FIRM - 9-6-15 - Image of Medical Malpractice

In Part I, I discussed the importance of case selection to prepare your case for a successful trial or settlement.  In this blog post, I discuss your investigative responsibilities and provide various examples.

A. Your Investigative Responsibilities

Attorneys have an obligation to investigate the case prior to filing pleadings. For the plaintiff’s attorney, he or she must research the facts of the case, and the law if necessary, prior to filing suit to ensure it is a meritorious claim. For the defense attorney, he or she must huddle with their client and investigate the basis for the opponent’s allegations prior to filing an answer. Though investigation of the case certainly does not end with the filing of the complaint or the answer.  Many cases are won or lost before suit is ever even filed as judicious selection of cases is directly related to the pre-suit investigation you perform.

1. Use of Internet

With the advent of the internet, attorneys are able to perform much more investigative work from the comfort of their own office. Aside from obvious research tools such as Westlaw, Lexis, the Secretary of State’s corporations webpage, etc., the internet is a valuable investigative tool in so many ways. For example, in a trucking case, you may visit the trucking company’s website to get an overview of the company. Sometimes you’ll find interesting information with respect to the company’s hiring policies or other useful information. There are websites like which offer company safety data. If you’d like to find out the truck driver’s criminal record, visit which will provide you with that information for a small fee. Similarly, to order driving records, visit‑north‑carolina/department‑motor‑vehicles.php. Valuable information can also be found at which is the U.S. Department of Transportation’s website. For example, if a federal agency investigates the trucking company’s safety practices arising out of your wreck, you may obtain certain information through this website pursuant to the Freedom of Information Act (FOIA). Request all such information as early as possible, as the turnaround time is many months, and sometimes longer. Also, read newspaper articles online which reported the wreck. Contact the reporter to see if they have any information about witnesses or comments made at the scene. Indeed, the means to begin a case investigation is now at your fingertips.

     2. Other Leg-Work

Continuing with the trucking case theme, there are many other areas you are obligated to investigate and the sooner you conduct such investigation, the better. First, make sure you are familiar with the Federal Motor Carrier Safety Regulations (FMCSR) which address almost every aspect of interstate trucking. The regulations provide the framework with which you analyze the merits of your trucking case. If you are contacted immediately after the wreck, attempt to survey the damage. One of the best sources of information is the investigating police officer. Depending on the wreck, Highway Patrol may assemble their own reconstruction team. Developing a rapport with the investigating officers and working closely with them during their investigation can provide you with invaluable knowledge. Further, they will be that much more eager to testify in your civil trial should the case go that far. Do the same with any DMV representatives that may inspect the tractor truck for mechanical deficiencies. Also, consider retaining your own accident reconstructionist at the outset to perform his or her own investigation. If charges are filed against the driver, contact the district attorney’s office to find out who will be prosecuting the case. Make sure you develop a relationship with the prosecuting attorney, as their efforts can assist your civil case greatly. Our firm had a case involving the tragic deaths of a brother and sister arising out of a tractor trailer collision. Not only did we contact the D.A.’s office, we worked closely with their office to assist in the prosecution of the driver on two counts of misdemeanor death by vehicle and falsification of his log book after a two day trial. The prosecution of the driver substantially increased the value of the case in the civil context.

Obviously, you will have an opportunity to investigate many of the issues referenced above after you file suit and during the course of discovery. However, you will be much further ahead if you can garner as much information as possible prior to suit. For after suit is filed, much of your time will be consumed investigating issues that can only be accomplished with formal discovery. For example, you’ll want the driver qualification file, driver logs, data generated by any ECM (electronic control module a/k/a the “black box”) that may be on board, maintenance and inspection logs, trip tickets, alcohol/drug screens, the employer’s accident register, insurance coverage, the company’s handbook and training materials, etc. You may also want to perform tests on the tractor trailer for mechanical deficiencies. Similarly, you will need to take the driver’s deposition to investigate issues such as whether he was tired or inattentive, whether he was accompanied by unauthorized passengers, etc. This is but a short list of the areas you will need to investigate after suit is filed, and such investigation takes a lot of time. Therefore, the best practice is to find out what you can prior to suit, not just to assist you in the evaluation of your case, but so that you can devote more time during formal discovery to investigating aspects of the case into which you would otherwise be prohibited from inquiring.

Part 3 of this discussion will focus on the use of experts throughout your case.

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