Here is a recent presentation I gave to a paralegal continuing education group and I thought my readers might find the material interesting.
Investigating and Evaluating a Personal Injury Claim
By Christopher M. Simon, Esq.
Personal injury cases come in all sizes, but I generally classify them into three categories:
Class III is a garden-ariety soft tissue auto accident case.
Class II involves a more significant injury including fractures, ACL tears, Meniscal surgeries and Scaring cases.
Class I is a complex or catastrophic case. I could go on for hours about these. For today, we will focus primarily on Class I and II.
I. Obtaining Information from/about the Plaintiff.
Let us assume that the client has signed the contract, and you have a comprehensive intake form. The first thing you want to do is call the client on behalf of the lawyer and begin to build the rapport that is the foundation for trust between lawyer and client for the rest of the case.
A strong paralegal brings various skills to the client management relationship, but paramount among them is honesty, persistence and returning calls. Let me say this again, if you blow clients off, you will make the lawyer’s life and your life hell.
Get to know the client in that initial phone call. Ask about their:
1. Kids and grandkids: did the accident interfere with playtime and childcare.
2. Their job and how the accident affected it.
3. Their hobbies and vacation plans how did it affect it.
4. Prior injuries and accidents.
5. Their prior experiences with lawyers or personal injury suits:
a. Many of my clients have friends or families who have been through this situation before, and they have preconceived notions about the value of the case or timing or what is good lawyering. By exploring those expectations, good and bad, you can provide better service to the client and reduce the number of headaches for the attorney down the road.
b. Many clients get confused between workers compensation cases and personal injury cases; be sure to explain the differences.
By the end of the phone call, you should be able to tell the lawyer the “story” of the client.
“She was a hard-working cashier at Wal-Mart that lived in a $500.00 a month apartment with her 3 year old, and when she went out of work due to the accident, they were evicted.”
“He was on the flight home from his Honeymoon in Hawaii when the wine bottle rolled down the aisle, cutting his finger to the tendon. The pilot could not land the plane, so they flew for 8 hours with him holding a towel to staunch the bleeding and without pain killers. He was a national champion skydiver, and the finger was never able to recover which led to problems pulling his parachute.”
A detailed initial conversation will accomplish several things:
1) Make sure you know every doctor the client has visited.
2) Make sure the client trusts the firm by demonstrating attention to detail.
3) Make sure that there are no other potentially liable parties and that any necessary ante-litem notices are sent out.
4) Make sure that you are aware of any and all prior injury claims and explain that the Defense has access to the ISO index claims database. You need to know what the defense knows.
5) Immediately contact eyewitnesses identified on the police report or identified by your client.
6) Get the client to take photos of the damage to their car, and email it to you. If they have other photos of the location damage or injuries, collect these as well.
7) Talk to the client about whether they have health insurance or Georgia Medical payments insurance, and advise them on how to make sure that health insurance is paying out first if they are without Medpay.
8) Determine what Underinsured Insurance Coverages may apply and put them on notice.
When you are finished, you should be able to sum up the case in a paragraph. “This is a moderate damage auto collision. Liability is clear. ER, PCP physical therapy. Meds total $4,500.00. $300.00 in lost wages. Venue is in Cobb County.”
The Defense paralegal is at a disadvantage. You will usually be receiving the case after suit has been filed and discovery is long closed.
1) Use inexpensive resources like www.Accurint.com and Westlaw to run a criminal background check on your client and the Plaintiff.
2) Google your client and the plaintiff to see if there is damning Myspace page or other like material. If it is a Class II or III case, do some internet digging and see what you can find on the incident. I have had many cases with news video online. More on this later.
3) Call the Defendant and learn the “story” of the defendant. Get to know them so that you can help the lawyer develop rapport and make them sympathetic at trial. Make sure the defendant sends you any discovery that may have been served upon them.
4) Call the adjuster and make sure that they sent you everything that they got including the complete demand package. This will save you time on collecting the medical bills.
II. Using Investigators
Investigators are expensive and should only be used in the appropriate case. For modest value cases, it is more cost effective to use online systems like Accurint to do basic investigation. As the value of the cases rises, the calculus changes, and you should consider a hands-on criminal records check and surveillance.
With online systems you can check:
1) Address and relatives
2) Criminal Background
3) Prior Lawsuits
4) Real Estate Owned
For the defense, I suggest that you wait until after the deposition of the plaintiff to allow them to pin themselves in on their activity level and then send out a surveillance team if the case is serious enough.
I have worked with several surveillance teams over the years, and you must be choosy. Establish a relationship such that they will not sit outside the Plaintiff’s office all day billing you for the time. You want a private eye that will get creative and approach on the weekend when the Plaintiff is likely to be doing yard work or playing golf. Many a serious plaintiff’s case has been destroyed by effective surveillance showing the plaintiff carrying yard equipment, bending over and acting as though they do not have a care in the world.
III. Identifying and Locating Parties and Witnesses
When tracking the Defendant, start with the accident report and then run an Accurint search to verify the address. If that does not work, then go to a private eye that you have built a relationship with. It goes without saying that you should not wait until the last minute to file suit as you do not want to learn about other potential defendants too late. Don’t let the attorney get you into this position as it will be you that she asks to run around at the last minute solving problems that could have been avoided.
At the beginning of the case, examine liability from all angles. Look for non-obvious defendants. For example, in car wrecks involving alcohol, see if you can determine where the driver was drinking to determine if there is any Dram Shop exposure for the bar. Look at roadway design issues for standing water cases.
Slip and fall cases can often have third-party vendor involvement as in events occurring at Hartsfield where the airport subcontracts the cleaning out to various vendors. Escalator cases frequently involve repair and maintenance companies.
With regard to witnesses, start by looking under the witness section of the accident report, and do it immediately after the case comes in as addresses and phone numbers change. For serious Class II and I cases, get to the scene. If it’s a crash; drive out there. If it’s a premises security case or a slip and fall, then walk the area. Look for cameras, store owners and neighbors that are home at the relevant time of day. In a recent case involving the death of a young man who was run over by a tractor trailer, we were able to track his movements down the streets of Columbus Georgia by simply asking for copies of the convenience store surveillance tapes from the adjacent stores.
For intersection collisions, more and more intersections are equipped with cameras that shoot a photo of the offender in the act. These records are accessible with an open records request. Do your homework and go to the scene. It is never a wasted trip as you will spot line of sight issues, glare issues, curves in the road and all manner of facts that are not obvious from the accident report.
For Premises Security cases, scour the internet. www.Apartmentfinder.com is famous for having reams of complaints in their files from tenants griping about crime and security issues, and some of them are angry enough to talk. In a very minor bed bug case, I was able to collect complaints from www.tripadvisor.com regarding bug infestations at a particular hotel that carried the day when the insurance carrier tried to argue that they had no prior notice. Take Erin Brokovich’s techniques in the movie to heart. A knock on the door can yield a treasure.
The advice is the same with regard to tracking down witnesses and evidence; it just gets a lot harder when you don’t get the case until two years after the incident. If it was a serious event, search the internet for newspaper articles or TV News videos that may be posted. The more serious the event, the more likely it is that you will find information on the internet.
In one case that I had, the plaintiff was a potter. I “Googled” his name and found his postings on Pottery.org where he posted with his email that he had thrown out his back while lifting a kiln one week before the collision that he sued my client over. The Judge in Rising Fawn, Georgia was a little surprised by the evidence, but once the plaintiff authenticated his email address and admitted that the post was his, the judge found for the defense.
V. Investigating and Documenting the Incident
Go the extra mile!
1) Get the photos of the collision from the insurance carriers and photograph the scene yourself if it is a serious case.
2) For Class I and II cases, send an open records requests to the police department for the dashboard cameras and any other handwritten notes in the officers file. This is especially true for State Troopers who maintain more complete files. If the collision is a serious one, be sure to acquire the SCRT report.
3) For complex liability cases, get the 911 tapes and track down the eyewitnesses on the tapes.
3) Order all of your client medical records including two years prior to the incident so that there are no surprises.
4) In cases where the weather is an issue, order the surface date certified from http://www.nws.noaa.gov/. It can be introduced into evidence if certified to prove foggy or rainy conditions.
VI. Interviewing Witnesses
A friendly approach is always the best. Many witnesses will assume you are calling as your client is fighting the traffic ticket, and they will be more sympathetic so do not feel the need to correct them. Don’t lie, but don’t feel compelled to go into details. Listen more than you talk, address their concerns about “getting involved” and win them over by being genuine and direct.
First, find out what they saw and what their viewpoint was. If they are opposed to your client, probe gently to see how hard they hold that view but do not anger them. If they are on your side, send them a written statement form and explain that the form is in the mail with a SASE and just ask that they fill it out and mail it back as that will ensure that the matter gets worked out early without them having to have any future involvement. Above all, treat them with uber-sweetness. No one wants the headache of dealing with litigation.
Send an open records request for the 911 tapes as there will often be eyewitness information contained on those tapes that the officer never heard about.
Interview the investigating police officer. Police officers are difficult to reach, but with a little persistence and kindness, you will be amazed at how accessible they can be.
Normally for the defense, you are dealing with a situation where the officer cited your client. You can start off by letting the officer know that the other driver has sued your client for money, and this will normally gain sympathy from the officer. Explain that they have been sued, and you only want the client to get a fair shake. In most instances, the officer will not be allowed to testify about their opinion on who caused the collision anyway so your true focus is to look for facts they may have overlooked.
VII. Obtaining Information on Damages
You will send requests to your client’s insurer for their repair estimate and any photos. With regard to the other driver, sometimes the insurer will voluntarily send it and sometimes not. Follow the above advice with regard to getting photos of all vehicles. For plaintiff’s practices, if it is early enough and the case is serious enough, make some calls to the wrecker service and find out where the cars are being towed. If the case has significant value, go take photos of the vehicles. Listen carefully to the client on what they remember to be the damage as sometimes the seat is broken, and that is a good piece of evidence on neck and back cases.
Medical Bills and Lost Wages
Get a detailed list of the medical care and the lost wages in the first interview. As the case proceeds, verify on a regular basis where the ongoing care is. When it comes time to send the demand package, go through the medicals with the client a final time. Nothing will make a client angrier and damages a case faster than failing to include critical medical bills.
Some clients are more willing to be involved than others. If your client is
intelligent and industrious, explain to them that they can often get their own medical records from the doctor without the same charges a lawyer will face. For Class III cases, saving money on expenses increases the client’s ultimate compensation and the client will appreciate it.
For Class II and I cases, look for unusual demonstrative exhibits. If you client is on huge amounts of pain medications, ask them to save all of the empty bottles. Your lawyer can then bring them into court in a see-through bag to demonstrate how much medication they have had to consume as a result of the injury. This applies to casts, TENS units, back braces, etc. Encourage your clients to photograph and videotape the activities that have been made more difficult. For the catastrophic case, your attorney should invest in a professionally shot video showing the physical limitations facing the client.
The most important part of any injury case is the human element. Be prepared to tell your client’s story and how the injury changed their life. If you cannot conjure a compelling story, you cannot help your client to maximize the recovery.
The defense firm will typically get the photos and estimates from the insurance carrier with little or no effort. If the carrier did not do this, you should send a spoliation letter to the Plaintiff as soon as litigation begins on the chance that the vehicle was never repaired. If the property damages were low, you will then have the opportunity to inspect and photograph this valuable piece of evidence. If they fail to preserve it, you will be entitled to a spoliation charge.
If you remember nothing else from this discussion, please remember this; take ownership of your cases. Know them inside out and anticipate problems and you will never go wanting for a job.