You need to have a game plan going into litigation regarding your discovery.
In journalism class back in college, I recall they discussed the pyramid approach to writing: many readers just read the headline, and if they choose to read the article, they might read the first paragraph. Then, if the subject was interesting, the reader might read the whole article. Therefore, we were trained to get critical information at the top of the article.
As a commercial litigation lawyer in Los Angeles, I often think in terms of the pyramid. Do we get the best information in this case by starting with the workers, say in a parking lot accident case, and then go up the chain of command? Or, do we go with an inverted pyramid approach, like in a bad-faith case, deposing the policymakers first to establish the rules which should have been followed, then work our way down to the field representative, who was never trained in following those rules?
There are, of course, many weapons at our disposal: Requests for Admissions, Requests for the Production of Documents, special interrogatories, depositions, and investigations. You need to strategize initially on what is the best method to proceed with your case sequentially. A thoughtful strategy practiced by employment attorneys in Los Angeles will lead to evidence-gathering momentum and effective resolution. Having no strategy is a bad way to go, once the litigation war has started.
Remember, know the law of your case right from the beginning. Read the jury instructions you will ultimately have to prove. Establish those elements in the depositions and written discovery.
Gathering evidence
Simple as it sounds, obvious as can be, nonetheless it all starts with gathering the evidence, and the best time to do it is while it is fresh. Gathering the evidence is a broad topic, but let’s break it down to some basic scenarios as a form of a checklist, according to Nakase business lawyer in San Diego.
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Auto cases
In the automobile case, you’ve been hired by someone who was rear-ended. They are hurt. You get the call days later. As a trial lawyer, the first thing I do is ask myself, “What will my experts need? What is the evidence?”
It starts with your client’s car. Get to the vehicle and photograph it thoroughly. I think you need to choose, depending on case value, on hiring someone to handle this task or doing it yourself. I’ll share how I do it myself I use a digital camera and sometimes film. In either case, do a perimeter photo shoot in good lighting?
Start with the front, and take photos of all four sides. Get the corners also. Get up on a ladder, if available, to document intrusion and deformation. Get under the vehicle, if possible, to show undercarriage damage and to document other hard-to-see damage. Open the trunk if it’s a rear-ender; see if there’s damage in there. If there are broken parts, document them with photos also.
Finally, take interior photos showing any witness marks of body impact to the steering wheel, dashboard, roof, etc. There may be some bloodstains, hair stuck in the vehicle documenting impact, etc. Inspect the seatbelts. Photograph them completely on both sides to show witness marks, such as impact loads from the person straining against the belt. Look at the D-rings to see if there are any “Burn” or striations, as well as scratch marks visible there also. See if the belts are functional Check to see if airbags deployed- Document them also, to see if any impact marks remain.
Continuing your observations, check the tires for any impact damage. See what parts are broken. If it is a big value case, hire a skilled accident Reconstructionist to do all this for you. There may be mechanical issues that caused the accident or extensive damage a lawyer would simply miss. A Reconstructionist with knowledge of the injuries can formulate working theories that can help you in many ways. Some examples include noting things like hidden bumper damage, intrusion into the engine compartment, or occupant compartment impact damage that a less-skilled observer would miss.
Next, consider securing the vehicle. Depending on the value of the case, you may choose to store it with your client, or if it is a significant value case, and especially if there may be surface product liability issues, secure the vehicle at an evidence storage facility.
Think “chain of custody,” from the scene to the storage facility. Photograph the vehicle before and after it is moved. Hire a skilled transporter to move it from the tow yard to the evidence storage facility. A document that nothing changed.
Sometimes potential evidence is missing: tires, roofs, doors, belts, etc. This can occur through fire department efforts to save lives at the scene, through the impact itself, or careless handling by police agencies or insurance companies. In any event, get on this early. Track down every part and secure it with the vehicle.
Often you don’t realize what importance there was to a seatbelt, for example, until much later when experts get involved. Secure it early and save your worries.
Next, document other involved vehicles. Did the police take photos? This is noted in the upper right corner of CHP TCR reports and the same location on the TCR by most police agencies. Get a copy of their photos. Insurers take photos also. Body shops also take photos for the insurers in many cases. Make sure you also get mechanical inspection records and any evidence for all the involved vehicles.
The damage on each vehicle is “matched up” by accident Reconstructionists obtain scientific analysis estimates through programs like PC Crash EDS- MAC and other programs. These applications can extrapolate things like impact forces, areas of impact, the principal direction of force, whether there were rotational forces (often very important for injury analysis), delta V relative speeds, and other numbers and measurements. Far down the road, this analysis may convey information to jurors explaining what .10 of a second of typical impact was like for the occupants you represent.
Think about getting visuals. You can obtain, for example, NHTSA NCAP studies from George Washington University on just about any vehicle showing frontal, rear, and side impacts of 30 to 35 mph. This can be a great visual if your client’s accident replicates speeds like this. Do some Internet research through NHTSA, IIHS, and other entities on the crashworthiness and safety testing ratings for the involved vehicle. This is often relevant to the injury analysis also.
You might want to do a surrogate analysis (putting someone of similar stature in the vehicle or an exemplar (similar) vehicle to see how they would adjust the seat, where the belt would fit, how they would move, and what they would contact, etc. This analysis is something to discuss with your expert and has everything to do with how big your case is. How complex or discrete the issues are for the reconstruction, and your budget. What experts attend such as a reenactment or surrogate analysis is completely the product of your brainstorming with the experts.
Go to the scene and look for accident-related debris, skid marks, etc. Document the signage, the phasing of the lights, and the visibility for each driver, and get a feel for what the minute’s pre-impact was like for the involved vehicles. Sometimes at the scene, you realize you might have a government claim for road design or a malfunctioning light, or you might get a better understanding of why someone turned left and felt they were safe.
You should go to the scene at a similar time that the accident occurred to observe the speeds people drive on that road and to observe the traffic patterns. It might be that the sun shines brightly into drivers’ eyes. There could be optical illusions from tree shadows. It might be an area with great distractions for drivers. By going to the scene you can learn a ton. Photograph and videotape this inspection. And again, if the case warrants it, go there with a trusted investigator or an accident reconstruction expert. At the scene, you can also find witnesses, or check with local businesses or residents to see if they know witnesses. You can also learn a lot about the area, accident frequency, etc. from locals at your scene inspection.
Secure your photos and videos early. Put them on your laptop if you can. You can use this evidence in mediation briefs, trial briefs, depositions, for your experts, and at trial.
You can also obtain intersection diagrams and phasing charts for the lights from the municipality or government that controls the area where the accident occurred.
Don’t forget to meet with, or at least call, all the witnesses: be they police, fire, EMTs, passers-by, or passengers. Document what they say. Get statements when possible, signed by those people to lock in their observations. However, be cautious in how you approach people. By asking for a statement before they have established a willingness to express themselves, they might dislike you (Really! People often don’t like lawyers!) And clam up for good. This is why many lawyers use investigators or staff to take such statements, so they do not taint or intimidate the witnesses. Also, by using others to gather this information, if they need to be a witness themselves down the road to what people said, they are available.
Premises cases
Go to the scene and document the conditions before they change. Why was your client hurt? Lighting, surface friction? A defect on the ground?
Premises cases are incredibly varied, so the word to the wise is to capture the conditions your client was hurt by as exactly as possible. An expert is very useful to measure lighting, and friction, considering code violation, and other potential theories of liability arising from a premises case. Often you can do this any time because it is a public place. Look into this. See if permission and notice to the defense are required.
Product cases
Make sure you document and, if possible, take possession of the product. Are there OS HA reports? Past incidents of product failure? Other lawsuits involving similar failure modes?
Product cases are very complex and expensive. Groups like the Attorney Information Exchange Group and ATLA are very useful in networking lawyers and cases together. Other sources to consider are consumer groups like Public Citizen, Public Justice, and others dedicated to helping make safer products. Also, some experts assist in researching product issues, like Sean Kane in Rehoboth, Massachusetts, Longacre in Maryland, and many others. Ask lawyers who do a lot of product work, and you might be pleasantly surprised at how helpful they can be.
Choosing the right expert
Choosing the right expert is a multi-faceted challenge. You’ll need to consider several questions to make the right decision. “What are my theories of liability?” “What are my injuries?” “What is the venue?” “What is my budget?” Experts are very expensive, and you need to think before you leap into expert analysis because the costs soar so fast your head can spin. You need to fit the experts to the size, type, and location of your case. Many lawyers defer expert analysis until settlement talks have fallen through to contain costs. The risk of this, though, is not understanding your case’s weak and strong points as well, and not having expert aid in the discovery process. This may or may not matter. The more experienced the lawyer, the easier this judgment can be.
The CAALA Listserv is an invaluable source for expert analysis. Having Mike Aider’s number on speed dial is also useful! Seriously, we all can help each other find the right experts. Many qualified experts appear at our Las Vegas Convention every year. Others advertise in this magazine. You can research jury verdict reports and see who the other trial lawyers are using. Call them up and discuss their experiences. The best expert for a big case might stink for a straight rear-ender with orthopedic injuries. The right expert fits your case, and your budget, and works well in your venue.
Piecing it together
You preserve the evidence, you do your discovery, you get evidence from the other side, other lawyers, public sources, and then you figure, what will I do with this? Is this a settlement case or a trial case? Do I want to spend money on animation? Do I want blow-ups? A PowerPoint presentation? Do we need more research? Do I need a different type of expert, or to add on; for example, experts in occupant kinematics, biomechanics, and injury causation? Perhaps, a lighting person, a code violation person, a maintenance expert, a tire expert, etc.? Think this through.
In reconstruction, you need a full analysis and understanding of the mechanism of injuries (occupant kinematics & biomechanics) and the physics of the accident itself (forces, angles, deformation of vehicles, environmental factors). Your goal, after all, is to fully understand the accident so you can effectively communicate it to someone who doesn’t know or care about it.
Your task will be an attempt to make the facts come to life, be interesting and easily understood, so you can attain a settlement, or if it is before a jury, justice will be served as you explain the case to them through your experts and witnesses. Sit with your expert and piece it together. Often you will need to push your expert to make your case important to him or her. As Charlie O’Reilly would often tell me, “I want an expert who wants me to win!”
The scientific analysis
Lilies are what you pay for. Decide early on if you’re going to get the scientific analysis in writing, in a report, or orally. The upside of a report is that you can use it in mediation and share it with other experts. The downside of a report is two-fold; it costs extra, and it locks in your expert with certain opinions and conclusions. Most trial lawyers prefer to keep things oral as long as possible so the scientific analysis can be amended as the evidence and case develop. Many experts, especially those from other states or who do federal work, are used to (long what is called a Rule 26 report. Be clear with your expert about what you intend to depend on and what you want as far as analysis in the scientific analysis.
Break experts down on the cross
You haven’t outsmarted a doctor on the mechanical engineer on the numbers, etc. But you can expose their bias, their slopped the treatises they did not rely on, or’®®^ ideas they did rely upon which they neglected to mention. You can expose that they spent only 10 minutes researching the speeds of impact without seeing any evidence aside from photos, or never saw the car, or never went to the scene, or spoke with Sheriff Smith, etc. You can show that they often come to the same conclusions with the same lawyers.
Trial smith is a great source of videos on other experts. Others exist. Get that information and call up lawyers who have cross-examined the expert you’ll take on. Oftentimes they are on a mission to help other lawyers take that lying defense expert down.
Your expert may be a great source of cross-examining their expert also. Make sure your expert gets your deposition of their expert. The defense often matches a biomechanics expert with their reconstruction expert. They have often worked together, and you can expose that. Watch the biomechanics trying to say the accident could not be injury-producing. That is a topic for a whole different article, but always keep in mind that much of that analysis the defense offers is junk science and can be dealt with very effectively in limine or through a 402 hearing and never has to be heard in front of a jury.
