Electronic logging devices (ELDs) negatively impacted trucking productivity at a time when skyrocketing demand and a worsening shortage of drivers are putting greater pressure on the industry.
One result is skyrocketing trucking rates that have shocked shippers used to years of haulers vying for their freight, who were forced by competitive pressures to turn a blind eye to drivers’ fudged logbooks and of hours-of-service violations.
Now there is another threat arising from the adoption of ELDs – liability lawsuits, according to attorneys Melody Kiella and Jennifer Parrott of the law firm of Drew Eckl & Farnham.
ELDs can help truckers’ legal defense in some cases, they admit, but the vast amount of information generated will be available to plaintiffs’ lawyers as well, which creates a new problem.
It will make it much easier for those lawyers who deploy “reptile” tactics by pinpointing a specific danger or safety issue that shows up, and who use that to appeal to the jury’s emotions when it comes to perceived threats to public safety, they say.
The “reptile” strategy triggers jurors’ survival instincts, or their “reptilian brain,” by emphasizing that the defendant’s actions present an immediate danger to their community.
Once jury members buy into the premise of this argument, then it’s not a difficult reach for them to accept the proposition that the defendant’s actions must be punished to create a necessary means of deterrence.
Because of this, the massive increase in electronically-stored information will encourage tort lawyers to seek to plumb the depths of the extensive data maintained after it’s generated by a trucker’s ELD provider on discovery, say Kiella and Parrott.
“How plaintiff’s lawyers will utilize ELD data in discovery and at trial and the extent to which such data will be discoverable will likely be a topic of concern among defense attorneys in the near future,” they point out.