Lawyer to Lawyer Toolbox - Accident Investigation – What do I do with this case?
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Many small town lawyers have local residents approach them about taking their personal injury case. In many instances the lawyer may hesitate but the challenge seems like something that would spice up their otherwise mundane small county practice. So they sign the client up. But after ordering the accident investigation report they don’t know which way to turn or what to do.
Not wanting to tell the client they don’t have the experience to know where to turn they end up holding the file and doing nothing. Time passes, like it always does, and the file gathers dust as it sits on the corner of their desk. The file being ever present is nothing more than a hindrance to the lawyer because it’s a constant subconscious reminder of what they aren’t doing. Well speed up about almost two years and I’ll get a frantic call from the local attorney wanting to associated with me on this otherwise good personal injury case. The accident scene is now barren of any evidence. The witnesses memories get as cold as a glacier’s surface. And any evidence that was available is now history. There’s a brief description by the police officer but nothing more.
As I watched the news last night I couldn’t help but see the wrecked van heading to Marshalltown with nine passengers. The television news report showed the van all mangled and some people described as relatives of the victims, one died, walking around the scene. This was described as a one-vehicle rollover type accident. Well being a civil trial lawyer and having some knowledge of rollover type accidents, remember the Firestone tire controversy, I said to Barbara, “I’ll bet it’s a tire failure.” Sure enough the next clip of the scene shows a separated tire tread lying on the ground. Normally I stop thinking about it because of the number I see but not this one.
You see it’s easy to ignore the case thinking you’ll get to it. But whatever lawyer gets this case or if the Iowa State Patrol thinks about it, someone needs to secure the tires and the separated tread. In cases like this it’s important the lawyer secure as much of the physical evidence as is available and promptly. Besides securing the physical evidence have the garage mechanic mark each tire with chalk to show from which wheel it was taken; i.e., which location of the vehicle it was attached. (front driver’s side, passenger front seat, driver’s side rear, passenger side rear) It may seem like a little thing but words chosen to describe location have to be obvious from the description chosen. Any ambiguity in the location creates argument later in the case.
If evidence is taken directly from the scene, use markers to photograph the location of where the physical evidence was located at the scene. Mark, measure and photograph all skid marks.
You may wonder how I know all of this. Well I do have 27 years of practicing as a civil trial lawyer. But in law school I worked my way through school and was a private investigator. In addition we investigated such a case in northern Wisconsin where the mechanic was interviewed and disclosed he’d mixed up the tires when he marked them. Luckily he’d marked them in such as way as to recall in what order and location they were removed. That sequence jogged his memory making him realize his mistake in the markings. That placed the blown tire on the opposite side of the vehicle from which he originally reported. This is a difficult enough business without having it complicated by a delay that destroys evidence.
So be prompt in securing physical evidence and be clear about how the pieces are cataloged and where at the scene they were located. And if you’re going to sooner or later refer or associate on the case do it the day you get the case, not a week before the statute of limitations is about to run.