CASES ARE WON OR LOST IN DIRECT PROPORTION TO THE AMOUNT OF TIME SPENT
IN PRE-TRIAL PREPARATION.
1) A prompt and thorough investigation is necessary. It borders on
legal negligence not to hire an investigator immediately.
Some things an investigator will do:
- speaking with and obtaining statements from witnesses
- taking photos of the scene
- preserving evidence (which may require you to get a court order to
preserve the evidence)
- getting police and coroner reports
- getting tax records and property ownership information
- obtaining the prosecutor's file
- buying exemplars
Also consider having your investigator videotape the scene, witnesses,
ect.
2) There are certain things you must do and cannot rely on your
investigator for:
- go to the scene of the accident
- visit the intersection where the crash occurred so you are familiar
with it
- in a product liability case, go to the plant where the worker was
injured. Learn how the machine works. Bring your engineer. Have them start
the machine and explain how it works. You will need to explain it to the
jury and show how your client's hand was able to get pulled into the
machine.
- if you have problems getting into the plant contact the worker's
compensation carrier. They are granted access to the employees job site
and can help you get in there to conduct your investigation.
- in a slip and fall, make sure you test the floor immediately after
the fall for slip resistance. If you wait and the defendant changes the
floor before you test it you may have a malpractice case on your hands.
3) Take a thorough initial interview. Make sure you know all there is
to know about the accident and your client.
The National Clearinghouse for Bodily Injury Claims has an index system
that allows you to discover prior bodily injury claims made by your
client. By using this service you will be assured that your client has
revealed all prior injuries to you and will know what you adversary will
find during discovery.
Their phone number is 908.388.0332. The cost is $15.00. The will send
you the form that must be signed by your client in order to get this
information.
4) Conduct an aggressive discovery plan, including:
a) Interrogatories, including customized questions pertaining to the
specific case. Do not rely on boilerplate questions.
b) Request for Production of Documents.
Pay special attention to the specific product involved if its a
products case. Get alternative product designs, patents, plans, and
specifications. This information is available through NHTSA, ATLA
Exchange, ATLA Advocate, ATLA NET, AIEG, and Depoconnect. There are
other documents available from the government, depending on the type of
case, for example, the Department of Transportation has wonderful data
if you have a tractor-trailer case.
In medical cases, get all records of any kind. Try to get self
critical analysis committee reports, peer reviews, policy and procedure
manuals.
c) Request for Admission. Probably the least utilized device. The
length of trial can be shortened by getting the defendant to admit
things in advance. The nice thing is that if they deny the request and
you have to prove it, you may get costs and if they don't respond, it is
deemed admitted.
d) Depositions. Take depositions of fact witnesses, consider experts,
police and emergency personnel, corporate representatives, before and
after witnesses, consider other similar incidents witnesses. Consider
pros and cons of videotape, even without defense counsel.
In medical malpractice cases, you should serve your deposition
notices, interrogatories and requests for production of documents when
you serve the complaint. This will give you the upper hand in discovery
and allow you to conduct depositions early on when the defendants are
less familiar with the case.
Also in medical malpractice cases, if a defendant does not file an
answer, take a default immediately. Then only agree to vacate the
default when they consent to producing the defendant for a deposition.
When deposing the defense expert, try to find out as much about him
as possible. Contact all of the attorneys you know and ask them to send
you depositions they have done of this doctor. Take advantage of other
services that are out there such as DepoConnect. They have a vast
library of depositions that have been taken by attorneys throughout the
country.
The phone number for DepoConnect is 1.800.443.1757. Their web address
is http://www.depoconnect.com
e) Pre-trial Motions. File motions to compel discovery or depositions
as often as necessary and when the discovery deadlines are not met. Keep
the pressure on and let them know that you will not allow delays.
f) Trial Exhibits. Must be professionally done with a smaller version
provided to the defense attorney and/or adjuster.
Use blow-ups and time lines. This is the only way to easily convey
your message to the jury. It appeals to all of the senses and will
ensure that the message you are sending isn't forgotten.
g) Focus Groups. Must be done in bigger cases and they can be done
relatively inexpensively.
Litigation Groups. In bigger cases form litigation groups with other
attorneys handling similar cases. These will prove to be invaluable for
exchanging ideas and theories. You can also do focus groups with the
other people in your litigation group. This will allow you to do more
focus groups while spreading the cost around.
h) Trial Notebook. This must be done. Also meet with experts, plan
schedule. Prepare voir dire questions, jury instructions, witness list
and exhibit list. Consider using a jury questionnaire, research
applicable case law, summarize deposition testimony, prepare notices in
lieu of subpoena.
i) Motions in Limine. Consider what you would like to keep out and
prepare such motions in advance. Also, prepare a verdict sheet. Remember
to try to help the trial judge as much as possible and he or she will
appreciate you efforts and know that you are serious about the case.
5) There are a number of videos that can be used to help prepare your
clients and put them at ease about the litigation process. The State Bar
of Wisconsin has a number of good tapes entitled:
- Preparing for Your Deposition
- Preparing for Your Compulsory Medical Examination
- Going to Court - this is a 2 part tape that explains what is expected
of the client and what the litigation process entails. It covers courtroom
personnel, direct, cross, proper attire and many other areas.
You can contact the State Bar of Wisconsin at 608.257.3838.
6) Visit you client's home before trial. Get to know the family and the
effect your client's injury has had on the family. How has it changed
them. This relaxed atmosphere is your best opportunity to get to know your
client, their family and understand their injury.
7) If you have difficulty getting medical records from doctors or
hospitals, you should write to the Board of Medical Examiners and ask them
to investigate the medical provider.
In most states, patients have a statutory right to their medical
providers. In New Jersey, N.J.A.C. 8:43G-15.3 outlines the providers
obligations. The New Jersey State Board of Medical Examiners, 140 E. Front
Street, 2nd Floor, Trenton, NJ 08608 will investigate any provider who
does not comply with the administrative code.
8) Other Similar Incidents - Try to get as much information from other
attorneys on similar cases they have. ATLA Exchange is a good source of
information. Also, within your own case, make sure you serve
interrogatories and notices to produce for other similar incidents on the
defendants.
9) Be sure to seek sanctions for any discovery abuses. Courts are more
inclined these days to sanction Honda, GM or other big company for their
abuses. The sanctions range from money to judgment in favor of the
plaintiff.
10) Always do multiple pre-trial preparations. Trials often get
postponed. Preparation each time will make you ready when the trial
actually comes.
Outline all the testimony of the plaintiffs and experts and share it
with them so everyone knows what to expect.
Outline, in general terms, the cross-examination that you plan to do of
the defendants and their experts based on their reports and depositions.
Always review the medical literature well in advance so that if there
is any information you plan to use, it is known to the defendants and they
are given proper notification.
Important Numbers
ATLA - 1.800.424.2725
ATLA NET - 1.800.424.2725 x308
http://www.atlanet.org
AIEG (Automotive Information Exchange Group) - 1.205.803.4000