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Why Bloomberg’s Megan McArdle is wrong on driverless cars

September 19, 2013 by Steven M. Gursten

The key to making driverless cars safe is not “killing all the lawyers”


Bloomberg’s Megan McArdle got it all wrong in her September 11, 2013, column, “To Enjoy Driverless Cars, First Kill All The Lawyers.”

I say this not out of any sense for self-preservation because I am a lawyer. Although, to be fair, I would prefer not to be killed by Ms. McArdle or others who mistake lawyers as part of the problem. Ms. McArdle is wrong because lawyers will be part of the solution.

To be clear, I share Ms. McArdle’s dream of driverless cars. I am rooting for Google. I look forward to my own ultimate obsolescence as a trial lawyer who helps people hurt in car accidents, and to the tens of thousands of lives that will be saved when this technology is adopted.

I have predicted that the commercial transportation industry will be the first to widely adopt this technology because the economic benefits are so enormous. There is a huge qualified truck driver shortage, and the trucking industry can foresee a day when there will be no catastrophic truck accidents caused by driver error, or hours of service rules that limit how long these trucks will be on the road. And, there will no longer be a shortage of drivers – because truck drivers will no longer be needed.

So why is Ms. McArdle wrong? Let me count the ways (with appropriate apologies to Sonnet 43).

Let’s start at the beginning with Ms. McArdle’s headline, “To Enjoy Driverless Cars, First Kill All The Lawyers.”  Ms. McArdle’s misunderstands her Shakespeare.

Shakespeare, you see, was paying tribute to the good that lawyers do in protecting society. The famous phrase “First kill all the lawyers” was actually uttered by Dick the Butcher in Henry VI.  Dick the Butcher was a follower of the anarchist Jack Cade, who wanted to see society torn apart.  Cade thought that if he could destroy the laws that protect society, then he could be king. Shakespeare penned these words as the ultimate tribute to lawyers. He saw lawyers as  protecting society, which is why he had a hateful anarchist say that to destroy society, they must start with the lawyers who protect it.

Shakespeare’s assessment of the role that lawyers play as the protectors of society in a world governed by the rule of law is just as true today it when Henry VI was written.

When it comes to driverless cars, it is lawyers who will help protect the public through our civil justice system.  It is the lawyers who would hold driverless car manufacturers accountable if they knowingly or negligently produce a product that kills and injures people (read: Ford Pinto).

Why does Ms. McArdle see that as a bad thing?

Not only will lawyers help to make driverless cars and driverless-car technology more safe, but, in doing so, lawyers will help make Ms. McArdle’s dream of enjoying an easy and effortless (not to mention safe) ride in her driverless car become a reality.

As of this writing, the question of who is liable for compensation if these driverless cars cause a serious motor vehicle accident still lingers.

Even in states like Michigan where I practice law, proposed legislation like Senate Bill 169 on driverless cars (“automated technology” that “has the capability to operate a vehicle…without the direct active control or monitoring of a human operator”) does not address the liability issue.

No state has come up with any answers yet. In Michigan, the legislature has left the question open. In California and Florida, the legislatures passed bills that instruct their Department of Motor Vehicles to come up with what it thinks should be done. In other words, they ducked the issue.

How will driverless cars apply to civil tort liability?

The answer, I predict, is that most legislatures will create laws limiting an injured motorists’ ability to bring a lawsuit against the manufacturers of driverless cars. Either they will be entirely pre-empted by federal law, or the states will do it, as they propose to do in Michigan.

I don’t think the trial lawyers can stop this. And I don’t think they should. The promise of this technology is so spectacular, that there should be a way to embrace it and give it a boost. After all, it promises to save countless lives, and will be an enormous boon to our productivity and quality of our lives.

What I would like to see is that owners retain bodily injury liability insurance coverage, at least in the beginning as this technology becomes perfected. The liability limits of this insurance for driverless cars should be higher than they are now, and be required for drivers and owners of motor vehicles that use this driverless automated technology.

If – as the proponents of this technology say, and as I hope is true – automated cars will drastically reduce the number of car accidents, then we should see the price of insurance drop significantly, even as we raise the liability rates to protect innocent people who are hurt by driverless cars.

By doing this we can still protect and provide compensation for accident victims, and at the same time give this amazing technology with so much promise the boost it needs as it becomes reality.

And even if liability for manufacturers is eventually limited, lawyers can still play a critical role in what the eventual standards will be as this technology becomes adapted.

At first, there may be 50 or even 100 different companies adapting this automated technology. Holding these companies responsible, and eventually working to create uniform and workable standards that protect society will occur through the tort liability system and through the lawyers who take these cases.

If serious harm is caused through negligence or reckless disregard, it is the lawyers who will play a pivotal role in creating the laws and standards that will protect society.

Just as Shakespeare intended.

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