What To Do When the Auto-Accidents Run Out
Self-driving cars may take over roads in 10-15 years. I myself will be giddy to get my hands on one. But when the robots whisk us off to the future, will they also be whisking away lucrative careers for thousands of personal injury attorneys?
Not if we start preparing our shift away from car-crash cases now. Keep reading for an analysis of personal injury law in our robocar future and a few juicy hints for creating a strong plaintiff-side practice in the tech-transformed future.
Cars are Killers: We’re Due for a Change.
Every day we hop into a metal death-trap and zoom down the road. The numbers are dire: around the world every year, nearly 1.3 million die in a car crash. That’s nearly 3,300 people wiped off the planet every day. It’s the leading cause of death globally among people aged 15-29. If you expand to look at injuries and disabilities, the numbers jump to 20-50 million. Just in our own country, we see 37,000 deaths every year and 2.35 million injured from cars.
These numbers are, quite frankly, horrifying. Each time we encounter an automobile, we should be shivering with the kind of fear we’d have alone out in the ocean seeing the dorsal fin of a great white shark. But instead, we happily jump in and speed away, while drinking a coffee and texting a friend.
Let’s keep in mind: as bad as these numbers are, without lawsuits they would be much worse. Without tough advocates for victims, cars would still be designed purely for speed and Ford-Pinto-style panache. Litigation has pushed car manufacturers to improve seat belts and airbags and cradle the gas tank within a rigid frame to cut down on the pesky problem of Massive Explosions.
Pop culture might decry personal injury attorneys as ‘ambulance chasers,’ but as Gibson Vance put it in a Washington Post piece, the truth is that “litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.”
Now an entirely new era is barreling down the road at us. Auto-tech futurists are predicting that self-driving cars could dominate the roads as soon as 2030. The big news here is robot cars could cut down accidents by as much as 90%. Some have gone so far as to foresee this as “the great public health achievement of the 21st century.”
Just as plaintiff-side attorneys don’t wax nostalgic about the good-old-days when cars were even more dangerous, I’m not going to weep over the future’s safe roads. In fact, as a father, I’m thrilled. I’d much rather send my teenagers off in a Google-powered car than have their inexperienced hands on the wheel.
But I’m well aware that the self-driving revolution will also mean a major change for the personal injury attorneys I work with. One attorney is using the verb “eviscerate” to describe what this technology will do to the personal injury bar. The fact is: auto accidents have been a stable cornerstone for plaintiff’s attorneys, making up over half of all tort cases. They have higher win rates and pay off faster than other tort cases, though they tend to have a much lower payoff on average — a fraction of the average amount from something like a medical malpractice case. But even as we’ve seen the multimillion-dollar wins come elsewhere, unruly automobiles give us our day-by-day job security.
What will we do when they’re gone?
Transportation Transition: We’ve Got Time
If you’re starting to feel nervous about this ‘evisceration,’ remember that you’ve got time. The best estimates in technology and policy predict that we could see mass adoption of auto-piloted cars in 15-20 years. Cars are major investments with a lower replacement rate than other technologies that shape our lives.
This transition won’t end car crashes (as we saw earlier this month with a fatal Tesla crash in China — the driver had apparently activated the autopilot, but his car rammed at high speed into the back of a slow-moving truck). But the transformation will probably greatly reduce serious collisions — perhaps by a whole order of magnitude.
It’s worth remembering that not everyone gets a fifteen-year warning about major changes in their career field. Smart developments now can help us weather the transition stage and come out the other side with a strong, forward-looking practice (that we can work on during our commute, while our robo-cars chauffeur us to the office).
But this transition time is going to be a bumpy ride for all of us.
A road filled with automated cars is bound to be much safer than the status quo. But it turns out a road partially filled with robots is a different story. In our current context, driverless cars are actually twice as likely to be involved in an accident – even though almost none of these accidents are the fault of the robots.
The counter-intuitive problem is that automated cars scrupulously follow the law all of the time. This is behavior that we regular, carbon-based scofflaws don’t expect. So we wind up ramming into their rears (and causing programmers to wonder if for safety’s sake they should build in a bit more rule-breaking aggression).
This means that until self-driving cars truly dominate the roadways, personal injury attorneys may be able to take on winning cases representing robo-car owners. And these clients come replete with fantastic evidence: instead of relying wholly on witnesses’ word-of-mouth and after-the-fact interpretations from experts, the details of the accident will be recorded clearly by the car’s sensory computers.
And there are other reasons that safety will likely worsen while automated cars are being adopted. Adding to the rocky interface between robots and humans, there are bound to be mechanical and software growing pains, as companies will be unleashing their prototypes and beta-tests onto the streets.
The geeks creating the cars of the future are also likely to move faster than transportation regulators and policy-makers, giving litigation an important role in defending victims of sloppy programming and reigning in unruly corporations.
The Auto Lawsuit of the Future
But even if we move quickly to the best-case scenario of a driverless future, no one believes car crashes can be completely ended.
And as we detailed in an earlier post, when code or computer failure causes a crash, a whole new world of liability is opened. Attorney Kevin Dean, who takes on auto companies for manufacturing default and negligence cases, predicts “It’s going to be very fertile grounds for lawyers.” He notes: “you’re going to get a whole host of new defendants. Computer programmers, computer companies, designers of algorithms, Google, mapping companies, even states.”
Consumers are already a little twitchy about liability with driverless cars – understandably, they don’t want to be blamed for something the bot does. This has pushed Volvo, Google, and Mercedes-Benz to vow that they will accept liability when their cars cause an accident.
Of course, these same companies are bound to fight like hell concerning the facts of any particular accident case. As attorney David Bright notes: “Every car manufacturer says, ‘We absolutely stand behind our car if there’s anything wrong with it. Then they say, ‘There’s nothing wrong with it.’”
There are other ways the auto lawsuits of the future will differ. Currently, most accidents come down to driver error, but when the driver is some lines of code and bits of machinery, auto lawsuits immediately lend themselves to product defect cases. This could lead to ready-made class-action lawsuits since one built-in defect puts many consumers at risk.
Another crucial field for drivers of computerized cars is cybersecurity. Inevitably there will be hackers fiddling with weak code and governments clamoring to get access to personal information. Lawsuits defending driver privacy will be another important consumer protection tool.
And of course, even in the future, there will likely still be things like classic cars, motorcycles, and driving aficionados who won’t give up the wheel, keeping some of our nostalgic, old-style auto tort cases alive.
But the need to rethink and retool our practices goes deeper than what’s on the road. When automobile claims reduce, here are the areas that can keep a good plaintiff-side attorney busy for the foreseeable future:
Diversify, Diversify, Diversify.
Though Google cars are now only novelties on some California streets, savvy attorneys are already actively diversifying their practices to reduce their reliance on car collision cases. They’re steadily extending our focus to cases of employment discrimination, workers compensation, social security disability, sexual harassment, product liability, and medical malpractice cases.
And we’re finding the time is ripe for this change.
This is because we’re witnessing an age where, in the quest to scrape out every last ounce of profits, corporations are taking riskier moves and tiptoeing further into an unscrupulous territory. The latest bad actor to be highlighted in this regard is Wells Fargo, where relentless sales pressure pushed thousands of employees to create millions of fake accounts. The scandal metastasizes as banking insiders anonymously insist this flavor of fraud is an “industry-wide problem.”
This revelation has spurred additional litigation, as former Wells Fargo employees just filed a class action in California seeking $2.6 billion for all those workers who were fired or demoted for failure to meet the insane sales quotas that drove their coworkers to fraud. The lawsuit cites wrongful termination, unlawful business practices, and failure to pay wages, overtime, and penalties.
Other corporate corner-cutters can be found in the pharmaceutical industry. Plaintiff-side attorneys wishing to diversify their caseload should be scrutinizing drug manufacturers and distributors, for their envelope-pushing drugs and products and their aggressive manner of marketing them. Companies increasingly market directly to consumers in a misleading manner, promote off-label uses of their drugs (including through payments to practicing physicians), and hide crucial data about harmful side effects.
As a doctor and medical scholar Ben Goldacre writes in the introduction to Bad Pharma: How Drug Companies Mislead Doctors and Harm Patients:
“Drugs are tested by the people who manufacture them, in poorly designed trials, on hopelessly small numbers of weird, unrepresentative patients and analyzed using techniques which are flawed by design, in such a way that they exaggerate the benefits of treatments. Unsurprisingly, these trials tend to produce results that favor the manufacturer. When trials throw up results that companies don’t like, they are perfectly entitled to hide them from doctors and patients, so we only ever see a distorted picture of any drug’s true effects. Regulators see most of the trial data, but only from early on in a drug’s life, and even then they don’t give this data to doctors or patients, or even to other parts of government. This distorted evidence is then communicated and applied in a distorted fashion.
“In their forty years of practice after leaving medical school, doctors hear about what works through ad hoc oral traditions, from sales reps, colleagues or journals. But those colleagues can be in the pay of drug companies — often undisclosed — and the journals are too. And so are the patient groups. And finally, academic papers, which everyone thinks of as objective, are often covertly planned and written by people who work directly for the companies, without disclosure. Sometimes whole academic journals are even owned outright by one drug company. Aside from all this, for several of the most important and enduring problems in medicine, we have no idea what the best treatment is because it’s not in anyone’s financial interest to conduct any trials at all.”
For an example of several of these problems combining in a disaster of a drug, look no further than Risperdal, an antipsychotic made by Johnson & Johnson. In 2013 the drugmaker agreed to pay the U.S. government $2.2 billion to settle claims they promoted off-label use and gave kickbacks to physicians who overprescribed the drug. Some of the most damning evidence surfacing in class action lawsuits comes from whistleblowers who claim that the company aggressively marketed the drug to children’s doctors for ADHD, concealing their own evidence that its use could lead to ‘gynecomastia,’ or the growth of breasts (one boy grew, without warning, breasts sized 46DD).
At the other end of the age spectrum, the drug was pushed on the elderly to treat dementia, even though it carries unacceptable stroke risks. But rather than put in the needed R&D to develop better drugs, Johnson & Johnson sunk their funds into more intensive marketing and physician kickbacks.
Class action lawsuits on behalf of Risperdal users continue. And they should — especially since the pharmaceutical industry is spending more on lobbying politicians than any other industry, eroding the chances that consumer protections could come from legislative efforts. For those wronged by unscrupulous pharmaceutical practices, litigation is the only remaining route to restitution.
In terms of employment law, we’re seeing companies search for new ways to squirrel out of their responsibilities to employees, particularly through misclassifying them as independent contractors. Lawsuits such as those brought against Uber on behalf of its drivers can help workers get minimum wage and overtime guarantees, as well as other employee protections.
It comes down to this: as companies push themselves to more extreme tactics to make a profit, they’re going to make more mistakes and harm more people. A good personal injury practice requires that we be just as flexible and mobile to follow these new trends. While car accidents have provided a steady backbone of small, ready-made cases, the future could require us to take on bigger cases with larger up-front risks.
One factor shared by these cases is that they take time. Big cases like these could take three to seven years before an attorney sees any payoff, making it all the more crucial that we begin our transition now. If we wait until the auto cases run dry, it will already be too late.
Between the Good Old Days and the Unknowable Future
I sometimes hear old-timers talk about the glory days of the 80s and 90s before most states set down a series of damages caps for medical malpractice lawsuits. Laws limiting compensation have put a dent in the plaintiff-side practice — but we weathered the storm and moved forward.
We can also weather some radical changes in our car culture.
But all of this being said, it’s worth remembering that technology is wild and slippery and has unforeseen consequences. In truth, we don’t know what the future holds. After all, a few years ago every smart person was worried over peak oil and predicting $8 per gallon pump prices. A few years ago every smart person rejected the possibility that Donald Trump could be the Republican nominee for president. Markets and societies change and shift and surprise us, and smart people are sometimes dead wrong.
What will save them in the face of uncertainty is that plaintiff’s attorneys are, by their nature, entrepreneurial. They take risks. They innovate. As the times change, they’ll change with them or become obsolete.
And if the future happens to lack horrific traffic accidents, they’ll celebrate with the rest — and find new ways to practice their profession and keep protecting the little guy.