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Questioning Witnesses and Initial Investigation

    The unfortunate reality for defense attorneys is that they get into the fray late.  By the time they receive a file from the insurance carrier, the memories of witnesses are just as faded as the physical evidence.

 

    Whether a case is won or lost at trial, three, four or five years down the line often is determined by the quality of the investigation done immediately after the dust settles from the accident or occurrence.  Admittedly, most cases never get to trial and insurance companies are understandably reluctant to investigate "full bore" on every case.  But, as a law professor of mine once said, if you're going to spend the time, money and effort to investigate at all, do it well and do it thoroughly the first time . . . it may be the only time you'll get to see the witness or photograph the scene before the witness or evidence shows up on the witness stand against you.

 

    Too often witness statements are taken without "focus" and, despite lengthy pages of questions, miss the legal point(s) entirely.  Likewise, physical evidence that could be pivotal to a case at trial is inadequately documented or overlooked altogether. 

 

I recall a quite serious construction site fall case in which the claimant was allegedly knocked from a ladder by an automatically activated receiving dock gate.  One key issue at trial was whether or not the property owner had adequately posted warning signs, which would have provided the claimant notice of a potential hazard in his placing his ladder near the electric gate.  A 20-page(!) statement was obtained by the investigator from the claimant early on in the case.  We knew from the statement where this man had worked for the past three decades and what he had for breakfast that morning.  But . . . the investigator never asked the claimant if he read English.  The evidence did show that there were warning signs posted; unfortunately, Mr. Garcia couldn't read them.

 

    The following three blogs are offered to provide guidelines and suggestions to the law office investigator, paralegal or field claims person on obtaining and preserving information that will be helpful to the trial defense lawyer.

 

Donald D. Wilson

dwilson@carnaclaw.com

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