There’s plenty of debate within trucking over the electronic logging device (ELD) mandate these days. Do the devices truly represent a cost savings due to less manual paperwork, as the Federal Motor Carrier Safety Administration claims ($1 billion a year in savings)? Will ELDs force drivers to push themselves when tired? And why are so many industry sectors and specific motor carriers getting exemptions to the rule?
Yet there is one issue only now slowly coming to the fore where ELDs are concerned and that is how the data they collect and maintain will be used in court cases.
Some attorneys fear ELDs could make it easier for plaintiff lawyers to win over juries and obtain large (and some would say unfair) monetary awards. But some of those plaintiff lawyers also think ELDs could, in some respects, act as “litigation stoppers” and could also reduce the need for expert witnesses as the data the devices gather “can speak for itself.”
In any event, the introduction of ELD data into the courtroom has the potential to create some long-lasting change where lawsuits involving truck drivers and motor carriers are concerned.
The Defense Attorney View
Some attorneys who defend drivers and motor carriers fear that ELDs could make it easier for plaintiff lawyers to use what they call “powerful ‘reptile’ tactics” in order to win over juries and obtain unfairly large awards.
“’Reptile’ tactics try to instill an idea or feeling of danger in the minds of the jury. The reaction that they’re hoping for is that the jurors feel danger to their community and will, instead of giving a verdict to compensate for the actual injuries received, vote based on ‘what do we need to do to protect our community,’” explained Melody Kiella, senior associate of Drew Eckl & Farnham, a law firm based in Atlanta and Brunswick, GA. “This produces high verdicts to punish a company or person so that they don’t do this again.”
“What’s fascinating about reptile theory is that it appeals to the subconscious,” added Jennifer E. Parrott, law firm partner and colleague of Kiella. “It’s not something that the jurors recognize as being appealed to, so they think that they’re following the court’s instructions on how to reach a verdict and how to interpret the evidence. But there is scientific backup on what’s being appealed to within their brains that affect their decision-making and in particular the numbers that they put up if they have a verdict in the plaintiff’s favor. Plaintiff’s lawyers will use phrases like ‘You, the jury, are the conscience of this community. You can change the future.’ It triggers your subconscious to say, ‘Hey, I need to do this to protect myself and my family from this happening to us.’”
Kiella and Parrott co-authored an article titled, “The ELD Mandate: Feeding the Reptile with Voluminous Electronic Data” in DRI, the newsletter of the Trucking Law Committee, in which they expounded how the information offered by ELDs can change litigation tactics.
“Our thinking was that they [plaintiff’s lawyers] are going to take all of this ELD information available at one location as opposed to having to go to a bunch of different third parties to request it, and they’re going to be able to use things, such as prior violations of the regulations by this driver and other drivers in the fleet,” Kiella noted. “Then they can take that information to the safety director’s deposition and ask them questions like, ‘Okay, so you received this notification of this violation by this driver on this day. What, if anything, was done to reprimand that driver for the violation or to train him regarding the violation?’”
She stressed that’s how a plaintiff’s lawyer can “trap” a safety director. “That’s how they get them to say, ‘Well, nothing was done after that.’ That can be used in front of the jury to say, ‘This motor carrier is a bad company, and this driver is a bad driver. When they violate these regulations, they don’t punish, or they don’t provide additional training.’ That’s an example of one way it could be used,” Kiella added.
Both attorneys suggest that ELD data used in court cases may hurt smaller trucking firms more than larger ones.
Parrott explained: “We’ve dealt with quite a few of what I’ll call mom-and-pop operations, and sometimes they’re not as good with compliance issues [as larger carriers]. A lot of times it’s because they’re short staffed and not because they’re incompetent. That’s where it’s a little frightening that ELDs are going to give a lot of information to plaintiff lawyers that they can aggregate and potentially find the flaws and problems with these mom-and-pops. Before they would have to scour through hundreds of pages of documents dealing with paper logs, and they weren’t always easy to find.”
But will ELDs cause attorneys to file more lawsuits against drivers and motor carriers?
“I don’t know that it will increase the number of lawsuits as much as it could increase the potential risk to trucking companies that are involved in lawsuits. If they [carriers] have problems, it’s going to be easier for attorneys to take that data and easily manipulate it,” Kiella said.
As for what steps drivers and motor carriers can take to protect themselves from being unfairly exploited by big data from ELDs, both say that records need to be kept for longer than the mandated six months.
“A lot of times [carriers] just think, ‘Well, no one’s filed anything yet; I haven’t gotten a claim. I’m going to go ahead and allow the logs to be destroyed after six months.’ Those things need to be saved, period,” Kiella contended. As for drivers, “like companies, they need to follow the rules and do what they’re supposed to do and leave it up to us on how to deal with tamping down the ways that plaintiff lawyers might try to abuse the information that comes out of the ELD.”
And while ELD data may also help exonerate innocent defendants who follow the rules and maintain and store their records, she is more concerned about its negative aspects. “Right now, we’re looking at this ELD mandate and trying to tear it apart to figure out the ways that it can bite us,” Kiella stressed.
The Plaintiff Lawyer View
Although defense lawyers are concerned about how ELDs could negatively affect drivers and trucking companies, one plaintiff’s lawyer suggests the devices could halt some unwarranted lawsuits in their early stages, lessen the jury-confusing banter of expert witnesses, and ultimately protect motor carriers and drivers who are “safety conscious.”
By checking data from ELDs, plaintiffs’ attorneys may know more quickly if a lawsuit has merit, noted Joseph Fried, trial attorney at Atlanta, GA-based Fried Rogers Goldberg LLC. In most cases, a lawyer will first file for discovery from a carrier to decide if a lawsuit is worthy of additional time and effort—and ELDs could shorten that discovery time period and perhaps indicate sooner that a lawsuit is not worth pursuing.
“There have been many cases that I would have filed in order to do the discovery, but I chose not to file because I looked at the information on the front end, and it didn’t support my case,” Fried said. “I’ve done my investigation, and I can go back to the grieving family who I’ve typically promised, ‘I’m going to get to the truth, or at least I’m going to try.’ If I have that [ELD] information, I can go back to them [more quickly]. That does not mean they may not go find somebody else to file the lawsuit. “
Fried not only teaches plaintiff lawyers but also has appeared at conferences for defense attorneys, too. “I teach lawyers all over the country, specifically about trucking litigation, and I tell them that you want to be the kind of lawyer who has credibility [so you can ask for ELD data up front],” he explained. “If you’re going to live a life of credibility, that means not bringing [shoddy] lawsuits. If you approach somebody [a carrier’s lawyer] and you ask for something and they say ‘no,’ then you probably have a pretty good lawsuit. Go file it. In my experience, if they have supporting material that helps them, they’re very happy to show it to me on the front end. To that degree, I think [ELDs] can be a litigation stopper.”
Fried also believes that ELD data can put a damper on the ‘he-said, she-said’ battle of expert witnesses and hiring of special auditors because the data often can speak for itself. He notes that ELD providers want to provide the most accurate, unbiased and trustworthy data to bolster their own trustworthiness in the industry.
To accomplish that, they will not “back up the industry at any cost,” he said. “I still think you have to be able to understand the data, and you have to put it into context. And there’s going to be some plaintiff lawyers who want to take it out of context and try to make it say something that it’s not really saying, and there are going to be some defense lawyers that do the same. But I’ve got another source to go get the information from, namely the ELD provider, and they’re most interested in maintaining their reputation for voracity of their ELD product.”
Fried also noted that he no longer must hire experts to try to decipher logs and do costly audits because the ELD company can provide that information. “In the old days, if I had to do my own log audit, I had to rely on a company to provide me with all kinds of stuff—stuff that they’re supposed to be maintaining for compliance anyway,” he pointed out. “But in litigation somehow, it becomes overly burdensome to produce. Most plaintiff lawyers then have to go and hire a $300-an-hour expert to do a log audit. If you’re doing that for a period of a couple of months, that’s a costly proposition. So I do think it [ELDs] will make the data more readily available and more easily understood. I think you still need to correlate it, but less so. It’s an easier log audit, because there’s so much corroborating stuff built into it if it’s really tied into the ECM [engine control module]. There’s some gamesmanship that’s still possible with ELDs, but it’s harder.”
Fried added that ELDs can also eliminate or cut down on the need to hire accident reconstruction specialists. “Accident reconstruction becomes simpler, because I can look at data and I can see five seconds, 10 seconds, a minute and 45 seconds, depending on the carrier and the ECM, and I can see what really was going on,” he explained.
“I can see when the brakes were applied, for example, whereas before each side would hire a reconstructionist, and they would sometimes wave their hands in the air and say, ‘This is what happened.’ The role of the expert is changing. ELD changes it, because there’s less work for them to do on audits. Proving an hours-of-service case, for instance, is a very different process under ELD.”
Fried, who was a police officer in Atlanta before becoming a lawyer, noted that highway safety has “always been in his blood” and that being a lawyer is a continuance of his interest in safety.
“What I do now I kind of view as a continuation of my law enforcement career,” he said. “I just have better resources than I ever had in law enforcement. I’m spending about 40% of my professional life doing things I don’t get paid for [like speaking engagements and teaching], so I guess that’s either good or bad, depending on who you ask.”
When it comes to ELDs, the bottom line for Fried is how they can positively affect driver and carrier behavior.
“The data is there,” he stressed. “Trucking companies that are doing what they’re supposed to be doing in terms of monitoring and supervising their drivers are going to be rewarded. Companies that are not will have a new reason to change their ways—because they’re going to get bitten by this data and their lack of responsiveness to the data if they’re not.”