers out of lawsuits involving those accidents will still remain a problem to some extent. Further, particularly as the same suppliers equip a range of vehicle types, it would make sense for the Alliance to cover all non-rail modes – which would naturally bring into the fold manufacturers of transit buses and schoolbuses, a handful of major conversion companies and chassis manufacturers, along with perhaps engine, transmission and axle manufacturers, tire manufacturers, and most importantly, seating and seatbelt manufacturers. This expansion is not a matter of mere theory: A major transmission manufacturer was recently drawn into a case involving a bus fire. To truly “reverse the spiral,” it must be reversed across all modal lines. Further, increasing the membership of the Alliance will not only decrease any one member’s costs, but will effect considerable economies of scale at both the attorney level and the expert level. This is because all modes share certain factors in common (e.g., laws of motion, driver health and alertness, supply and demand), while many others have most of the remaining factors in common.
Fortunately, training in all these areas can be consolidated significantly, for a number of reasons:
- Many of the nation’s leading technical experts engaged in forensic work (i.e. expert testimony) are among the nation’s leading experts in a number of these areas. Thus, it might require only eight to 10 senior experts to cover the 17 areas noted above. As a single example, I consider myself to be a top expert, and have been qualified as an expert, in motorcoach and other vehicle operations, driver fatigue, system design, operating dynamics and rate structures, seatbelts and seating systems, and Federal regulations. I have also opined on many other areas, including reconstruction, vehicle dynamics, motorcoach design and product development where I have significant expertise, but not at the level of excellence the Alliance should have at its helm of each discipline.
- With a consolidation of expertise into fewer than a dozen senior experts, the costs of communicating the base of knowledge to both the Alliance’s attorneys and its small cadre of junior experts would be still more cost-effective
- The same set of materials could be used to form each attorney’s and expert’s library.
- Many attorney training sessions could be consolidated, some of them sub-regionally, others in concert with legal conferences these attorneys would likely be attending anyway – or even at transportation conferences and trade shows to which they should occasionally be exposed.
- As time goes on, additional or “refresher” training would be assumed by the junior-level, “40-something” experts as they begin to “take over” when the senior-level experts retire (while working at lower rates as they “grow into” the senior positions toward which they will evolve).
- Because this same set of attorneys will remain actively involved for an entire generation, the costs of this training will be amortized over an extremely long period of time, and paid for solely by the savings from not foolishly settling lawsuits, often for small fortunes, when there is no need to.
Managing Constraints and Limiting Costs
As noted, one constraint that will incur considerable costs is the fact that attorneys generally practice only in a single State or two. So a multidisciplinary “team” of attorneys available in all 50 states (or most of them) could involve 200 to 250 attorneys. Even assuming that each one can be brought “up to speed” on his or her discipline(s) (see list above), it could easily take weeks of hard study, over an extended period of time, to morph a terrific “40-something” attorney used to doing cases in scores of areas into a specialist in two or three aspects of public transportation. Such attorneys need not be paid for their learning time: They will be rewarded for it by occasional opportunities to work on a costly case that usually proceeds all the way to trial – for the next 20 years. Further, through their knowledge working on cases in defense of Alliance members, these attorneys and their firms will very likely become magnets for engagement in other public transportation lawsuits (on both sides) that would not involve Alliance members. So the only genuine costs for their training would be associated with the handful of senior expert witnesses creating the curriculum, and responsible for bringing the nationwide network of attorneys up-to-speed.
Finding the best 200 to 250 “40-something” attorneys for this task would not be as daunting as it may at first seem. This is because each of the experts responsible for teaching them already knows many of the best candidates. I myself have always maintained a list of what I have termed “brilliant attorneys.” My somewhat short list only contains about 20 or so out of the 1000 or so whom I have worked with or against. But with some careful review of 20+ years of case materials, this group could be expanded to 30 or 40. Many of them are in the desirable age cohort. Fellow Alliance experts would likely have similar lists. Finally, the attorneys selected would likely know other brilliant attorneys in the right age bracket. The result of this effort would yield a cadre of our nation’s best and brightest young-middle-aged attorneys. They could likely be assembled in a matter of months, depending on the intensity of the effort, and the ease of meeting some of them in groups – especially if the effort is split up among the Alliance’s full team of Senior experts. Steeping them in the full range of knowledge in their chosen disciplines would follow logically, and the Alliance’s involvement in defending an actual lawsuit or two during this period could serve as a useful working model. Regardless, the reliance on young-middle-aged attorneys would relieve the need to form a junior team for them to mentor: This groups’ careers would likely last as long as the last motorcoach without seatbelts remains on the road – or until the “practical “need for their installation ceases to exist.
Regardless of the scale of the core task – collecting and teaching a nationwide network of attorneys, and selecting the best team of Senior and Junior technical experts with experience in providing expert testimony — it is important to note that whatever this effort costs, it will easily cost far less than the typical payout of one major defendant in a single catastrophic accident’s lawsuit.
The Structure of the Alliance
If there is to be a new structure, with the goal of codefendant-victims working together, it could be structured like a typical corporation:
- The clients (OEMs, converters and suppliers) would serve effectively as the Alliance’s Board of Directors
- The senior and junior expert witnesses would serve effectively as their senior advisors
- A subset of attorneys in each discipline could also serve as the Board’s senior advisors
Decisions about handling cases would be relatively easy, made by a Board committed to working together: Unless a case represented genuine exposure (i.e., the party was genuinely liable), the strategy would simply be to defend the case, and never settle for a dime. The same set of experts would effectively work on every case, assisting the Alliance’s same attorneys in the State where the case is venued. With the same experts involved in every case, they and those junior experts they are mentoring (and who might initially operate in support roles, or serve as experts on smaller cases) would become increasingly better with every successive case. So too would every attorney serving in the Alliance, since the results of every lawsuit could be shared with all the Alliance’s attorneys, and reviewing it would be part of their respective commitment to the project. (The junior experts could further grow into their roles partly by summarizing the case results for sharing with both attorneys and the Alliance’s Directors (i.e., Board Members).
Benefits and More Benefits
The most important benefits of this approach were already noted: Spending a fraction of the money otherwise lost in unjustified settlements to, instead, defend themselves in these lawsuits, and “Reversing the Spiral.” But there are other benefits not so hard to see. One of them is the economies of scale that would accrue from permitting a single batch of experts to serve in their respective roles for the entire spectrum of codefendants in a case in all 50 States. This is hardly a novel concept: The plaintiffs’ same experts testify against the entire batch of codefendants, although, as we have seen in previous installments, they often adjust their strategies and emphasis in response to which parties have already settled out of the case.
Another somewhat obvious benefit would be the instant availability of a small set of top-notch attorneys in each state already up-to-speed, with extensive expertise in their respective subject areas. The expert would merely have to explain the nuances of a particular new case to such attorneys. Unlike the common tug-of-war between genuine experts and attorneys (good and bad), the Alliance’s experts and attorneys will begin and continue their work as a team, with the same understanding and the same goals. But these goals would be the goals of the codefendants, not those of some insurance carrier.
Similarly, the clients or codefendants would make the final decisions about settling versus proceeding to trial – and were a carrier involved, it would be involved with the understanding that, in most cases, the case would absolutely proceed to trial, given the ultimate goal of “Reversing the Spiral.”
Another benefit of this arrangement is that the performance of the attorneys would not be evaluated simply by outsiders – insurance carriers. Instead, the work of the attorneys would be evaluated by both the team of technical experts who assisted them – experts intricately involved with every discovery request, every incident investigation, every document produced, every interrogatory written and received, every bit of important correspondence, and every deposition, declaration and affidavit taken or prepared – along with their clients, the codefendants themselves. Further, the experts would often assist the attorneys in preparing the questions asked of the plaintiffs’ deponents – just as I have often done — in most cases, for the most skilled and least penny-pinching of those attorneys I have assisted. Yet given the excellence of the attorneys selected for this effort, scrutiny of their work would rarely result in them being replaced. Far more likely, it would simply translate into efforts to further expand their knowledge, refine their efforts, and gradually make them virtually unbeatable.
The Senior and Junior experts could also service another important function: Evaluating potential customers. As an illustrative example, I have found the underlying cause of virtually half the lawsuits on which I have worked, including a vast diversity of incident symptoms, to be the fact that the route or vehicle’s schedule was too tight. If this is the case:
- Why would I sell my product to a non-emergency medical transportation provider, locked into an abstract rate formula contrived by an ignorant State bureaucracy that did not take into account variables as basic as density or travel time, and whose personnel did not know how to schedule vehicles efficiently enough to make a profit while operating safely?
- Why would I sell a motorcoach to a small mom-and-pop operator with a slew of past FMCSA violations, a bare-bones knowledge of operations and maintenance, and in particular, a sketchy or vacuous knowledge of the principles of fatigue, and the driver-assignment motives and/or skills to mitigate it?
- Why would I sell a schoolbus to a small school district or contract operator providing little or no training, with no knowledge of or interest in monitoring, and where routes, schedules and stops are selected solely by software, and where no stop was ever examined by a live Earthling?
- Why would I sell a paratransit vehicle to an operator working for a mega-national “broker” whose compensation formula forced its operators to commit all type and manner of safety violations just to “break even?”
The Alliance’s team of experts and a small support staff could actually perform these evaluations, and the OEMs and suppliers could simply starve the 10 percent or so of bad operators involved in 90 percent of the catastrophic accidents out of the market. Admittedly, an evaluation effort of this scope would bear some costs. But they could not possibly compare to the costs of having to defend oneself repeatedly in the catastrophic accidents that the “bad apples” cause. Further, starving the bad operators out of the business would have no effect on overall sales: The demand for service would not change. Instead, better operators would simply pick up the slack. In other words, the disastrous results of deregulation could effectively be reversed by the coordinated application of market forces and coordinated sales strategies. Such strategies could include charging the most responsible customers the least, and the least responsible customers the most – with the extra profits from the latter helping to pay for the project’s costs.
Of course, these constraints have their limits. This is because the vast majority of catastrophic motorcoach accidents involve vehicles that were purchased used. So the original OEM, converter or supplier did not have a choice to not sell or lease them a vehicle. However, even this constraint can be addressed to a considerable degree. For one, many sources of used vehicles are subsidiaries of OEMs. Secondly, even where this is not the case, dealers of used coaches must often trade them in for new coaches. So their behavior in selling or leasing used vehicles to accident-prone buyers and lessees could be controlled effectively by simply not selling irresponsible dealers any new products – effectively cutting off the ability to accept trade-ins for new vehicles. In simple terms, if a tightening of regulations and a shortage of law enforcement officials cannot keep the high-risk bandits off the roads, the OEMs, converters and suppliers can coordinate their efforts to starve them of vehicles and major spare parts. In this way, interestingly, the Alliance could actually assist its independent insurance carriers. This is only one of the many tools the Alliance could create to reward insurance carriers in return for their adherence to their clients’ central agenda and the yielding to them of the power over decision-making in terms of settling versus proceeding to trial – and the overall goal of “Reversing the Spiral.”
While these departures from tradition may seem radical, they would have very little effect on most members of the motorcoach community or any other public transportation community – with the exception of the minority of irresponsible operating agencies and companies. (And, yes, a poorly-managed public agency could find itself with few, or even no bidders.) I doubt these changes would even create a ripple on our umbrella organizations’ (UMA, ABA) agendas, other than the requirement that they relinquish the motorcoach industry’s exemption to revisions of the hours-of-service requirements of a decade ago. This is not to say these changes would not have an impact on any of their members. Indeed, these changes would likely shift some power from members such as casinos and amusement parks in favor of more power to manufacturers, converters and suppliers, as well as to the vast majority of serious, safe and responsible operating companies. Too bad. It is time to recognize that hundreds of fewer deaths and mutilations a year are a responsible trade-off for slightly fewer tourists or, God forbid, a slightly less-used slot machine.
If any reader (other than an irresponsible operator) were foolish enough to think that this strategy would only benefit vehicle manufacturers, converters and suppliers, permit me to enlighten you. Regardless of who actually coined the phrase, it is irrefutably true that those who fail to learn from the failures of history are doomed to repeat them. Following this, we cannot even estimate the deterrence to public transportation ridership that materializes every time a major catastrophic accident receives several days of round-the-clock coverage on every major TV network and in every major analog and digital media outlet. I myself know of no public or private body that has been able to, or has even tried to, track the impacts of these incidents on ridership levels, nationally or sub-regionally (where the specific accidents have occurred). At the same time, the “Big Lie” that computers will substitute communications for transportation could not be further from the truth. Our citizenry has verily poured into our airports to a point where air traffic control is nearing hysteria. Nonetheless, a major contributor to this trend is the commonly-acknowledged fact that, on a per-mile basis, air travel is the safest form of transportation – even while airplanes must defy gravity. So it is not a stretch to assume that, were we to reduce our catastrophic motorcoach and other vehicle accidents to a shell of their current levels, the phrase “leave the driving to us” would take on a whole new meaning: Instead of implying some notion about comfort, it would express a reality about safety.
What to do is clear. The solution is not crayon level. But it is also not the Manhattan project. There is a clear way to accomplish these important goals: Save hundreds of lives and mutilations a year, get most of the operators who cause them off the roadways, and keep those not responsible for them from paying for it. The people capable of accomplishing this task are available, and it would cost less to conduct the entire project described above for the next five years – at which time the Alliance would be unstoppable – than one of its members typically pays out in the settlement of a single catastrophic accident. This is not simply a good deal. It is something, frankly, that the motorcoach industry – and the public transportation industry as a whole – cannot afford to not do.
Power is neutral. What gives it meaning and value is how it is used. It is about time our industry evolved into what it unmistakably can become – a backbone of our nation’s infrastructure, and serve as a beacon of corporate responsibility and integrity. It is time to stop playing, and time to stop paying. A single charismatic individual may wield enormous power. But absolutely no individual can beat a great team.