Articles
Defending Transportation Cases (Jim McCluskey Angelo Spyratos)
Defending Transportation Cases:
Pretrial Preparation
By: James F. McCluskey and E. Angelo Spyratos
Each time you receive a case in your office, you should review it, organize it, and engage in discovery with a view toward trying the case. This may not mean changing your methods of discovery, but it may mean changing your outlook on the case. If you begin to "think trial" the moment you receive the case, you will automatically begin to form a trial defense theme and strategy in your mind as you make your way through discovery.
-
IN THE BEGINNING
When you receive a defense case, certain actions may be taken immediately which will help your discovery proceed more efficiently as the case progresses. When the investigation is complete, you will then be ready to begin formatting the information in a manner that will be presentable to a jury.
-
IDENTIFY YOUR CLIENT
When a defense assignment comes to you from an insurance company, keep in mind that the insurer is not your only client. Recall that if a conflict develops between the insurance company and the insured, your ultimate duty is to the insured, and you must work to resolve the conflict. Maryland Casualty Co. vs. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (1976). Also consider in assignment from companies whether you were assigned to defend the company, the driver, or both. Determine whether this can be done without conflict.
-
LOOK TO THE POLICY
While many policies are similar, each policy should be examined for nuances which might make it different in a significant respect. This is especially important in uninsured and underinsured motorist cases, as well as in fraud defense.
-
LOOK FOR SUSPICIOUS CIRCUMSTANCES
From the onset a defense attorney should be aware of certain circumstances or events which may indicate the plaintiff is malingering, claiming damages from a prior or subsequent accident, or exaggerating the occurrence or injury. If any of the following indicators appear, then discovery should be followed through in the appropriate area:
-
The physical damage to the vehicles involved is inconsistent with the plaintiff's rendition of the circumstance of the accident or the extent of the injuries claimed;
-
The plaintiff submits a desk report to the police department as opposed to calling the police to the scene of the accident;
-
The number of occupants of the vehicle as indicated in the police report differs from the number given by the plaintiff;
-
The police report indicates property damage only with no personal injuries, complaints of pain, or wounds listed;
-
The emergency room or paramedic reports indicate little or minimal complaint of pain;
-
The vehicle involved is "unavailable" for inspection, or the damage has been repaired without documentation of same;
-
There are inconsistencies or discrepancies in the accounts of the accident as related by various parties;
-
The plaintiff did not seek medical care or treatment until a significant amount of time passed from the date of the accident;
-
The plaintiff returned to work for a significant period of time following the accident, before experiencing difficulties with job performance.
-
KEEP IN CONTACT WITH THE INSURANCE INVESTIGATOR
The investigator who performs the initial evaluation of the accident and injury can be very helpful to a defense attorney. If not included in your initial case package, check if the investigator took photographs of the automobiles or accident scene, or took any witness statements. Often the investigator may be called on for follow up investigation, such as tracing down "lost" witnesses.
-
BEGIN MEDICAL DISCOVERY EARLY
Never underestimate the length of time that medical discovery can take. Prior to taking any treating physician depositions, all medical records should be thoroughly reviewed. This is important when the plaintiff has an extensive medical history. If the plaintiff has a long-standing history of illness, sometimes the clinics will have since closed down, or records or x-rays may have even been destroyed.
-
DISCOVERY TOOLS
Discovery tools allow an attorney to learn new information and to confirm or dispute information gained from other sources during the investigation of the claim.
-
INTERROGATORIES
Interrogatories should be used as a preliminary tool for defense attorneys to get an overall picture of the case and the damages alleged.
While most attorneys have "standard" sets of interrogatories, check to ensure they meet the issues in the particular case. It is also a good idea to tailor some additional questions toward the specifics of the case and address the particular injury or injuries alleged.
-
PRODUCTION OF RECORDS
Record production can acquaint the defense attorney with an overall view of the plaintiff's medical treatment and physicians involved.
After reviewing a production response, the defense attorney should always double check with the sources of provided records for additional information. Subpoenas can then be sent to the treating physicians or employers of the plaintiffs to obtain prior or subsequent additional records.
Record production material should ask for employment materials and plaintiff's tax forms. This information can confirm plaintiff's wages.
-
DISCOVERY DEPOSITIONS
Depositions are helpful because they force plaintiffs and witnesses to "lock into" a particular version of events or allegations of injuries. A deposition may be used as substantive evidence at trial and for admission and impeachment purposes. Further, a plaintiff who suddenly alters his allegations after sworn deposition testimony will appear less credible in front of a jury and opposing counsel will be more willing to settle a claim.
Discovery depositions are often taken after a careful review of the plaintiff's medical and employment record. When a defense attorney is fully informed of the facts he or she can accurately interrogate a plaintiff. The materials an attorney needs to consider before a deposition proceeds depends on the complexity of a case. Less material review is needed for a simple case.
-
DEPOSITIONS OF TREATING PHYSICIANS
Attorneys often take a discovery deposition of the treating physician. A discovery deposition allows the attorney to explore the medical issues and determine what may have been unclear or unrecorded in the record. Most doctors will follow the information contained in the records and seldom vary. Doctor's discovery depositions are helpful in adding information such as the doctor's opinions on causation, disability and future medical care.
Prior to taking a treating physician's deposition, many defense attorneys find it helpful to consult with an expert of their own. A defense expert physician can point the attorney in the proper direction regarding the types of questions to ask and the proper issues to address.
-
SUBPOENA EDUCATIONAL RECORDS
In some cases, obtaining educational records can be like striking gold. Such records can reveal past injuries from sports and prior medical conditions.
For a plaintiff claiming brain trauma or brain injury, educational records can reflect that he or she has a prior history of testing at below average levels, memory deficit, or even learning disabilities.
-
SUBPOENA EMPLOYMENT RECORDS
Employment records reveal significant information such as salary, past salary, medical history, job performance prior to the accident, promotions, raises, and workman's compensation claims. Recently, many employees are subject to physical examination prior to beginning employment. Such records can reflect past illnesses or surgeries. If the plaintiff is working in a physical capacity, such as for a company like Caterpillar, the employees are often subject to yearly physical examinations which can reflect important health status of an employee including any hearing, visual, or physical deficits.
When issuing a subpoena for employment records, the defense attorney should clearly list each and every record he or she wishes to receive. Employers who are inexperienced in dealing with subpoenas will often incorrectly assume that "complete record" means simply pay stubs and W-2 information. The subpoena should stress that the records to be produced should include items such as job applications, references, any doctor or physician notes or excuses, and time sheets or time schedules of the plaintiff to verify whether he or she did appear for work.
-
SUBPOENA MEDICAL RECORDS
Consider whether the records you have are from opposing counsel or from the provider. In most cases, subpoena the records directly from the medical providers as opposing attorneys may not submit plaintiff's entire chart.
Once medical records are obtained, they should be reviewed carefully. It is important to look for any preexisting injuries which may not have resolved at the time of the accident. Also, medical records will often reflect a change in the pattern of the plaintiff's complaints. For example, a plaintiff may appear at a physician's office in January complaining of low back and neck pain. But a later record of June may reflect the plaintiff complaining of shoulder pain and dizziness. While a physician is bound to record such complaints, these inconsistencies are often clinically incredible and can then be subject to attack by a defense expert physician.
When faced with a burdensome amount of records, it is often extremely helpful to keep a time line or outline while abstracting the records. This aids in keeping track of symptoms, complaints, and treatment by varying physicians. Further, such a time line can be later developed for use as a demonstrative evidence chart at the time of trial.
-
INTERVIEW WITNESSES
Important information can be learned not only from occurrence witnesses but also from persons who witnessed post accident behavior and movements of the plaintiff. This can include employers, co-workers, and even husbands or wives. Consider and interview these witnesses. They can provide information about the plaintiff's work history, work habits and behavior after the accident.
If you are disputing the defendant's liability for negligence, it is a key factor to interview the occurrence witnesses. Review carefully any witness statements taken by the insurance company, and any statements which may have been given to the reporting police officer. Keep in mind that such statements are often attached to the police report as a "supplemental report." When requesting copies of any police reports, always request not only the incident report, but also any supplemental reports, investigation, or statements.
If an occurrence witness is favorable to your case, you should always attempt to "lock in" the information via a discovery or even evidence deposition to preserve the testimony for trial. Many times, a witness will be willing to sit for one statement or deposition, but is not anxious to take off work and attend a trial, even in the face of a subpoena. It is always helpful to preserve the good humor of the witness by allowing them to sit for an evidence deposition.
-
INTERVIEW THE REPORTING POLICE OFFICER
While no police report may be admitted into evidence, a police officer may testify regarding the accident scene and the plaintiff's appearance after the accident. A reporting officer can describe the condition of the plaintiff and whether he observed any limping, hunching over, or indication of injury. Likewise, he can testify if the plaintiff was standing straight moving freely, and in no apparent distress. Often the police officer may not have an independent recollection of the event, so the police report can refresh the officer's memory. Consider sending a copy of the report along with a subpoena.
-
INDEPENDENT MEDICAL EVALUATION
So long as a plaintiff puts his or her medical condition at issue in a case, an attorney may request an independent medical evaluation and examination to be performed. These are often performed in cases where the defense attorney suspects a plaintiff is malingering or not injured at all.
-
INDEPENDENT PSYCHOLOGICAL EVALUATIONS
Though it is sometimes difficult to obtain court permission to conduct an independent psychological evaluation, such an examination can be extremely helpful where an emotional component is suspected. Such evaluations are most often performed by a psychiatrist or a neuropsychologist.
An independent psychological evaluation can be employed in cases involving closed head injury or brain trauma. In such a circumstance, the neuropsychologist will administer a battery of tests to the plaintiff and then will evaluate the plaintiff's responses against American Psychiatric Association standards. Having the doctor testify at trial is beneficial to the defense because the jury will then see a professional physician presenting an evaluation of the plaintiff as opposed to the defense attorney "bashing" the plaintiff's mental condition.
-
SURVEILLANCE
Because it is costly, surveillance should be considered on a case by case basis. The benefit of surveillance should be balanced against the cost of potential settlement.
If possible, a plaintiff should be put under surveillance following a deposition or sworn statement, when the plaintiff has testified to ongoing pain or disability. Remembering that a video tape will say more than a thousand words. For example, one plaintiff's attorney was stunned when after presenting the plaintiff for a deposition and alleging severe brain injury and partial paralysis, a video tape surfaced showing the plaintiff dining out and socializing with her husband and friends.
-
ACCIDENT RECONSTRUCTION
In a circumstance of a multi-car accident or where a plaintiff was forced off the road, accident reconstruction can be used to dispute the plaintiff's allegation of how the accident occurred. Though costly, accident reconstruction can be used to prove through physical evidence that one or more parties to the accident was driving recklessly or speeding before the occurrence.
-
DATA BASE SEARCHES
This tool is useful to discover the prior claim, criminal, and legal history of a plaintiff. A database search can be in the form of an insurance index search to assess any prior injuries or claims made by a plaintiff. Searches can also be conducted of courthouse records to reflect prior lawsuits or criminal charges on the part of a plaintiff. Records of driving restrictions and suspensions of driver's licenses may be obtained from the Illinois Department of Motor Vehicles.
|
