Investigation of the Case

• Author: Michael J. Morse
• Pages: 369-408

CHAPTER 6

Investigation of the Case

I. Introduction

§ 6:10 Role of Investigation

§ 6:20 Role of Investigator

§ 6:20.10 Sample Transmittal Letter to Investigator

§ 6:20.20 Sample Investigation Report Form

§ 6:21 Role of Professional Engineers

§ 6:30 Role of Attorney

II. Gathering and Preserving Evidence

A. Testimonial Evidence

1. Witness Statements

§ 6:40 Witnesses

§ 6:41 The Role of the Police Officer

§ 6:50 Expert Witness Statements

§ 6:60 Preserving Statements

2. Depositions Before the Lawsuit Is Filed

§ 6:70 Introduction

§ 6:80 Sample Petition for Perpetuation of Testimony

§ 6:81 Motion to Preserve Evidence

B. Non-Testimonial Evidence

§ 6:90 Videotapes

§ 6:100 Photographs

§ 6:110 Diagrams

§ 6:120 Computer Programs

§ 6:120.10 Simulation Model of Automobile Collision (SMAC)

§ 6:120.11 Simulated Linear Accident Momentum (SLAM)

§ 6:120.20 Other Computer Model Programs

§ 6:120.30 Admission of Computer-Generated Videographics

§ 6:120.40 Virtual Reality Videotapes

§ 6:120.50 Collision Analysis

§ 6:120.51 Seat Analysis: Unsafe Design

§ 6:120.52 Crashworthiness Analysis: Vehicle Rollovers

§ 6:120.53 Mechanisms of the Injury in Collision Cases

LITIGATING NECK AND BACK INJURIES

n

6-2

§ 6:120.54 Sample Discovery Request Regarding Accident

Reconstruction

§ 6:120.55 Using Textile Plastic Fusing for Accident

Reconstruction Investigation

C. Public Records

§ 6:130 The Power of the Freedom of Information Act (FOIA)

§ 6:140 Reserved

D. Discovery Considerations

§ 6:150 Federal Rule of Evidence Mandatory Disclosures

§ 6:160 Supplementing Discovery Responses

§ 6:170 Expert Witness Chart

§§ 6:180 – 6:190 [Reserved]

III. Checklist

§ 6:200 Chapter Checklist

IV. Appendix

List of FOIA Contact Information

n INVESTIGATION OF THE CASE

§ 6:20

6-3

I. Introduction

§ 6:10 Role of Investigation

The difference between a major recovery in a

neck, back or brain injury case and a disap-

pointing loss can be the effectiveness of the

investigation. Proper and thorough investiga-

tion can give you the proper defendants to sue,

the proper causes of action on which to rely,

the witnesses you need to prove your case and

the evidence you need to establish liability and

damages. Without proper investigation, no mat-

ter how clever, imaginative, skilled or hardwork-

ing you are, the results will not be as successful

as they could be.

A thorough investigation can also help you deter-

mine whether the case is an appropriate one to

take. The client’s story may sound convincing and

the damages may be real. The theory of liabili ty

may also seem to make sense at the initial inter-

view. Once initial investigation is undertaken,

however, witnesses may provide state ments that

implicate the client as a contributing cause or

exculpate some or all potential defendants.

Therefore, before making a firm commitment

to take the case, if it is at all feasible, do some

initial investigation. This can be accomplished

either through your in-house staff (yourself,

other attorneys, paralegals, etc.) or through

professional investigators. The small amount of

time and money involved will generally be well

worth the effort in the long run. If the case is

a good one, the work will have had to be done

anyway. Conversely, if the case is a bad one,

you can come to that conclusion promptly and

refrain from undertaking further unproductive

employment.

By thoroughly investigating the case before

suit is filed, remember that all you are doing

is what the defendants do. Usually, insurance

companies have their adjusters on the scene

immediately to gather evidence, to take witness

statements and to make initial evaluations of

liability and damages. It is amazing how quickly

insurance adjusters and defense investiga-

tors are on the scene. Accordingly, they have

a “jump” on the plaintiff and are immediately

geared up to prepare the defense. Therefore, the

same kinds of proper investigative tactics that

the defense is using should be undertaken as

soon as possible by the plaintiff’s attorney.

Finally, counsel must carefully preserve evi-

dence that is gathered during the investigation.

If evidence is lost, destroyed or misplaced, it is

just as bad as if there were no evidence at all.

Practice Tip

Although there are a variety of

approaches to the investigation of

the soft tissue injury case, the key

words are immediacy and organiza-

tion. Without immediate and orga-

nized attention, witnesses disappear,

evidence is lost and the chances for

recovery diminish.

Practice Tip

Do not wait until a lawsuit is filed to

begin talking to witnesses. This can

sometimes include some of the defen-

dants you are planning on suing in the

future. As long as ethical, shore up

your liability early, maybe even before

you send your letter of representation

to the defendants or insurance com-

pany representatives.

§ 6:20 Role of Investigator

It is not always as important who investigates

the case as what is investigated and how the

investigation is conducted. Some attorneys

always use professional investigators. Others

rely solely on office staff, such as younger asso-

ciates, paralegals or in-house investigators.

When properly managed and supervised, any

of these “investigators” or “evidence gatherers”

can be used effectively, economically and pro-

ductively. Generally, the key to effective investi-

gation is control over the investigator. Another

key point is that the investigation should be

started as soon as you are retained. Memories

fade, cars get repaired, and evidence disap-

pears quickly. Time is not on your side when

it comes to investigating your case.

In most cases, the investigator is not an attor-

ney. You may know exactly what you want to

look for, how you want to document what you

find, and how that piece of evidence or witness

statement will fit perfectly within your theory

of the case. The people you have investigating

the case for you may not have the same insight

into the case. In most cases, they will not.