Investigating The Claim
Before a settlement offer can be made, a lawyer must know what happened and how that can be proven at trial. These concerns will guide the process of litigation at every step. Once a lawsuit is filed, a lawyer gains power to compel opposing parties to turn over information about the occurrence. However, experience counsel will begin gathering evidence well before a lawsuit is ever filed. This type of investigation takes two forms: investigating facts and investigating liability of parties.
Fact investigation is crucial to determining the strength of a claim. Fact investigation truly begins as soon as the occurrence has happened. Clients may come to an attorney with photographs, videos, or written statements. On the other hand, they may come with only their word regarding what happened. A lawyer will act to investigate the occurrence and try to gather supporting information. A good analogy to this process comes from the criminal side of law. Police officers and detectives complete fact investigations for criminal prosecutions, questioning witnesses, taking photographs of the scene, and reconstructing the crime. This is the same process an attorney goes through for a personal injury case.
An attorney may hire a private investigator or conduct the investigation within the firm. This may take the form of visiting the scene of the occurrence or recreating the accident using software or models. The most powerful tool for attorneys is often interviewing witnesses of the occurrence. Attorneys do have certain obligations when dealing with parties, however. In Johnson v. Wiegers, the court caution that while an attorney is permitted to contact any unrepresented individuals, he or she must ensure that witness knows the attorney is representing the interests of the client. Documents, such a police reports, may also be collected during this phase.
Attorneys will also begin investigating the liability of the claim. This most commonly includes gathering insurance information from defendants. It may also include determining the status of an entity defendant, whether it is LLC, corporation, or partnership. Another important determination is whether any individuals were acting on behalf of their employer. Kansas recognizes the doctrine of “respondeat superior,” as recently restated in Jacobson v. Parrill. The basic idea of this doctrine is that an employer is responsible for the negligence of its employee when the employee is working. This can alter which insurance plan may cover the accident, as well as what assets are available to satisfy a potential judgment.
A lawyer may need to research the law covering an issue in the litigation. Even when an attorney has substantial experience in the area of law, each case will pose unique fact scenarios. For example, suppose the defendant is the manager of a motel and is required to stay overnight at the motel on a rotating basis to be on-call for emergencies. The defendant strikes a pedestrian as he is driving back to the motel from dinner, while he is on-call. Does respondeat superior apply? This is an unusual scenario, so an attorney would have to research the matter to determine if the employer was liable. Wayman v. Accor North America, Inc. determines that the employer is not. This type of research and investigation allows an attorney to determine which parties may bear liability for injuries suffered by the plaintiff.
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