The importance of early investigations in negligence cases

We’ve all seen personal injury attorney advertisements ad nauseam urging consumers to hire counsel as soon as possible. The sense of urgency may or may not be an effective marketing strategy, but it actually happens to be solid legal advice. The value of a personal injury or wrongful death case can change significantly based on an attorney’s early investigation (or lack thereof). The purpose of this article is to highlight the various reasons why even seemingly ordinary negligence cases should be investigated immediately or referred to counsel with the experience, time, and resources to do so. Don’t wait, investigate.

Preserving Critical, Time-Sensitive Evidence

There is no substitute for going to the scene of a car crash, slip-and-fall, or dog bite incident. Perhaps a disinterested witness saw what happened while waiting at their bus stop or working at their job nearby. Maybe somebody gave their name to the store clerk across the street. Disinterested witnesses will typically become less inclined to describe what they saw as time passes, so find and interview them as soon as possible. Memories fade and cooperating with attorneys can feel like more of a burden months or years after an incident. Video doorbells or surveillance cameras may have captured the incident, but key video footage will disappear when it is overwritten by newer footage. The sooner you investigate, the more likely it is that you will find disinterested witnesses and video cameras that saw the incident.

Going to the scene also gives you a sense of the layout, lighting, and other conditions that may change over time. Send an expert to the scene early on to take pictures and measurements. This way you have a record of what the conditions were like at the time of the incident. After a trip-and-fall injury, for example, the responsible property owner may make repairs to prevent additional incidents. Pursuant to California Evidence Code Section 1151, those subsequent remedial measures cannot be used against the responsible defendant. You should therefore make a record of the dangerous condition before it is eliminated.

In car crash cases, the next best thing after video evidence is Event Data Recorder (EDR) information. Most cars are equipped with EDRs that objectively record and store valuable crash data like vehicle speeds, steering wheel positions, and impact forces. An engineer familiar with EDRs should download this information before the cars are sold or destroyed.

In wrongful death cases, it is almost always necessary to have an autopsy report showing the cause of death and the contributing factors. Obviously, this must be done before the body is cremated and should be done before the body is buried.

Making Appropriate Contact with Opposing Parties

When an opposing party has crucial evidence like surveillance video, you must contact them. The California Rules of Professional Conduct control here. Rule 4.2 prohibits a lawyer from communicating directly or indirectly with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Typically, the opposing party will not be represented before a lawsuit is filed. However, Rule 4.3 makes clear that a lawyer who communicates with an unrepresented, opposing party shall not state or imply that the lawyer is disinterested. If you know or reasonably should know that the unrepresented, opposing party incorrectly believes you are disinterested, you must make reasonable efforts to correct the misunderstanding. The only legal advice you can (but are not required to) give to an unrepresented, opposing party is to secure counsel.

Sometimes the opposing, unrepresented party will voluntarily turn over evidence. This usually happens when the evidence tends to exculpate them. If they refuse to turn over critical, time-sensitive evidence like surveillance video, you must immediately send a preservation of evidence letter. A preservation of evidence letter will bolster your argument at trial for the willful suppression of evidence under Evidence Code Section 413 if the opposing party allows the video to be overwritten and destroyed. The best practice in this regard is to send a preservation of evidence letter via Certified Mail without a Return Receipt request because unscrupulous parties may refuse to sign for it if given that opportunity.

Getting the Injuries Evaluated Propery

If your client is injured, timely medical evaluations by qualified specialists can be essential to proving causation as well as the nature and extent of the injuries. If your client’s healthcare provider is a Health Maintenance Organization (HMO) such as Kaiser, your client will need to be their own advocate. They will need to see their primary care physician as soon as possible to get the appropriate referrals. If your client’s healthcare is covered by a Preferred Provider Organization (PPO), then they can skip the referral and get a list of in-network specialists in their area. They may need your help selecting the most qualified specialist for their injury. For example, orthopedic doctors typically specialize in treating specific areas of the body. Spine specialists and knee specialists may both be orthopedists, but your client with a spinal injury should not be evaluated by an orthopedic knee specialist. If your client is uninsured, then you may need to find the appropriate specialists to evaluate your client on credit secured by the case with a lien agreement.

Conclusion

The decisions you make early on in a case can make all the difference vis-à-vis settlement and verdict value. When time is of the essence, “No decision is, in itself, a decision.” If you cannot do a thorough and timely investigation, then consider making a referral to a lawyer who can.