Investigation – Marshalling the Discovery |
By Bruce Robertson, Private Investigator
The purpose of this presentation is to give an overview of how investigation discovery should be conducted in a personal injury case. Facts created by investigation supply you with ammunition in your campaign against the defense.
BACKGROUND INFORMATION
When interviewing your client, it is important to obtain as much information about the incident as possible. Although minute details may seem superfluous at the beginning of a case, you never know which case is going to end up in a protracted litigation battle where such details can be significant. In that regard, make sure you get plenty of identifying information on your client, such as date of birth, Social Security number and name of a relative. This will help you from losing contact with your client.
In the case of an auto vs auto accident, it is important to get information such as directions of both vehicles, what streets, whether parties were going straight or turning, etc. Obtain physical descriptions of both vehicles including year, make, model and color. Witnesses often only remember vehicle color, vehicle size or sex and race of the drivers. Be sure that you have an accurate description of were the scene of the accident is. It is often helpful to have your client draw a diagram of the scene.
Be sure to ask the client if the defendant made any admissions at the scene. Your investigator can confirm this with witnesses and thus strengthen the liability picture.
FORMAL INVESTIGATION VS INFORMAL INVESTIGATION
Informal investigation is investigation which you or your staff may conduct. This includes requesting and obtaining police reports, verifying insurance, interviewing witnesses, etc. It also includes photographs taken by your staff or by client.
In the case of significant injury or disputed liability, an independent investigator should contact the witness so that they can testify as to statements made by the witness if the witness is uncooperative in giving a formal statement. The attorney should in no case obtain a statement from a witness because if this statement is ever questioned at trail, the defense can call you as a witness in your own case, a nightmare scenario. (See People v Boford (1953) 117 Cal.App.2d 576, 580,256 p.2d 334, 337.)
In routine cases, you or your staff may want to call the witness and find out what they have to say in terms of liability and assess their level of cooperation. At this point you have a number of options, first you can send them a witness statement form for them to write down what they saw, sign it and return it to you by mail. This may or may not establish liability. It is not particularly helpful for a witness to say the defendant ran the red light without establishing where he or she was, what color the light was at the instant when the defendant’s front tires entered the intersection, their speed, etc. If you have a “dead bang” liability case, these basic witness forms can be adequate, however they will have little value as evidence should liability be disputed.
Formal investigation is hiring an outside investigator to conduct your investigation for you. There are a number of advantages to using an outside investigator, the most important of which is the experience an investigator has in conducting investigation in such a way as to make it useful as evidence in the future. The experienced investigator is also on the look-out for possible peripheral issues such as highway design defects, product liability and other liability theories or targets which may present themselves. If the witness recants or becomes unduly influenced by the defense and changes his/her story, you have an independent party to impeach the witness and confirm prior statements.
CLIENT CONTROL INVESTIGATION
If you have a high profile case with major injuries, cementing your client’s confidence in you is very important in the early stages. Sometimes in such cases there may be family members giving conflicting advice as to who should be retained to represent the injured party. One way to establish a bond with your client and impress them with your ability to handle the case is to conduct a timely comprehensive investigation by an experienceed investigator. In these cases it is helpful to have your investigator meet with the client at the scene of the accident and review the facts. The investigator will then take photographs, obtain witness statements and conduct a scene investigation.
The investigator will conduct this work and return a report to you within a couple of weeks. At this time you can call your client in for an additional meeting and show them the investigation that has been conducted. This can go a long way in boosting your client’s confidence in you by demonstrating prompt and efficient investigation of the case. This can help you avoid a possible substitution of attorney in the future.
FORMAL STATEMENTS – WRITTEN VS RECORDED
It is important to obtain witness statements early on in the case. There are different circumstances which predicate whether or not a written or recorded statement should be taken by an outside investigator.
The Recorded Statement
If you have an average auto vs auto case and you want to inexpensively obtain witness statements, having an investigator take a telephonic statement can be adequate. The investigator calls the witness on the phone, informs them that they are going to be recording their interview and then conducts an interview with the witness. The downside of this type of statement is that if the witness is not favorable, or has both favorable and unfavorable information in regard to your liability; the statement has become a piece of evidence which may be discovered at a future date. If you are depending on the statement to determine if you keep the case or not you may not have a problem with receiving a negative statement. You can then show the statement to your client and explain to them why you will not be able to pursue the case. On the other hand, if you keep the case, you may have a statement which the defense may discover at some point in the future.
It is important to obtain statements from witnesses even if they claim not to remember the accident. This precludes the defense from working them over and turning them up as a favorable witness for them in the future.
THE WRITTEN STATEMENT
If your case has more than average value or disputed liability, it is advisable to have the witness interviewed in person by a qualified investigator. The investigator will contact the witness and make arrangements to meet with them at the witness’ convenience.
The investigator will start the interview by finding out what the witness saw and how their memory of the accident affects liability. The investigator will often draw a diagram of the intersection scene in a traffic accident and use paper clips to represent various vehicles. They will find out everything the witness has to say concerning liability before proceeding with a statement. The advantage of the in-person interview is that before preparing the declaration, the investigator can determine what factors are favorable and which are not. In the preparation of the statement, the investigator can emphasize the favorable factors and minimize negative factors.
The statement should be written by the investigator in the first person of the witness starting with “I (name of witness), declare as follows:” and conclude with the following paragraph, “I declare under penalty of perjury that the above statement by me is true and correct to the best of my knowledge, that I have personal knowledge thereof and that this declaration is executed on (date) in (city), California”, and the signature of the witness. The investigator should make at least one change in the document and have the witness initial that change to prove that the witness actually read and understood the statement.
If liability is favorable in terms of the witness and there are complicated facts involved, at this time an in–person recorded statement can be taken. The in-person recorded statement provides extensive details for the attorney in cases where extemporaneous details and state of mind are important. An example of this would be in a case where there are multiple vehicles involved in a complicated freeway accident, or a third party work related accident where details surrounding the situation are important.
In some cases, especially major personal injury cases, you may instruct your investigator beforehand not to take a statement if the witness is unfavorable. This will prevent a formal statement which is harmful to your case from being discovered by the defense in the future. In such cases, once the investigator has established in the interview the witness is negative toward liability, the investigator only takes detailed notes of the “informal interview” and submits a report to the attorney that is covered by work product privilege. There is not statement to discover.
IMPEACHMENT STATEMENT
There may be cases where a witness is clearly biased against your client. In such cases the witness may be so anxious to help the other party that they make unreasonable or illogical statements such that they assail their own credibility. If you have such an adverse witness, it can be advantageous to have an investigator take a statement from them. In it the investigator will allow the witness to exaggerate the facts to whatever degree they wish in order to lock them into bogus facts and details that can be used in the future to impeach their credibility.
PHOTOGRAPHS
It is important to have photographic documentation of the evidence early on before the evidence is changed or no longer available. These alterations include the repair of vehicles, the wearing away of skid marks and changes made as a result of subsequent construction at the scene of an accident.
VEHICLE PHOTOGRAPHS
It is imperative to obtain photographs of your client’s vehicle. This can be done by the client themselves, one of your employees such as a paralegal, or by an investigator. If there is major damage to your client’s vehicle and there is disputed liability or extensive injuries, you will want to have an outside investigator take photographs of the vehicle. Outside investigators are experienced in taking photographs which thoroughly document the evidence, including using both wide angle and close-up lenses. They also can independently verify the license and VIN number to accurately identify the vehicle should the case go to trial. If requested, they can use yardsticks and other visual aids to show the extent of the damage in the photographs. The outside investigator can confirm that your client’s seatbelts were in working order. At this time the investigator can also be on the lookout for any possible product liability factors in regard to the vehicle.
It can also be helpful to obtain photographs of the defendant’s vehicle. This is especially true in cases where your client may have little visible property damage due to an impact resistant bumper. The defendant vehicle may have sustained more visible front end damage. If both vehicles had to be towed and stored after the accident, it is sometimes possible for a skilled investigator to obtain photographs of the defendant’s vehicle at the same lot where the client’s vehicle is being stored. Investigators can also often gain access to areas around the defendant’s premises if the car is parked or stored at the defendant’s home and use telephoto lenses to obtain defendant vehicle photographs.
INJURY PHOTOGRAPHS
If your client has visible injuries, including cuts and bruises, they should be documented as soon as possible after the accident. If your client or a member of your staff is competent in taking such photographs, these may suffice. If injuries are extensive, it is advisable to have an investigator take photographs making use of lighting techniques and macro lenses to document these injuries. If your client has sustained permanent scars as a result of the accident, you may want to have the investigator take photographs of these scars after a period of six months or a year when the scars have reached their permanent level.
SCENE PHOTOGRAPHS AND INSPECTION
There are instances when it is important to document the scene of an accident. This would include documenting skid marks left by either your client or the defendant, documenting blind intersections, the existence of railroad tracks, speed signs and unusual intersections. If it is not a high profile case, it may be sufficient to have either the client or a member of your staff take these photographs. Otherwise, it is most advisable to have an investigator conduct the scene investigation.
The trained investigator will locate skid marks and take measurements to document skid marks, widths of street, etc. This investigator will also conduct a survey of the timing cycle of the traffic signals and confirm what sequences the lights follow. The investigator will take photographs from the view of the client, the defendant and the witnesses. Experienced investigators will also be on the look-out for any possible contributing factors such as highway design defects and they will canvass the area for witnesses.
ONGOING INVESTIGATION
If your case does not settle in a year it is important to diary and contact witnesses at least once a year to keep track of them. If witnesses cannot be found, outside investigators have the resources to locate them. If in the early stages you only had witness forms filed out, as a trial looks likely you may want to consider hiring an investigator to obtain formal declarations and get sufficient anchor information to keep track of witnesses. If either you or the defense notices the depositions of witnesses, it is advisable to have an investigator obtain a statement from these witnesses prior to the deposition to avoid surprises and lock in their testimony.
ASSET INVESTIGATIONS
If you have a case where the policy limits are offered by the defendant’s carrier, you are required to conduct investigation into the assets of the defendant before accepting the policy limits. It is imperative to have this investigation conducted by an independent investigator who will be responsible for the asset investigation findings. You may want to confirm that your outside investigator has Error and Omissions insurance in this regard.
TRAIL PREPARATION
Should your case go to trail, it is important to begin making sure that witnesses are available at least one month before the trial date. If you are subpoenaing witnesses which are favorable to your case, it is advisable to have an investigator interview them and prepare them for trial when serving the subpoena. At this time the investigator can also have the witness sign a letter agreeing to be “on call” so that their time in court is minimized.
CONCLUSION
Much of your investigation discovery should be conducted early on, while the evidence and recollections are fresh. In addition to marshalling the evidence and establishing the facts, the investigation can help bond your relationship with your client in the crucial early stages of a case. While some informal investigation can be conducted by you and your staff, it is important to be aware of the conditions that require formal investigation by an outside investigator. Facts gathered by investigators are your main source of ammunition in the continual valley of rounds fired between yourself and the defense. |
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