Skip to main content
Blog

The Discovery Fallacy: Potentially Fatal Risk to Your Company  

By June 29, 2022No Comments

By Doug Marcello, Chief Legal Officer Bluewire, LLC, Guest Contributor

Trucking is paralyzed by the paranoia that the mere possibility of “discovery” disqualifies any progress regardless of the ultimate net value. This mentality of absolute avoidance of any risk, rather than assessment and analysis of the benefit, costs our industry millions, if not billions, by ignoring immense benefits based on a scintilla of risk.   

Psychologists have a name for this. “Catastrophizing”- a cognitive disorder that prompts people to jump to the worst possible conclusion, usually with very limited information or objective reason to despair” according to Psychology Today. Sound familiar? 

“Zero Risk” mentality is creating huge exposures by vetoing protective programs due to catastrophizing fear. Worse. The focus on fear ignores the existing exposure. 

This negativity blocked camera implementation for fear of the potential for a bad video. Their risk aversion ignored the overwhelming benefit of exoneration videos. Ignoring the exposure from any accident because the truck is presumptively to blame. Costing millions, if not billions. 

Would you ignore a driver’s MVR because there might be bad evidence in it? PSP? “Don’t give her a driving test. If she does something wrong…”

Now many counsels forgoing proactive data management merely for fear that its analysis will be “discovered.” They falsely feel that if they don’t aggregate and analyze their data, they are immune from being preyed upon by plaintiffs. If they don’t self-identify their vulnerabilities, they won’t be discovered when sued. 

In other words, what you don’t know won’t hurt you.   

Wrong. Wrong in the misbelief that “it won’t be revealed”. Wrong in the delusion that underlying data is not discoverable in and of itself. Wrong in the misconception that plaintiffs won’t prey upon the raw data and skew it for their own profits. 

FALLACY: “We don’t want to analyze data for vulnerabilities so it can’t be discovered by plaintiffs.” 

REALITY: Just because you don’t do it doesn’t mean that plaintiffs can’t find it. The data is there. It can be discovered even without aggregating and analyzing it.   

Worse. Plaintiffs can find the vulnerability exposed by your data by doing their own analysis…and reach their own conclusions. 

They can then spin your failure to mean their narrative. The result is to empower plaintiffs to paint your vulnerability as a “systemic failure” that they need for a Reptile Theory attack and explosive verdict. 

And in a world where “systemic failure” is a verdict accelerator, the price of paranoia is magnified by multiples. 

YOUR DATA: PLAINTIFFS’ TARGET 

Plaintiffs have targeted your data as a detonator for explosive verdicts. They know what you have. They know how to get it.   

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, whether or not you cumulate and analyze it. Conversely, you’re not cumulating, and analyzing your data doesn’t mean that they won’t get it.   

What it does mean is that they get to spin what your data shows the way they want and the way that is most damaging to you. 

Moreover, your failure to analyze your data can be, in itself, a target for their attack. “The trucking company could have known of the safety failures if it wanted to. It didn’t. Jurors, get their attention and focus their attention with a large verdict.” 

FLIP THE SCRIPT…CONTROL YOUR NARRATIVE…WITH YOUR DATA 

So you can ignore the data, hope plaintiffs don’t find it and pray that the jury won’t send you a nuclear message. Kind of like not going for your annual physical and taking comfort in not knowing your health. 

Or…you can flip the script. Embrace, cumulate, and analyze your data as the foundation of your defense.  Use your data as the foundation for your defense. 

For the Reptile Theory to succeed, it needs to show a “systemic failure” by your company. Inadvertent accidents and conditions that don’t need correction won’t trigger the Reptile response.   

How do I know this? It says so in the book, The Reptile Theory (pages 30, 31, 38, and 53). 

Use your data as the foundation for your defense against these Reptile attacks. Demonstrate that you constantly analyze for vulnerabilities and, if found, address them. 

Your defense — “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 to be corrected. It was a one-off human failing, not a “systemic failure”. 

PROACTIVELY REBUT PLAINTIFFS’ MANIPULATIONS 

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

Your cumulation and analysis of the data don’t stop the plaintiffs from trying to manipulate it for their misuse. But you can proactively produce your rebuttal based on your more thorough analysis of the data over a period of time. And show that you’ve addressed any vulnerabilities that it revealed. 

First, analyze the data to improve safety. The best defenses are a.) no accident and b.) strong “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.   

What you do before the accident is evidence. What you do after the accident is backfill. 

Determine the key indicators and support your decision with data. Proactively prepare your justification why these data points are the keys you monitor based on your experience and analysis.   

The result: “No ‘systemic failure.’ Nothing to correct. We’re on it.” 

Third, even if the jury buys the plaintiffs’ spin, show you have actively sought to identify and correct safety issues shown by the data. The result is a disagreement on analysis, not a complete failure to cumulate and analyze the data. Doing so deprives the plaintiffs of the argument that there is a “systemic” vacuum that needs to be filled by a big verdict. 

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

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