Evaluating liability at the outset of your case

Spend time on the informal but crucial case evaluation before you run off to file a case

Martin I. Aarons
2014 March

You’ll never regret the case you didn’t take. That’s why it’s always better to be over-critical of the potential case than to believe you can make it fit or that only you can turn this dog into the best in show. That’s why it’s important to be thorough in evaluating liability on any potential personal injury and employment case.

In deciding whether to take a new case, a number of factors have to be evaluated: liability, damages, collectability, and likeability. As we have all heard – information is power. The process of evaluating liability is to gather as much information as possible and sifting through it to find those cases with the right mix of information. The right mix of information that makes our cases likely to survive summary judgment and, more importantly, win at trial.

Begin with the end in mind

Jury Instructions: It is essential, in all cases, to begin with the jury instructions. This is the ultimate “begin with the end” in mind. The jury instructions provide a step-by-step checklist of the basic information you need to gather to establish liability for any case. Also, read the cases cited in the user notes/sources and authorities section. This, too, will give you guidelines on the types of facts that make for good cases and those that don’t

Where to get them: Jury instructions are free! You can access the approved California CACI jury instructions free from the California courts’ Web site: http://www.courts.ca.gov/partners/317.htm.

Throughout litigation, refer back to the jury instructions to make sure you have done all the discovery and gathered all the information necessary. Also, looking back at the jury instructions helps to focus efforts on litigation and what is actually needed and what is tangential.

Gathering information

I ask all potential clients to bring all documents with them about their situation to the first in-person meeting. I send a confirming email about the meeting and in that email I list out all the various types of documents I expect to see. And I emphasize to bring it all. The things the client thinks are relevant, invariably are not. And the things that are relevant, the client may not realize their import. A case is typically in its best shape at the first client meeting, so if the liability is thin, then don’t get blinded by the damages thinking you can make a case out of it or that they will simply settle. Here are a variety of the types of information/documents I ask potential clients to bring with them to our first meeting.

Medical records: In almost every personal injury case, it is essential to obtain copies of your client’s medical records. And not just the records from the date of the accident forward, but ALL of your client’s medical records going back five or even ten years. You can be sure that defense counsel is going to ask Form Interrogatory 10 series about injuries in the past and that they are going to subpoena all medical records from your client’s past. Though you may be able to prevail on a motion to quash, we should still have the records so that we know what is in them. This will give us the information needed on whether to expend energy opposing the subpoena or just handing the records over ourselves which may obviate the need for the subpoena.

In certain employment cases too, like medical leave, disability/reasonable accommodation cases, or where the client is treating with a mental health practitioner, it is imperative to get the medical records first.

Where to get them: At the initial client meeting, have the client bring in whatever medical records they have. Have the client/potential client go to the facility and get the records themselves. Also, get them yourself.  I use a HIPPA form and send it along with a simple letter (examples of both follow the conclusion of this article) to the facility informing them that I represent the patient at issue and to provide all medical records, bills, etc.

Diagrams: When evaluating a slip-and-fall or a car accident or even work-place disputes, a scene depicting the events is very helpful. In a car crash have the client/potential draw out what happened on paper. Use hot-wheels/cars to have them show you what happened. Draw out a map of the store/building and where they fell, and of what was around. Draw out a floor plan of who sits where (i.e. the harasser is right next to her and these other people sit close by and would have heard the harassment).

Go to Google Maps or Google Earth or other similar sites and print out pictures of the intersection/location of the collision. These are invaluable tools that will be used throughout litigation, in mediation, and in trial. Through these diagrams a better picture and understanding of liability can be drawn.

Photos: With cell phones we would expect that all clients would have photos of the accident scene − no matter what kind of personal injury case – car crashes, slip and falls, whatever. If the client has them on the cell phone, get them emailed to you immediately. Cell phones die, get dropped in toilets or lost and there goes great evidence of liability.

You will be surprised however, at how many clients don’t take the right pictures, enough pictures, or any pictures at all. If this is the case, go to the scene ASAP and take the pictures yourself. Pictures of the intersection, the lighting, the ceiling, the floor, the surroundings, the car at the body shop, etc. This is imperative as defendants/people will fix and/or change things and the critical evidence about how things looked will forever be gone.

Videos: Stores often have video surveillance. If possible, obtain these videos. MTA buses all have videos on them. Videos can be obtained from cities of intersections, from the CHP of sections of the freeway, and from neighboring business of streets as well. And from bystanders. The existence of video can be crucial in having an expert evaluate safety, in showing how things were done and/or should have been done. Often, these videos cannot be obtained until litigation, but it is key to investigate sources of possible video early on so that they can be obtained and reviewed as soon as possible – we don’t want to spend a lot of money on a case only to get video at the 11th hour that shows the plaintiff was in fact at fault.

Documents: Your potential client will have a large number of documents ranging from emails to phone records, text messages, police reports, etc. Gather all the documents, not just the ones the client thinks are important, but all of them. Police reports in car accidents are especially important as they provide information about causes of accidents, witness statements, and witness contact information.

Social media: Look at your clients’ Facebook and Twitter accounts. See what they have said about the event. Find out if there are other relevant posts or tweets by others involved and gather them.

Employment records: Your client is entitled to a copy of her personnel file and wage records. In a personal-injury matter this may be very important damages’ information. In an employment case, these are essential documents regarding their performance, reason for termination, and investigations regarding any complaints. Was the potential client a good employee, have lots of write-ups, get lots of promotions, accolades, or complaints? Is there an arbitration agreement? The personnel file gives an insight into some of the possible affirmative defenses and may provide crucial information for evaluating liability.

Witness statements: In employment and personal-injury cases, getting the names of witnesses and their contact information from clients is important so that you can independently verify the information being provided. For example, in employment cases, getting a former co-worker to verify the harassment, discriminatory comments, or other events is imperative as current employees are unlikely to come forward out of fear of retaliation.

Timeline: Having the potential client write out a timeline can be very important in all types of cases, but especially in employment cases. The more detailed the timeline, the better. I have all my clients write out a timeline and that timeline typically becomes the outline of the complaint, the outline of discovery responses, and the outline for the discovery in the case. How soon after a complaint of harassment or discrimination was the potential client fired? Over what period of time did the bad conduct occur? How severe was the conduct the potential client is complaining about? Employment cases all take place over a period of time and from the timeline, the theories of liability become clear.

Does it all fit?

Once the jury instructions have been pulled and all the information has been gathered, the question becomes: Does the information meet the necessary elements to state a claim? In determining if I believe a case has a strong liability or weak liability, I ask three questions:

• Does the information fit in with the law?• Does the information tell a compelling story?• Are there any glaring holes, weakness, or applicable affirmative defenses?

In evaluating liability, discretion is the better part of valor. I have yet to hear about the case I turned down turning out to be a big winner and wishing I had taken it. In my mind it’s better to turn down the case with lots of question marks or the one that just doesn’t feel right than to force a square peg into a round hole. Good luck!

Examples of HIPPA form and simple letter

Martin I. Aarons

Martin I. Aarons has been an employment law trial attorney for more than 18 years. As a trial lawyer, Martin has handled all types of employment related cases on behalf of people who have suffered a workplace injustice. He specializes in cases involving discrimination, sexual harassment, sexual abuse, retaliation and whistleblower cases of all kinds, shapes, and sizes. Martin was elected to the Executive Committee of the Consumer Attorneys Association of Los Angeles (CAALA), and will be CAALA's President in 2025.

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