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1.   Understand the claimed "mechanism of injury."


2.   Understand the "insured's role” in the incident.


3.   Focus the investigation on the likely issues.


4.   Ascertain who the witnesses and parties are, and what they know.  But also determine    what they don't know.


5.   Preserve evidence.


6.   Remember that the claimant's task at trial is three-fold:


    First –   Prove negligence and/or other legal responsibility.


    Second –   Establish legal or "proximate cause" and


     Third –     Prove damages.




    Ask yourself first, what is the claimant's version of the mechanism of the claimed injury?


    Suppose for example a workman who falls from a temporary scaffold and impales himself on a wooden stake embedded in the earth below.  We will need to ask focused and directed questions about 1) the scaffold, 2) the wooden stake, 3) the claimant's activities before, during and after the fall and 4) others who may have contributed to or caused the incident.


    E.g., with regard to the scaffold, we must know who erected it.  Why was it placed there?  When was it installed?  Why was a temporary scaffold being used instead of a scaffold built for the purpose or a man-lift?  Who supplied it?  Who directed the claimant to use it?  What safety instructions was he given?  What warnings?  Did he see any evidence that it was unstable/unsafe?  Exactly how was it constructed and of what materials?  Were there any marking labels, etc.?


    Many similar questions should be asked about the wooden stake.  Did he see it prior to the accident?  What was its purpose?  Were there any caps or covers on it?  What about warning flags or signs?  Who installed it and when?  What exactly did it look like?  Exactly where was it located, relative to other known and determinable geographical reference points?


    What was the claimant attempting to do?  Why?  How exactly did he go about it?  What, in his opinion, precipitated or set in motion the fall?  How exactly did the claimant/’s body move in the fall and how did he land and where exactly did he come to rest?


    In one such case based upon just these facts, we were brought in as a cross-defendant three years after the fact.  Plaintiff's deposition had been taken prior to our entry into the case and the facts established to that time gave every appearance that our concrete subcontractor would be a target for allegedly having placed the wooden stake and for having failed to remove it at the conclusion of his work.


    But after we re-questioned the claimant more precisely in deposition about the mechanism of his injury, we were able to clearly establish that the accident actually occurred at a building which was adjacent to the building worked on by our client and that the concrete form staking was done by someone else entirely.  Moreover, the wooden stake did not in any way match those used by our client and, in fact, the precipitating factor that set the accident in motion was the fact that the wooden plank the claimant was using for a work platform had a large knot, which allowed the plank to break. Focused questioning thus established a foundation for a Motion for Summary Judgment.


Donald D. Wilson