How Do You Prove My Accident Case?
Whenever I meet with a client who has been badly injured in an accident, one of the first questions they often ask is "how will you prove my case?" The question is an important one because simply being injured, no matter how seriously, does not automatically lead to recovery of money through our justice system. There are three elements that must be shown in every personal injury case before the matter of damages – the "how much is my case worth" question – is even reached. The personal injury lawyer must show that:
- (1) a person who owed a duty of care to the injured person,
- (2) was negligent, and
- (3) that the negligence caused the injury or at least was a substantial cause of the injury.
A successful verdict or settlement depends on persuading the jury or insurance adjuster that all three elements apply to the case. Proving the elements of what is called "liability" and then showing how much damage the injuries caused the client, is the reason a personal injury attorney is hired.
Most personal injury cases do not involve complicated legal issues. While there are occasional exceptions, even a catastrophic personal injury case relies on well-settled legal principles. The key in winning is to develop the facts as thoroughly and compellingly as possible. The first step in developing the facts is to interview the client thoroughly. In some cases, a client may have an excellent memory of what happened, from the moment he saw the speeding car blast through the stop sign to the terrifying crash into his car. Often, though, especially in serious accidents, when the injured person may have lost consciousness or suffered a concussion, the client will not be able to give a complete version of what occurred, and may not remember anything.
If the injury case is a car crash case, the attorney should obtain the police report as soon as possible, as the police report often contains the names and contact information of witnesses. Once witnesses are identified, it is important the plaintiff's (the injured client) lawyer send his investigators to promptly speak to the witnesses and obtain their statements. As time goes by, memories fade. Moreover, the insurance company in a serious accident will always send their own investigators to obtain witness statements. Sometimes, the questions they ask may suggest answers to the witness that are not favorable to the plaintiff. Ideally, the lawyer for the injured client wants his investigator to see the witnesses first. A visit to the scene with photographs taken is also important and should be done before much time elapses. Scenes can change over time with construction or roadway changes. Pictures of the scene of the accident as it looked around the time of the accident can be powerful tools. In appropriate cases, I like to obtain aerial photographs of the scene. Sometimes, aerial photographs can give a view that cannot be matched by a land-level picture. In a case I recently handled, the driver of the car that hit my client, who was crossing and was in the middle of the street, claimed that he had poor sight lines. An aerial picture of the street showed that the street was straight, flat and wide for a considerable distance in both directions. A blowup of the aerial photograph was instrumental in settling the case at a mediation.
Depending on the nature of the case, the plaintiff's lawyer may want to retain an expert to view the scene, or if machinery was involved, to test the machine. In some accident cases, an accident reconstruction expert can recreate things such as the likely speed of the defendant's car before impact, whether brakes were applied or evasive action taken. Not all roadway accident cases require an accident reconstruction expert, but they can be helpful in the right case. In a premises liability case, whether involving a serious fall or a criminal assault, the plaintiff's lawyer will always want an expert to visit the scene to educate him on whether there were building code violations, inadequate lighting or other security measures and other factors that may have contributed to his client's injuries.
A great deal of the work needed to "prove the case" may be done before a lawsuit is ever filed. Once suit is filed, the injured client's lawyer has the entire trial preparation arsenal, some of which should be used promptly, while other tools may require the patience to wait to use the information developed in early discovery. In every case written interrogatories will be sent – these are questions, typically limited to thirty – sent to the other side, which must be answered under oath. As interrogatory answers are prepared by the party's attorney, I do not like to use them to ask "what happened." Interrogatories are very useful, however, to obtain basic factual information, such as a defendant's background, prior accidents, and similar questions with subjective answers.
A powerful tool is the Request for Production of Documents, which can also be used to obtain access to a defendant's premises (if the accident took place on private property). In a car crash or car-pedestrian accident case, for example, plaintiff's lawyer may always want to obtain the defendant's cell phone records to see if the defendant was using his phone at the time of impact. Unfortunately, distracted driving is often the cause of serious accidents. Subpoenas can be used to obtain documents from third parties, if they may be relevant to learning what happened.
The most important litigation preparation tool is the deposition. Any person who may have knowledge relevant to the case, can be required to testify under oath as to what they know. Cases are often essentially won if the deposition of the defendant goes well. Depositions of witnesses can also make and in some cases, break a case. In serious accident cases in which depositions strongly favor the plaintiff, a strong pre-trial settlement is likely.
The answer then, to the title question, "how do you prove my accident case," is for the plaintiff's lawyer to dig deep into the facts, to be thorough and creative in his investigation, and to never rest until he understands what happened and can prove it with the evidence.