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The First 100 Days

By Kari Santos | Jun. 2, 2010

Expert Advice

Jun. 2, 2010

The First 100 Days

When the biggest case of your career walks into your office, will you know where to start? Even if you have a bustling practice, you can't treat this case the same as all the others without the risk of setting yourself up for failure or, at the very least, a mistake that could cost you and your client dearly. Attorneys who are not familiar with catastrophic personal injury cases must proceed carefully and be flexible.

Because the stakes are so much higher in a catastrophic case and immediate action is needed, you will likely need to reorganize your practice and devote more time and resources to it. In fact, crucial information often comes to light during the first 100 days after the accident that gives rise to a claim.

Investigate Early
Early investigation is key to success in a large personal injury case. As plaintiffs counsel, you may have the advantage of speaking to witnesses before the other side does. Honest witnesses often tire of speaking to investigators after the first one; and more important, you'll need their help to locate other potential plaintiffs or defendants.

During the initial investigation, consider each of the injured parties and whether they should have joint representation. Though strategically it could be in your client's best interest for you to represent everyone, you must analyze potential conflicts to determine whether your client would be better served if the plaintiffs have separate lawyers.

Jurisdiction and Venue
As you consider possible defendants, think about jurisdiction and how each of those defendants could get the case into the court you prefer. In most cases, the opportunities for a defendant to remove the action to federal court are few and far between. If you find low-liability defendants whose presence in the case will defeat diversity jurisdiction and keep your case in state court, it would be counterproductive to settle with them, even if they are anxious to do so.

Identifying all possible defendants early will also give you more choices for venue. In most states, choosing the site of the trial is a great advantage, and it's in your hands. In California, the plaintiff has a choice of filing either where the accident occurred, or where any of the defendants resides or does business. More defendants can mean greater opportunity to choose a venue that has few biases against, or inconveniences for, the plaintiff.

Resist Easy Money
As you investigate, avoid the common pitfall of agreeing to a quick settlement. In the early days of the case, you may not have discovered all the potential defendants yet. After all, you have only limited information: no depositions; no interrogatories under oath; and no incentive for identified defendants to provide key information about other parties who may also be liable. Do not give up a $5 million case just to get an easy $15,000 from a defendant's limited insurance policy.

Once you have identified approximately 80 percent of the core information, file your case quickly. Ferreting out that last 20 percent of the evidence could take another year or two. Even basic police reports can take many months to complete, and your client can't afford to lose that time. Catastrophically injured plaintiffs often confront mounting medical debt and ongoing future-care needs. For their sake, justice must move quickly. In most cases, 60 to 100 days should be adequate to gather the most important facts. Keep in mind that while you are investigating, the potential defendants will likely be doing the same thing. Filing promptly will keep you on the offense, sending an important message to the defense that you mean business.

Before discovery begins, defendants may well be eager to settle to reduce their liability. But this is not the time to settle a catastrophic injury case. Wait until the action has been filed and you have access to more information through discovery. Immediately after filing, send an early set of contention interrogatories to each defendant; this will force the defendants to start sharing pertinent information as soon as possible.

Success through Planning
A catastrophic injury case is different from a typical personal injury case. Depending upon your practice, the value of a catastrophic injury case may be 10 - or even 100 - times bigger than a typical case. Out of fairness to your client, your reputation, and the balance in your life, make sure you appreciate this dynamic - and the accompanying challenge - and plan for it from day one. In the end, the rewards for your client and your practice could be enormous.

Andy Gillin is the managing partner at Gillin Jacobson Ellis & Larsen. ( in Orinda. He specializes in personal injury cases.

Kari Santos

Daily Journal Staff Writer

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