A client does not receive compensation for his injuries just because there was an accident. Rather, the client must establish that the responsible party was negligent, i.e., made a mistake that should not have been made. This can only be done through evidence. Unfortunately, it is the responsible party, not the client, that, most often, controls this evidence. Once a lawsuit is filed, the lawyer must obtain this evidence through the process called "Discovery" in which responsible parties are supposedly required to "voluntarily disclose" relevant evidence as well as provide additional evidence formally requested by the accident victim's lawyer.
In fact, important evidence is not provided voluntarily and defense lawyers regularly call efforts to locate that evidence through documents and witness depositions as "fishing expeditions." Recent experience shows why this is not true and why accident victim lawyers must work hard to discover all important evidence..
In a case in which insurer misconduct led to the total loss of a client's business, basic policy manuals and documents guiding its employees were not provided. Because every business in the modern world has basic policy manuals, the insurer was asked to do so. In response, the defense lawyer represented that there were no such documents. (Actually, the defense lawyer first said that he did not understand what evidence was being requested and that basic policy manuals had no bearing on the case, calling the request a "fishing expedition" but when the Court finally ordered the policy manuals to be provided said there were none. One wonders why he did not say so in the first place but that is a different subject). Not surprisingly, when the first witness was asked the same question, the witness described a series of policy manuals. How can this happen?
I would like to believe that the defense lawyer was not dishonest but that economic incentives of the legal system lead to the defense lawyer being improperly ignorant. Because relevant evidence will lead to the responsible party paying damages, the responsible party has the economic incentive to be "Clintonesque, i.e., to feign ignorance by pretending either that one does not understand what evidence is being sought or by pretending that one does not have the knowledge to appreciate where the evidence is. After all, promotions and bonuses are given for bringing money in, not paying money out to accident victims. At some level, my guess is that defense lawyers also appreciate this but have the same economic incentive to be improperly ignorant, i.e., defense lawyers are paid by their clients to trust the client's word and "fight" to protect their clients from paying money to accident victims. While one may hope that the defense lawyer follows a higher standard and makes his own independent best efforts to locate relevant evidence that does not happen. When relevant evidence is uncovered, defense lawyers regularly say that, had they known about the evidence, it would have been disclosed. The important question is how could they not know about the evidence?
There is a reason that Columbus' expeditions to the New World were called "Voyages of Discovery" and not "Voyages of Confirmation" or "Fishing Expeditions." Columbus knew something was out there, just not the exact form of what he would find. The same is true for lawyers in discovery seeking evidence to help accident victims. It is because the lawyer cannot trust responsible parties to voluntarily provide evidence important to establishing legal responsibility that the lawyer must be thorough. See WWW. JUNELAWYER.COM
