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Motor Vehicle Crash Data Recording Systems Volume XIII Number 5 Spring 2007 outgrowth of airbag and computer technology. Early Motor Vehicle Crash airbag technology was fairly primitive and the utiliza- tion of mechanical components did not create opportu- Data Recording nities for data recording and retrieval. As airbags became accepted by the public and required by the gov- Systems ernment, there was a virtual explosion in the growth of the sophistication of the micro chips and availability of Philip G. Gardner and mini processors. Suppliers to the automotive industry such as Delphi and Seimens were quick to rec- ognize the benefit (and profit) of employing microcom- Following almost all aircraft crashes there is the puters for air-bag deployment. usual announcement that the matter is under investiga- By the mid 1990’s sophisticated and effective com- tion and that FAA flight investigators are looking for puter modules were in extensive use in the automobile the flight data recorder. This familiar devise, known as industry not only for airbag deployment but for almost the “black box”, has a not so familiar motor vehicle all motor vehicle functions. The central brain of most counterpart known as the crash data recorder. The vehicles is the powertrain control module, a computer device goes by various names which will be discussed that controls many vehicle functions such as gear shift- herein but the various components are often referred to ing, traction control, ride stability control and fuel to as the vehicle crash data retrieval system. This is some- air ratios just to name a few. The powertrain control what of a misnomer inasmuch as the data recording module also sends information to another module, function of the system is secondary to its primary func- Crash Data — cont’d on page 4 tion which is to collect and interpret certain data about a vehicle’s behavior and make a decision whether to Table of Contents deploy the vehicles passenger restraint system (airbags and belt pre-tensioners). Motor Vehicle Crash Data Recording Systems . .1 by Philip G. Gardner The crash data retrieval system on many passenger Letter from the Chair . .2 vehicles provides highly accurate information about a by Vicki Hansen Devine, Esq. vehicle’s activity for each of approximately five seconds View from the Bench – A Few Thoughts on Settlement before a crash and information about the crash itself. Conferences . .3 The data recording systems vary from manufacturer to by Michael F. Urbanski manufacturer but the information retrievable includes Statutes of Limitation in Equity – If Equity Follows the Law, What is Left of Laches? . .10 speed, engine rpm, percentage of throttle and when the by Robert E. Scully, Jr. brakes were activated. The value of such information One Chance to Make a First Impression: The Primacy of to the trial lawyer is readily apparent. This article will the Opening Statement . .14 provide a basic introduction to the system, how it by Michael A. Cole works, how the data is acquired and interpreted and Assignments and Other Hazards of the Litigation Breakfast: issues relating to the admissibility of the data in court. Document Production from Testifying Experts in Virginia Circuit Courts: . .16 The development of the technology allowing pre- by Kathleen Wright crash and crash data to be recorded and retrieved is an Litigation Section Board of Governors . .21 Philip G. Gardner is a partner at Gardner, Gardner, Barrow & Sharpe, P.C. Recent Law Review Articles . .22 in Martinsville. by R. Lee Livingston 1 Litigation News Spring 2007 Letter From The Chair Vicki Hansen Devine, Esq. Law in Society Essay Contest Skyland Lodge in the Shenandoah National Park. The By the time you read this message, the entries for the topic is Criminal Appeals and speakers will include annual Law In Society Essay Contest will have been read Rosemary Bourne of the Attorney General’s office, and graded and most likely the winners will have been Scott Moore of the Chief Staff Attorney’s office of the announced. As I write, the grading is just beginning. Supreme Court of Virginia and our own Appellate It is my pleasure to report to you that the State Bar Subcommittee Chair, Steve Emmert. If you wish to received 301 essays this year, a significant increase over register, you may get information from Steve’s website, last year. As you know, the Litigation Section has partic- www.appeals-virginia.com or at the VSB Litigation ipated in the funding of the contest (including prizes), in Section website, www.vsb.org (go to Litigation Section assisting with the grading and, this year, spreading the “Meetings and Seminars”). word. I am told by Dawn Chase, Public Information and Contest Coordinator at the State Bar, that the VSB Summer Meeting increased interest may be attributable to several factors: As I mentioned to you in the last issue of Litigation 1. The assistance of Peggy Hays, a retired social News, our section, in partnership with the Criminal studies teacher from Lexington, in promoting Law section and the Bench-Bar Relations Committee the contest at a conference of teachers last fall; will sponsor the Showcase Workshop at the summer 2. Your involvement in contacting principals, meeting, featuring Bill Haltom, legal humorist, as well teachers and counselors in your locality in as local and distinguished panel members: David response to my plea for your help in publicizing Baugh, Moderator, The Honorable Ann Hunter the contest; Simpson, 15th Judicial Circuit, Joe Condo, past presi- 3. Doubling of the prize money; and dent of VSB and Karen Gould, our current president. I 4. Efforts by the Virginia State Bar staff and Will hope you will make plans to attend the Summer Allcott of McGuire Woods who chairs the Meeting, and, particularly, the Showcase Workshop. Publications and Public Information Committee of the Virginia State Bar who took Personal Note steps to get the word out to more schools. Our Section has the potential to make a significant The topic this year was whether people with undoc- contribution in promoting the practice of law as the umented citizenship status should be allowed to attend honorable profession it is. If you have an idea for a state-supported universities. As Dawn remarked, “kids project that can serve not only the legal community, but were energized by it, on different sides of the issue...and also the community at large, please call, email or write their arguments were so inspired.” to me. As the largest of the VSB sections, we have a Whatever you, I and the State Bar can do to contin- huge pool of human resources (all of us members) just ue to increase participation next year (and years to waiting to be involved in good works. I look forward to come), let’s do it! The contest is a meaningful exercise hearing from you. U in promoting creative thinking and legal analysis and deserves our active support. Vicki H. Devine Furniss, Davis, Rashkind and Saunders, P.C. Appellate Subcommittee P.O. Box 12525, Norfolk, VA 23542 The next symposium on appellate practice will take Telephone - 757-461-7100 place on May 10, 2007 from 1:15 to 3:15 p.m. at [email protected] Vicki Hansen Devine, Esq. is Chairman of the Virginia State Bar Litigation Section. She is a partner at Furniss, Davis, Rashkind in Norfolk, VA. 2 Spring 2007 Litigation News View From the Bench Michael F. Urbanski1 The Federal Judicial Center trains all new A Few Thoughts on Magistrate Judges in mediation techniques, and annual- ly conducts seminars for Magistrate and District Judges Settlement on the subject. While these excellent programs were certainly helpful in making the transition from media- Conferences tion advocate to neutral, success as a mediator also depends on one’s experience and practice. Having sent When I left the private practice of law a few years legal bills for more than twenty years, I can speak with ago and began my new job as Magistrate Judge, I knew some credibility to parties and their counsel about the that conducting settlement conferences or mediations cost of taking a deposition, writing a summary judg- would be an important part of my responsibilities, but ment brief, or trying a case. I think that is helpful in I have been amazed by both the volume of such pro- getting cases resolved. By the same token, the fact that ceedings and by the challenge they present. I get to conduct settlement conferences in a federal Although I practiced law in Roanoke for twenty courthouse also helps get parties motivated to settle years before moving back to federal court, I had not had cases. any experience in conducting mediations. Certainly, I In considering whether to seek a settlement confer- had participated in dozens of them, both in proceedings ence in federal court, it goes without saying that it is of conducted in federal court by the Fourth Circuit primary importance to know the practice of the District Mediator or Magistrate Judges and with private media- Judge trying your case. Here in the Western District, tors, but I had not conducted any myself. Over the past each District Judge approaches convening a settlement three years, I have conducted well over one hundred set- conference differently, and you have to investigate what tlement conferences and consequently have learned each District Judge expects in that regard. Many much about the process from the perspective of a neu- District Judges address settlement conferences in their tral. I hope the following observations will help those pretrial orders, so that is a good place to start. If the who are preparing themselves and their clients for set- pretrial order does not address settlement conferences, tlement conferences.
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