Q&A: Self-Driving Cars and Lawsuits

June 6, 2016

Tips from a lawyer on preparing for the liabilities created by autonomous vehicle technologies.

We're increasingly hearing about self-driving cars, as they promise to make our roads safter and free up time from driving during commutes. But with any ground-breaking technology comes new legal issues. While traditional automotive lawsuits originated from mechanical components, the next wave of suits will stem from algorithms and analytics.

It’s an interesting topic, and it points to the broader issue of the types of liabilities that might come when we add automation to existing products. Here’s a quick Q&A with Jonathan Judge, a trial lawyer at Schiff Hardin, who often focuses on the growing role of Adaptive Driver Assistance Systems (ADAS) in the automotive sector.

Q: What are some of the biggest legal hurdles with self-driving technology?

A: There are two big questions auto companies must answer: How can you be honest with consumers about the product’s limitations, and how do you decide an acceptable risk threshold?

Consumer expectations for the product are going to be wildly unrealistic unless we tell them otherwise. They may overestimate the vehicle’s capabilities, or claim after the fact that they thought it would be a flawless system.

Also, these systems have to be trained. Suppliers will need two sets of data. The first is a training set so that the system recognizes certain images and situations. The second set is what you use to test the system; it provides an objective way for scoring these algorithms to measure what percent of the time sceanrios are correctly being identified.  You don’t mix the two sets because you want to know how good the system is on data that it has never seen before.

Q: So at this point, companies must decide their own thresholds?

A: Risk managers have to understand what decisions are being made, which thresholds are being chosen and what risks are being deemed acceptable. Ideally, this will be a company-wide discussion.

Consider importance when it comes to procurement. Some companies may identifysuppliers with a given technology, and simply look at who is giving a good deal. But how stringent are the testing criteria, and how realistic are they in light of the need to ship product? The auto company has to define realistic goals at the outset, and the suppliers must be very clear about product thresholds and limitations, or there could be liablity down the road.

Q: Any advice for companies and suppliers in the driverless car industry?

A: Companies and suppliers have to ensure the contracts are specific in terms of what they’re obligated to deliver. The sooner that suppliers and OEMs start the discussion around their respective levels of acceptable risk, the better.

If the auto companies and suppliers do this right, we’ll have a huge drop in legal expenses because driverless cars will reduce accidents and the public will also feel reasonably informed about the remaining limitations of driverless cars. This should be discussed upfront as part of the planning and solutions phase. Everyone in legal and risk management should be involved in the decision to set the thresholds, and then once you do that, figure out how to communicate that to consumers in a meaningful way. You can’t notify your consumers if you don’t understand it in the first place.

Q: What is the human resources hurdle?

A: It’s tough to present and defend these concepts publicly without the right expertise. For many lawyers, practicing law is a math-free zone. There are certainly people who are very knowledgeable in programming and statistics, particularly for things such as patent work. But a lot of the upcoming disputes won’t be patent disputes, so companies will need to find trial lawyers (or those with experience in communicating complicated concepts) who have in-depth knowledge of the algorithms, jargon and analytics. It’s a rare combination and something that outside counsel cannot simply be trained to understand on the fly.

Q: Will you ever use a driverless vehicle?

A: Absolutely. I think it will make us a lot safer, save gas and be a nice step in focusing on other things.

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