One of the key parts of liability testimony in a car accident case is the chronology of the accident: the parties’ conduct before the impact, the impact, and conditions after impact. The parties are most likely to dispute the first part, making the car’s “black box” a potentially helpful source of evidence (but with its own pitfalls).
When a plaintiff describes how a vehicle accident occurred, he or she usually states what he or she did, if and when he or she saw the defendant, and what the defendant did. The plaintiff can also explain any steps taken to avoid or lessen his or her injury, such as wearing a seatbelt, bracing him- or herself, or trying to get out of the way.
Of course, the defense will often have a very different account of what happened before impact and will attack the plaintiff’s testimony. For example, if the plaintiff was stopped before the defendant hit him or her, the plaintiff could say, in general terms, for how long (e.g., a moment or two, or a few seconds). A defense lawyer may ask the plaintiff whether he or she had a foot on the brake when hit. If the plaintiff answers “Yes,” but there was no evidence that the plaintiff’s tires left marks after the impact, the plaintiff’s testimony appears untrue. A “No” answer is evidence that the brake lights were not on at the time of the collision.
With parties and witnesses having a subjective view of events, it’s handy that technology can give us evidence that may corroborate or contradict witness testimony. Computers are now ubiquitous in newer motor vehicles, making it possible for attorneys to discover and review available “black box” (i.e., electronic control module or event data recorder (EDR)) data from the vehicles involved. This data may include information such as a vehicle’s speed or acceleration and whether the brakes or seatbelts were in use.
Although it doesn’t have a faulty memory or ulterior motive, EDR is not necessarily complete, accurate, or reliable. For example, data captured by the EDR doesn’t always record the entire crash event. And if the VW case taught us anything, we know that a car’s technology can be manipulated.
So attorneys shouldn’t just take the data and run with it as the complete truth. You need to understand what information the EDR provides and how to use or attack it as necessary. And if you’re using EDR, always establish the reliability of the data collection process and correlate the data with the physical evidence, the scene, and witness testimony.
When using EDR data, you’ll want to protect it from spoliation by taking the following steps:
- Obtain a preservation of evidence order;
- Notify all parties that data will be extracted from the EDR and invite them to attend the process used to download the information;
- Prepare a protocol for the process that will be used to download the EDR data and get consent of all parties to the protocol;
- Video the entire process of downloading data from the EDR; and
- Photograph key stages of the process and readouts from the computer.
For everything you need to know to confidently handle personal injury witnesses and evidentiary exhibits that prove your case, turn to CEB’s California Personal Injury Proof. And if you’re just starting out in a personal injury practice, check out CEB’s program The Basics: Personal Injury, for 12 hours of the concrete, practical guidance you need.
Other CEBblog™ posts you may find useful:
- Get Technical in Your Next Personal Injury Case
- Settling a Car Accident Case: Drafting Your Demand
- Deposing the Doctor: Why Do It and How Much Will It Cost?
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