Plaintiff attorneys are coming for your fleet data

Many fleet managers falsely believe that, if they don’t aggregate and analyze data, they are immune from being preyed upon by legal plaintiffs. The thinking is, if they don’t self identify vulnerabilities, such vulnerabilities won’t be discovered during a lawsuit.

They’re wrong to believe “it won’t be revealed”. What they don’t know can still hurt them.

Plaintiffs still conduct their own analyses to find the vulnerabilities exposed by fleet data. And when they do, they can twist the narrative. This can empower plaintiffs to paint a fleet’s vulnerability as a “systemic failure” needed to support a “reptile theory” and explosive verdict.

Plaintiffs know what fleets have and how to get it, too.

Any doubt? They teach courses on it. At a recent conference for plaintiff trucking lawyers, the sessions included the following: Trucks – treasure troves of data; Telematics systems – what they are, how to use the rules of procedure to obtain data, and standards for admissibility; Examples of telematics in real cases; Cell phones and mobile devices – what data exists, how to get it, and how to make it admissible.

Plaintiff attorneys are coming for your data, regardless of whether you cumulate and analyze it.

Moreover, your failure to analyze fleet data can itself be a target for their attack. “The trucking company could have known of the safety failures if it wanted to. It didn’t,” they’ll say.

You could ignore the data, hope plaintiffs don’t find it, and pray that the jury won’t send a nuclear message. But that’s kind of like not going for an annual physical and then taking comfort in not knowing your health.

Flip the script

A better option is to flip the script. Embrace, cumulate, and analyze your data as the foundation of your defense.

picture of gavel and cash
(Illustration: iStock)

For the reptile theory to succeed, it needs to show a company’s “systemic failure”. Inadvertent accidents and conditions that don’t warrant correction won’t trigger the reptile response. 

Use your data as the foundation for a defense against reptile attacks. Demonstrate that you constantly look for vulnerabilities, and address the vulnerabilities when they’re found. Your defense is: “We cumulated and analyzed the data. We identified the key indicators of unsafe conduct. We monitored compliance and punished violations. When we found vulnerabilities, we addressed them. Here’s how.”

The result: “No systemic failure here. Nothing needs correcting. It was a one-off human failing rather than a systemic failure.”

Most important, you proactively write your own narrative based upon your cumulation and analysis of data. You don’t surrender control of the narrative to the plaintiff.

It doesn’t stop the plaintiffs from trying to manipulate and misuse data. But you can proactively produce your rebuttal based on a thorough analysis of the data generated over a period of time.

First, analyze the data to improve safety. The best defenses, after all, involve no accident and identify systemic safety procedures.

Second, proactively develop the rebuttal based on your use of the data to promote safety. You know the attack is looming. Prepare your response today. 

Determine the key indicators and support your decisions with data. Proactively justify why these data points are the keys to monitor based on your experience and analysis. 

Third, even if the jury buys into the plaintiffs’ spin, show you have actively sought to identify and correct safety issues identified by the data. The result will then be a disagreement on analysis, not a complete failure to cumulate and analyze the data.

Don’t fear your data. Embrace it. Use it. Proactively make it the foundation of your defense.

Cumulate and analyze your data to identify safety factors, monitor them, and enforce compliance. If you don’t, plaintiffs will.

Doug Marcello is a transportation attorney who has earned his CDL. His law practices focuses upon serving the trucking industry. Based in Central Pennsylvania, he has represented trucking companies in cases throughout the US, having been specially admitted in 35 states. He is a frequent speaker at industry events and driver safety meetings. He has also written numerous articles concerning issues confronting the industry and has produced several DVDs relating to accident response and aggressive defense of claims.


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