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Lifecycle of a Case, Phase 1 & 2: Intake/Initial Investigation & Evidence Gathering · Coopers' Code

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Howdy, and welcome to the show. Cooper's Code examines legal
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issues. We seek to impart wisdom and
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share knowledge amongst the people that we work with so that
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we can all do the best job possible for our clients.
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In this show and the next few episodes, we're going to be
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doing something that is an examination of the life cycle of
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the case. This is done in part because of
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it being summer season and they're being clerks and other
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people at the firm who may not have as much experience with all
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the various phases of the case. It's also an opportunity to dive
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in, phone up, share knowledge about how we approach things,
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seek others to to write in or comment on how they also do
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things so that we can get the best results for our clients.
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I want to pay some homage as part of this intro.
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I would refer to this as the Lancaster series in terms of the
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life cycle of the case. Kevin Lancaster was a very
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talented lawyer. I had the opportunity to work
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with him and see just how amazing he was at parsing things
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and in essence, building these amazing outlines in his head
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about how to to strategize through cases.
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He also would gather all the younger attorneys, paralegals,
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clerks, and once a year go through a life cycle of a case
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process. That's the inspiration for this.
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We hope people enjoy it. In this episode, we're going to
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start out with the very beginning.
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That's the intake and initial investigation phase of the case.
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At the very beginning of the case, there's going to be an
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opportunity to have a conversation with someone.
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That can come a variety of ways these days.
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It can come via text message, it can come via e-mail, it can come
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via phone call, it can come via Zoom, it can come via an in
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person visit. But at some .1 has an
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opportunity to speak with somebody.
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And in our field it's usually somebody who suffered something
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that is has been awful. That's an opportunity to be
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human, use all the skills that we have been talking about
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various points in some of the episodes of of Cooper's Code 1
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is there not just as a lawyer and as an advocate.
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One is there to hear someone's story, absorb the harm that they
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have suffered so that one can learn how one can best help
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someone else. Being compassionate, being ears
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open and engaging with that person in the most heartfelt way
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possible so that they can feel heard.
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An additional piece of that conversation.
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It's essential as one's gathering information to also
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answer questions that that person has that initial
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conversation. Usually people have a lot of
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questions. One of the easiest ways to start
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that conversation is to start with, do you have any questions
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that you you really want answered?
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You can hear and, and have them answered and be able to focus on
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what we're talking about. You'll find that that will be an
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opportunity to answer questions, burning questions that that
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people might have that you might not think of.
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A lot of times people don't know what questions to ask and that's
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where making sure that one goes through the key points that
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somebody who's never been through this process most likely
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has his questions going forward. The common ones are how long is
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does this take? You know, it can take anywhere
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from six months if one resolves a case for policy limits, pre
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litigation if the injuries exceed the policy to years to
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more than years if it goes through trial and through
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appeal. Helping people understand the
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timeline, helping people understand what their
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obligations are going to be in terms of filling out forms,
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being available to answer questions, making sure that they
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are a good patient in terms of following through with their
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medical treatment, preparing for deposition, mediation and trial.
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We tend to talk about the whole process in that initial
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conversation with not regularly, but from an overview, so that as
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we go through the experience of the case and litigation, things
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aren't new for them. When a mediation comes up, it's
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something that they had heard about way back in the very
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beginning. There's various studies out
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there about how much information people need to be able to retain
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what they've heard. A a common number out there is 7
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that people need to see, hear, or read things seven times
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before they truly process it. And so having those little
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Nuggets at the beginning about what that timeline process looks
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like helps clients, potential clients, understand what that
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process is going to look like going forward.
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That's what what people often times refer to as as the intake.
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That's that initial conversation.
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There are other things that are important during that that
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period. It's going over the
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representation agreement and that's making sure they
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understand the terms of the representation going through the
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conflict waiver. To the extent that there is a
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conflict waiver and we err on the side of caution on conflict
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waivers. What do I mean by that?
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In a lot of cases, someone, even if there's not a bystander or
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family member who's been involved in the incident itself,
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there is a spouse and that spouse has the right to a loss
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of consortium. And if that spouse has a right
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to a loss of consortium, then there is the potential for
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conflict should something happen throughout the case.
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So again, making sure we err on the side of caution in terms of
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getting conflict waivers done. The other documents that are
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important are general releases. These are things that one can
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use to get the police report, any other non medical record
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report, HIPAA releases, Kaiser release if the client happens to
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be a Kaiser patient since those are different.
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And then a client questionnaire and we don't have the client
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fill out the client questionnaire at that initial
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meeting, but we will oftentimes set a deadline for it.
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Lots of people have different approaches to the client
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questionnaire in terms of how thorough it is, what goes in it,
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in its format. What we've found that can be
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beneficial for the work of the case is that if it follows the
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foreman derogatory setup, and for anyone who's watching this
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outside of California, California has what are known as
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foreman derogatories, a series of just check the box questions
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that it's easy to just check the box send to the other side since
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we know the defendants are always going to fill those out
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and they have a lot of pertinent information.
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We just have the client questionnaire cover the format,
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interrogatories in that order. So it's easy for us to put in
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the system. And then we have our own
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individual questions that are helpful for us in terms of
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getting to know the client better and getting to know the
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story of what happened to the client.
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Second phase is evidence gathering, and evidence
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gathering can take a variety of time.
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It can be a short process, but here are some things that we try
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to obtain as early as we can. So police reports, photographs
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from any sort of police investigation.
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We generally obtain body Cam footage.
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Most agencies at this point have body Cam footage and most of the
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time you're able to get it. On occasion you'll run into an
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agency that will say that you have to have a subpoena to do
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it. That can be a dilemma and the
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reason I say that is because sometimes there are cases that
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are cases where one should be able to resolve them without
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having to file a lawsuit. And why do I say that and why do
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I reference pre litigation? We do a lot of bicycle cases and
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one of the unfortunate things that we sometimes find in
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bicycle cases is that the injuries exceed the policies.
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And so it's more a question of being able to put the case
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together in a way where an adjuster can defend paying the
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policy. A lot of times that does not
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require litigation. It's more efficient for our
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clients not to put it into litigation.
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If one needs a body Cam camera to see what was said to the
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officer, that might be different than the police report, that can
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be a challenge. So that just kind of comes down
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to a judgment call if they won't give it to you to file suit
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right off the bat so that you can use the subpoena power to
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get that. Also on the list of obtaining
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early 911 audio, so the audio logs tend to be recorded over.
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It's not as as fast as it used to be as data and storage has
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gotten cheaper. They'll sometimes preserve 911
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audio for longer periods. But there can be some absolutely
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marvelous things that people witnesses say on the 911 audio
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at the same time getting the the CAD log, computer assisted
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dispatch log from the agencies that responded.
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So often times that's done through a central 911 database.
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So all of the different agencies will be listed on that one
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sheet. But sometimes there can be a
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number of different agencies that respond to an incident.
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And that's where making sure you get all the data from them.
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Because you can sometimes find that there is a missing witness,
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a phone number or some statement that is made in that catalog
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that is very, very helpful. In other thing that is, is
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important to get out early are security cameras.
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So security cameras similarly don't record over as quickly as
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they used to, but they do oftentimes record over past data
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getting out there. And, and whether that's using
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Google Street View or whether that's actually going out on
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foot and canvassing the area. We have found as we try to get
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security camera footage that sometimes family members or
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those involved in the incident themselves can make more headway
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than a lawyer or an investigator.
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What do I mean by that? If someone comes in and says,
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I'm, I'm really sorry to bother you.
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I, I got hit out there about a week ago and the insurance
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company has given me a hard time about it.
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Do you have any security camera footage that I might be able to
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record with my, my phone or take a look at?
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Just to, to be able to show them what happened because they're,
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they have a different view of what happened.
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We found the security guards can be more friendly to individuals
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like that and maybe look the other way even if there's a
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policy of not giving it out. That said, if an entity is being
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more difficult, sending an evidence preservation letter to
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let them know that you want this information can help.
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We've unfortunately had the experience that even when you've
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pushed to get things, even when you've threatened, even when
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you've sent a evidence preservation letter that
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sometimes the security camera footage gets recorded over and
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and it does not get handed over bus footage.
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Why do I say bus footage? So in urban environments where a
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lot of our cases happen, oftentimes they're just so
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happens to be a, some form of public transit that is going by
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in the moment or has gone by just before or has gone by just
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after. And the buses, I'll use the San
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Francisco Muni buses right now they have 9 cameras that are
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running all the time and recording.
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And you can access those. You can request copies of those
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through the what is known as the Sunshine Actor or PRI Public
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Records Act requests. So you can say to San Francisco
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Muni, I would like all video from all buses that traveled
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through the intersection of Market and 16th St. between 4:55
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and 5:00 PM on June 1st X year. They'll be able to do that for
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you. And it is sometimes stunning
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what you can find from these types of images.
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We had a case where a client was on a moped, got hit by a car
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making a left turn directly in front of him, and the flying
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through the air when he got hit happened to be captured by the
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front camera of a bus that was at the intersection
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perpendicular to all this. It was, it was absolutely
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devastating evidence in terms of just seeing the the awfulness of
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what our client went through. It was it was the kind of thing
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that added value to the case. Other things to obtain early are
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Geo tagged social media. If you're having a hard time
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finding the evidence that you need from these routes that
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we've already suggested, then looking to see if there's any
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sort of Geo tagged social media. This can be helpful.
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Often if they're bigger crowd events, sometimes people will be
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tagging things or or noting that they were there.
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If there are witnesses in the police report, it can be
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important to talk to those witnesses because what they say
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to the police is not always what the police write down.
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What do I mean by that? Most police officers are doing
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the best job they can in the moment.
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If you happen to have been at a collision scene, you'll see that
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they'll oftentimes have a little spiral down notebook and they'll
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take some notes as they're doing things and they've got their
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Body 1 camera running and then they'll put it back in their
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pocket. They may go to 4567 other
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incidents before the end of their shift and before they're
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typing things out and they may have taken the best notes that
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they possibly could, but they're not going to be comparing those
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notes to their body worn camera footage.
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And oftentimes the witness statements, either our clients,
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the defendants, other witnesses aren't accurate.
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So if you're relying on what a witness says in a police report,
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it's wise to reach out of that witness and perhaps get a
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secondary statement from an investigator.
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If what you see from a witness is problematic or curious in
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light of what you know about the collision, that's another
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opportunity to, to ask the witness.
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You know, I, I've looked at the police report, I'm trying to
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match it with the evidence. Can you help me understand what
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you saw that? And that's again, an opportunity
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to help tamp down the evidence of the liability side.
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We mentioned multiple agencies responding to an incident.
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So while the police might do a police report or police,
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sheriff's, Highway Patrol, whomever it is, oftentimes the
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fire department will also respond and they will have a
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patient care report. Then in many agencies, the fire
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department may be the initial responder with a paramedic who
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does their own independent report, but they'll then package
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and give them to another, an outside ambulance company.
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This happens all the time in San Francisco, AMR King Ambulance or
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two of the contractors. And so that's to relieve some of
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the pressure from the fire department.
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So fire department comes, evaluates, renders initial care,
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packages, hands off to ambulance, ambulance does
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transport. What do you have there?
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Another patient record? And these are the areas where
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particularly if you say you have a brain injury or a loss of
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consciousness, you may start seeing trends there of the
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person had repeated questioning on the ride between the
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collision site and the hospital. So there are a number of
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different reports and pieces of information that can be very
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helpful in gathering information at the very beginning.
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Also something together at the very beginning are our medical
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records. So we ask for the client to give
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us a list of the medical care. That's usually ambulance, ER,
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hospitalization surgeries. We like to do a first round
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order of medical records so that we can get those initial
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treatment records right off the bat, get a sense of what's going
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on. Oftentimes the client has
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ongoing care and that's something where it's important
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to just use whatever system one's office chooses to use to
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have ticklers to follow up that. If that client has had a surgery
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and it's going to take up to six months for the surgery and
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physical therapy to reach its maximal improvement to then
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calendar six months out for all the PT follow up visits,
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etcetera, to then order those records at that next phase.
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But one of the reasons it's beneficial to get the records
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upfront is in that early case evaluation, you want to gather
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as much information as you can because you're also going to
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want to reach out to the insurance company and, and let
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them know that you're representing this person and
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give them a sense at the outset of what these injuries are
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looking like. So that the insurance company,
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the adjuster can start adequately setting reserves and
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assessing the case. At the risk of saying something
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controversial, I don't know that it necessarily is, but we do
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tend to provide everything we possibly can to the insurance
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company right off the bat. So if we have the police report,
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if we have by open camera footage that's favorable, if we
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have medical records, if we have bills, anything that helps our
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narrative, we want to empower the adjuster with so that the
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adjuster can start understanding.
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Oh yeah, this is a case where I'm probably going to have to
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pay policy. Also in that initial gather
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public rec resources, I mentioned earlier that there is
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the Sunshine Act or the Public Records Act.
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The the federal version of that is the Freedom of Information
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Act. And from that one can get all
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sorts of information. Some examples say you want to be
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able to put this collision together because there's going
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to be dispute about liability. You may want to get the striping
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diagram, the as builds. These are all things that you
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can get from the Department of Public works or street
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engineering. You can get timing cards.
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These are show how the the light phases work at a particular
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intersection. Again, if there's an an argument
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about who had the right of way when something happened, there
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may be areas where it's, it has the potential to be a, a
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government defendant. And in that situation, doing
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those PRA requests early on for policies, procedures, other
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things, different example, we have had a few cases that
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involved trees and tree maintenance.
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Getting the policies and procedures for those maintenance
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elements early in the case can help one understand what the the
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governmental entity should have been doing that it that it
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failed to do. Another area that can be very
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helpful is getting prior incidents and, and these go to
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say dangerous conditions, cases, sweaters.
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The statewide integrated traffic reporting system used to be a
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royal pain in the ass to get information from.
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Now it's it's digital, you can just search for it.
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Using Google and you should be able to find it, but the
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database has managed to Berkeley now that's Tim's T
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ims.berkeley.edu and you'll find the, the sweaters section there
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that will allow you to to click in to various locations and get
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information on on what's happened there.
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Now there's a pro and a con on sweaters.
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The the Pro is that it exists. The con is that not every
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incident ends up making it there.
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And, and what do I mean by that? It takes traffic collision
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reports and it, it uploads those.
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In the past, there have been periods where there have been
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backlogs sometimes of up to six months.
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So you might not have the more recent traffic collisions and it
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doesn't include things that weren't reported.
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I I know that goes without saying, but in situations where
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there may be a report of a dangerous intersection and lots
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of near misses, but no actual hits, it's it's much harder for
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those types of cases. So you're not going to find that
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in sweaters. Thank you for listening and
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please join us next week as we continue this conversation.
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To all of you doing justice out there, happy hunting.