How to Make Your Case
When you are injured, your first thought is probably not about a lawsuit; that usually does not come until much later. Your first thought is about your health and/or your family. However, by the time you get around to thinking about a lawsuit and/or an attorney, so much opportunity to help your case has been lost.
Here, then, are a few pointers to contemplate and some things you might want to do, right after you are injured, to help create the best possible case for you to pass on to your attorney:
FACTS ABOUT THE PRESENT
The main idea you need to think about in the present is DOCUMENT EVERYTHING! You only get one shot at getting pictures of you in the hospital or capturing that first thought you had as the other car was plowing into the front of your vehicle.
- Lights, camera, action!
Nothing captures the scene of a wreck like a camera shot showing the pieces of a car strewn in an intersection. Words cannot capture the distress of a child, after a brutal attack, lying in a hospital bed, hooked up to a ventilator and clinging to life. The pain of grief is made much more poignant by still photos from a funeral, where family and friends gather to honor the untimely passing of a loved one. Do not spare on film or cost. Photos and camcorder video are inexpensive ways to preserve facts for future use, so take pictures from as many different distances and angles as possible. Always check the photos to make sure they show what you want AND make sure you have back-up copies, in case the originals are lost/destroyed or your computer crashes.
- Document! Document!
Document! If you have not, already, sit down and write out everything that happened right around your injury. No detail is too small! Don’t worry about grammar or spelling; this is not an English test, this is just getting all the facts committed to paper, so that you don’t have to just rely on your memory later on.
- Keep a journal.
There is a difference between telling a jury that you had trouble sleeping after your head was split open and being able to bring in a calendar or journal showing that you had no more than two (2) hours of continuous sleep, on any one night, for seventeen (17) consecutive nights. Or illustrating in painful detail that your children had various birthdays for two (2) years that you missed because you not could travel to visit with them. Or, you may have a present memory of a particularly painful day, that will be difficult to recall, if not written down as a present “memory.”
- Cell Phone Records.
Whom did you call immediately after the accident? Cell phone records will help you remember whom you called and when, right before and after you were injured, so get them, review them, and, maybe call the people you talked to and refresh your recollection (but be careful, if you do, of looking like you have manufactured testimony!). Then, write down notes of all of to whom you talked, what you talked about, and when.
- Neighbors, Co-Workers, and Friends.
Keep a list of people who might know something about your injuries and recovery. As you do this, put down their names, addresses, phone numbers, and what they might know.
FACTS FROM THE PAST
The contrast between your past and how your injury affected you may be dramatic. But proving it may require some creativity.
- Health Insurance Records.
Your pharmacy and medical records reflect bills for past treatment, diagnostic tests, and/or procedures. If they show an otherwise healthy person, the contrast with your present deteriorating condition, your medical records may drive home the point.
- Work Related Information.
Workers compensation, unemployment compensation, tax returns and social security records all may help you think of witnesses about either your past work history or witnesses from your past. Documenting your past work history with your present inability to work because of your injury will help you prove your claim for lost wages.
- Pictures and Video.
You may have family photos and/or video that will show you enjoying life and in all your vibrant health. This might prove a very compelling contrast with your inability to enjoy life to the fullest in the present due to your injuries.
How defense attorneys think and will try to get you . . .
Sometimes, the best records for the defense are in the hands of the plaintiff. Plaintiffs may have records reflecting prior accidents, pre-existing injuries, names of favorable witnesses and other helpful information. Therefore, it is important to tailor your request for production to seek out these documents. The next time you serve a plaintiff a request for production, consider asking for the following:
- Cell phone records.
Did the plaintiff cause the car accident because he was distracted on his cell phone? Who did the plaintiff call immediately after the accident? Cell phone records may reveal that the plaintiff was on the phone when he should have been paying attention to the road. Perhaps, in the heat of the accident, he confessed over the phone to a friend or loved one that he had caused the accident. By obtaining his phone bill, you will learn who these potential witnesses are.
- Credit card and bank records.
Plaintiff claims he has not left the house since the accident, the pain being so severe. But do his credit card statements bear this out? How about his cancelled checks? These records may reflect that since the accident, plaintiff has made frequent purchases at restaurants and movies and has taken regular trips and vacations.
- Vacation photos and home videos.
Plaintiff claims she cannot turn her head and is in debilitating pain. That same plaintiff may have vacation photos showing her swimming at the beach, hiking or my favorite, riding a roller coaster with her hands in the air (This really happened.).
- Passport records.
Plaintiff claims she has not been on any vacations since the accident. Her passport tells a different story, with dozens of stamps to numerous destinations.
- Pharmacy records.
The plaintiff’s pharmacy records will reflect all the providers which have written her prescriptions. These records may reflect pain medications for pre-existing injuries. If plaintiff does not have these records, you can subpoena them from the pharmacy.
- Health Insurance records.
Plaintiff’s health insurance records provide the names of all of his providers, how often he saw them and what they were paid.
Have plaintiff execute releases for workers compensation, unemployment compensation, tax returns and social security records. Social security records will contain a list of plaintiff’s former employers and his earnings from those employers.
- Plaintiff’s day planner and diary.
The plaintiff may keep records reflecting appointments with her doctors and the names of potential witnesses.
- Plaintiff’s e-mails.
Plaintiff may have e-mails reflecting how she is doing, how her recovery is going or what caused her accident.
- Disability and life insurance records.
To apply for long term disability and life insurance, you have to complete extensive applications. These applications may reveal pre existing conditions.