Trial Magazine

Today, smart devices such as GPS trackers and wearable technology such as the Apple Watch help plaintiff lawyers prove liability without eyewitnesses. As these devices and activity trackers have become more popular than ever before, they present enormous opportunities in the courtroom.¹ It’s crucial to carefully examine smart device data and also to be prepared for the defense to request your client’s data.

In addressing the admissibility of GPS technology, courts have held that judicial notice and lay opinion testimony can establish its accuracy and reliability.² ­Furthermore, statements in a GPS tracking report have been found to be nontestimonial and thus not subject to the confrontation clause of the U.S. ­Constitution; they are also admissible as business records.³

Police and legal experts have long recognized wearable devices as “personal black boxes” because they trace all types of data—including the number of steps taken in a day, sleeping habits, and real-time location. These devices are especially helpful in motor vehicle, bicycle, and pedestrian crash cases. Whether on the user’s wrist, bike, or stroller, you can download or calculate variables such as speed, distance, angles, and degree of impact. Without witnesses or corroborating evidence, these devices can show your client’s biking, jogging, or walking speed, as well as the precise point of impact and the momentum of the crash.

Example A. After found unconscious in the street, a runner was taken to the hospital with a brain injury and no memory of what happened. There were no eyewitnesses. But data downloaded from a device on her wrist revealed the latitude and longitude of her location at the time of the incident. Visiting the scene revealed no skid or yaw marks (rubber imprints on the pavement indicating side-to-side movement of wheels), no road defects, and no “debris field” or any other indications of a car crash.

However, while visiting the scene, you saw a large dog run freely out of its yard. The GPS data showed a sideways alteration of the runner’s path, consistent with being hit hard and low by a dog. Canvassing the neighborhood revealed that the same dog often runs out of its yard. With these discoveries, you now have a path to liability through the dog owner’s homeowners insurance.

Example B. After stopping and being waved on by several stopped motorists, a lone cyclist riding on a paved bike path is struck by a car just before he reaches a grassy median on a five-lane road. The driver is not ticketed, and she claims that the cyclist never stopped, was traveling at a high speed, and failed to look where he was going. The front-seat passenger corroborates the drivers’ story and asserts that they were traveling at only 5 mph. No other motorists, cyclists, or joggers speak with the investigating police officer.

But the cyclist’s personal tracking device on his arm showed that he was not cycling erratically, that he came to a complete stop at the crosswalk, and that he waited 11 seconds for the traffic to stop before crossing wholly within the crosswalk at 3 mph. The second GPS unit on his bike showed his bicycle’s final resting point. With knowledge of the plaintiff’s weight, speed, angle, and distance, you calculate the defendant’s speed to be 43 mph—well over the posted speed limit of 35 mph.

Smart devices can help you understand the route taken and layout of the scene—just compare Google Earth images with your client’s fitness-tracking data.⁴ When you visit the actual location, the ground level view may yield additional evidence or avenues of investigation. At trial, you can use the GPS data with Google Earth images to show jurors the plaintiff’s course and ultimate point of impact. Supporting diagrams and images of the crash scene will be more memorable to jurors than oral testimony alone.

Smart devices can show the change in altitude and elevation in car crash and premises liability cases. They also may contain data to help you disprove a “misuse” defense in products liability cases—for example, you can show that the injured victim was not traveling at an excessive speed or that the crash was due to a pothole or other road defect.

You also may want to subpoena the defendant’s devices. Showing pre-crash speeds, routes, evasive maneuvers, or ultimate resting points can offer compelling evidence to jurors. With so many people tracking their personal data, you must be aware of its potential to help injured clients.

Doug K.W. Landau is a partner at Abrams Landau in Herndon, Va. He can be reached at doug@landaulawshop.com.

Notes

1. For a more in-depth analysis, see Doug K.W. Landau, Internet of Things: Identifying & Accessing Data—Unlocking Evidence in Wearable Technology: Fitbit, Apple Watches & More, 2018 AAJ Winter Convention Reference Materials; Doug K.W. Landau, Proving Your Unwitnessed Case With ‘Invisible’ Electronic Witnesses—Personal Black Box Evidence, 2017 AAJ Annual Convention Reference Materials.
2. See United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013); see generally United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002).
3. Brooks, 715 F.3d 1069. 
4. For more about using Google Earth in cases, see Alexandra Hamilton, A New View With Google Earth, Trial 56 (Jan. 2018).