Some attorneys who defend drivers and carriers fear that electronic logging devices (ELDs) could make it easier for plaintiff lawyers to utilize powerful 'reptile' tactics 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,” explained Melody Kiella, senior associate of Atlanta and Brunswick, Georgia based-firm Drew Eckl & Farnham. “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?’ 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 affects 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 said: "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, and they can take that information to the safety directors 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?'”
"That’s how a plaintiff lawyer can trap a safety director into saying, 'Well, nothing was done after that,' she pointed out. “That can be used in front of the jury to say, 'Look, jury, this motor carrier is a bad company, and this driver is a bad driver, and when they violate these regulations they don’t punish, or they don’t provide additional training.' That’s an example of one way that it could be used."
Both attorneys suggest that ELD data used in court cases may hurt smaller trucking firms more than larger ones.
"We’ve dealt with quite a few what I’ll call mom-and-pop operations and sometimes they’re not as good with compliance issues [as the larger carriers],” Parrott stressed. “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 the ELDs are going to hand over a lot of information to plaintiff lawyers that they can easily aggregate and potentially find the flaws and problems with these smaller 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."
Will ELDs cause attorneys to file more lawsuits against drivers and 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 noted.
As for what steps drivers and 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 contends.
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,” she added.
While ELD data may also help exonerate innocent defendants who follow the rules and maintain and store their records, Kiella noted that 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 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 discussed how the information offered by ELDs can change litigation tactics.