Turning Over the Rocks: Getting the Good on Plaintiffs and Learning the "Real" Facts About the People Suing You
I've been around the block enough times to know that - in most cases - if I am getting at least half a truthful story from a plaintiff regarding how an alleged accident occurred, the accompanying purported damages, and his or her prior medical history, I'm doing pretty well. The fact of the matter is plaintiffs are human and humans act strangely in litigation. That's because money is involved. Money does things to a person's judgment. As a result, truth and candor often fly out the window. Accordingly, if your case valuation is based upon what the plaintiff is telling you, you're typically going to pay too much on a claim. We all know about conducting witness interviews, taking depositions, and serving paper discovery; however, there are extra steps you can take to independently investigate a plaintiff, the claim, and his or her credibility. These steps, which we have found extremely helpful, in many, many cases include:
- Serving "Prophylatic" Medical Subpoenas
When defending a case involving substantial injury like back or leg, defense counsel wants to know all he or she can about preexisting conditions. Accordingly, defense lawyers will send an interrogatory stating something like this: "Identify all medical providers visited by Plaintiff within the last 10 years." The hope is that the plaintiff will provide a detailed, careful summary of doctors he or she has seen, along with addresses and dates of service. However, in the real world - assuming the plaintiff even bothers to answer your discovery - you may get some providers identified along with some vagaries concerning the reasons why the docs where seen. You also see stock answer like "Plaintiff cannot recall medical providers seen for that amount of time" or "Plaintiff objects to Defendant's Interrogatory as burdensome and overly broad." Instead of immediately seeking to compel, we first try to take matters into our own hands.
Using database searches, we learn were the plaintiff has lived within recent time. From there, we issue subpoenas to all hospitals in the area where the plaintiff has lived. Also, we identify emergent care centers or doc-in-the-box chains operating in the area and we'll send subpoenas to them as well. It's not much work for us - we've assembled the names and addresses of hospitals and other large medical providers throughout South Carolina. Plus, it costs very little to the client to serve a few more subpoenas. The dividends to doing this work, however, can be huge. In a recent premises case, the plaintiff alleged permanent injury for alleged injuries to her back and legs. Based on her deposition and discovery responses, we were led to believe the alleged incident giving rise to the suit was a seminar tramatic event ("I have always been in perfect health. This fall ruined my life."). However, the subpoenas to the area medical providers - providers not revealed in her discovery - demonstrated a histroy of pre- and post-incident falls, automobile accidents, and other traumatic events that required treatment to her back and legs. She also had been treated for dizziness and
vertigo. The result: When we mediated the claim, we resolved it for 10% of her original demand. She came into the mediation thinking we didn't know about her medical history - she learned the hard way that we did.
- Local Police Reports
A good defense lawyer will run a criminal record history on the plaintiff from the state's crime data repository when he opens a file. This report will show arrests and disposition of the charges. A good plaintiff's attorney will as well - he or she wants to know what kind of client he or she has. However we have found that the investigation of the plaintiff's history with the law does not stop with this one information request. We have begun taking the extra step of sending an FOIA request to the law enforcement agencies in the plaintiff's town and county. We are finding reports of arrests that are not revealed on the state reports. Having information of these arrests provide another entre into impeaching the plaintiff. Here is a "for instance": Say the state report says "No arrests," but the county sheriff says "Arrest for housebreaking" when the plaintiff was 17. You later learn there was no prosecution because of the plaintiff's youth. Nevertheless, in your deposition of the plaintiff, you ask "Have you ever been arrested?" The claimant, thinking you don't know about the housebreaking arrest, says "No." Right there, even though there was no conviction, you arguably have a basis for impeaching the witness at trial on the matter of the arrest - he lied to you at the deposition. That little nugget may be something you save for trial or as added leverage at mediation. Either way, you've helped your case with this simple request to local law enforcement.
- Employment Records
I love subpoenaing employment records. They can be a real treaure trove of information. We work hard to string together a plaintiff's employment history and then seek records. We always look for attendance records and reports the plaintiff makes to his or her employer regarding injuries relating to the incident giving rise to the lawsuit. These records will often be very different from the responses the plaintiff makes to your discovery requests.
What you will also often find is tremendous inconsistency in the representations the plaintiff makes to his employers regarding employment history and the reasons for leaving prior employers. Also, you will find records of disciplinary actions, some of which are serious and potentially embarrasing to the plaintff - like complaints of sexual harrasment. These pieces of information can perhaps be used in your impeachment case.
Further, you may learn about prior workplace injuries that may provide greater explanation for the injuries the plaintiff alleges in his lawsuit against the client. If the plaintiff is alleging injury to his L4-L5 due to a purported slip and fall at your store, wouldn't you like to know he had been out on long term disability for lower back pain the year prior to the date of loss? Evidence of pre-existing condition can really push down the value of the case.
Bottom line observations:
The "facts" of a case are those that exist when everyone stops looking. Therefore, the key - especially in a big case - is to keep looking until you satisfy yourself that you know everything about the plaintiff you can learn. We call that "turning over the rocks." You never know what you will find
when you turn over those rocks. It could be the difference between a very expensive claim and a negligible one. Litigation, like life in general, is a game of inches. Have a great week. As always, let us know what Collins & Lacy can do for your in South Carolina. This email is intended to provide information on noteworthy legal issues to our clients and friends and is not a substitute for legal advice. Should you wish to discontinue receiving further email updates, please reply to
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and advise of the same.
CHRISTIAN STEGMAIER
COLLINS & LACY, P.C.
Shareholder
1330 Lady Street, Suite 601
Post Office Box 12487
Columbia, South Carolina 29211
(803) 255-0454 (voice)
(803) 771-4484 (facsimile)
(803) 467-9699 (cell)
http://www.collinsandlacy.com/Attorneys/Stegmaier.html
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