In most cases the alleged role as wrongdoer is pretty clear, but the claimant should define it anyway. The insured's alleged role in many instances defines the legal capacity and therefore the legal exposure.
For example, in a construction case, is the claimant suing the property owner for his alleged active negligence, passive negligence for failing to prevent the dangerous condition or for "non-delegable duty" to keep the property safe under a "special risk"?
The answer to this question will assist you in understanding the probable theories of liability against your insured.
Once the likely theories are outlined, you can then address your questions to witnesses and other investigation efforts and obtain a much more focused and relevant work product.
A seemingly clear-cut example might be the routine rear end collision. The theory undoubtedly will be inattention and/or speed. Knowing that, we should question everyone concerned about where their attention was at the time and what the approach speeds were at various physical reference points up to the point of impact. Always remain open to other possible explanations for the accident as you gather information.
Later, when we compile the evidence, perhaps we can show that the physical damage seen is not consistent in severity, location, angle of deformation, etc., with the impact described by the claimant. Or perhaps there are mitigating circumstances to explain the incident.
In some cases, careful investigation will mesh beautifully with information developed during discovery. Going back to our example of the rear end collision, perhaps facts will come out that establish that plaintiff's larger, heavier automobile with $2,000 in damage could not have been damaged by our client's car and, further, that the speed of impact to our car was only 4 – 5 m.p.h. and, therefore, could not have caused the injuries claimed.
In other cases, rear end impact claims may be deflated by evidence to show a sudden and unreasonable stop or unexpected backing by the claimant. Or perhaps that the claimant slowed to turn without signaling or that his brake lights were not functioning.
Donald D. Wilson