Thursday, May 30, 2013

Why Clients Should Not Obsess About Invasive Discovery Requests

   In every case, the defense sends out standard discovery requests:  written questions called interrogatories and requests for documents.   The purpose of doing this is to get as much information about an accident victim as possible in the hopes of uncovering something that will cast doubt as to the accident victim's credibility, whether the accident victim has had similar injuries before, and the accident victim's earnings history.   Examples of these standard requests include the listing of every health care provider for the last 10 years and the name, address, and wage information for every employer.   The only way to respond to these efforts is to provide the information requested and recognize that the accident victim's past is basically an open book.

    Clients who are involved in a lawsuit for the first time are often overwhelmed both by the number of the requests, the detailed information being sought, and how far in the past information is being sought.  Here is what I tell Clients.

1.    With few exceptions, we answer all questions and provide all possible documents.   Because the Client is asking for money in compensation for injuries, the defense has the right to ask these questions.  If the Client  refuses to answer, the Client may be giving up any right to compensation.  More important, refusing to do so suggests that the Client has something to hide or lacks confidence in his case.

2.    Clients have nothing to hide.   To the extent that the questions focus on personal issues such as drug addiction or tax returns that have not been filed, I assure Clients that they are not the first persons to find themselves in this situation and that they have nothing to be embarassed about.  After all, it is the Client that was the victim of the defense's misconduct, not the other way around.   Clients should stand tall and stand proud.  Otherwise the defense wins.

3.    It is actually in the Client's interest to answer the questions and provide all possible documents.  Doing so creates new evidence to support the case, identifies new witnesses that are important, protects against overlooking issues, and, in the end, makes the case stronger. Never turn down the opportunity to make the case stronger.

4.   If the defense requests documents that the Client does not have, it is OK to say so.   So long as the Client has made a good faith effort to locate requested documents and confirm that, to the extent they may exist, the documents are not in the possession of the Client, there is no legal requirement that the Client needs to collect documents he does not possess.  All I ask Clients to do is to confirm whether they possess or control the documents or not.

5.  For the same reason, if the Client does not know a date or the address of a prior employer, it is also OK to say so.

The bottom line is that the Client should do everything possible both to eliminate any  excuse that the other side might have for not valuing the Client's case and to make certain that the strongest possible case is being presented.  If this includes providing information having nothing to do with the case, so be it.    The Client has to play his hand smartly.  See

Monday, May 20, 2013

Why Are Alaska Village Cases Challenging?

     I am in the process of finishing a case for a client from Wainwright, Alaska.  I also currently have cases involving accidents in Newtok, Kasiglok, and Kwigillingok.   Each of these communities are Alaska Native communities not accessible by the road system with small populations.    Even straightforward cases involving bush communities are challenging.  Here are a few of the reasons why. 

   Because the clients and witnesses live far away, in-person meetings are few and difficult to schedule.  There is no substitute for face-to-face meetings to discuss the legal and factual issues of a case.  If a client does not understand his case, locating witnesses, supporting evidence and making settlement decisions is more challenging. 

   The alternative to face-to face meetings is using the phone.  However, phone service to the smaller communities is not always reliable.  It is not uncommon to have to try several times before a connection is made.  If the person is not home, you may have no knowledge as to when he will be home. 

   In this day, people often maintain contact and send documents by e-mail.  However, internet service in the smaller communities operates either through phone lines or satellites and is slow. It is not uncommon for village residents to rely on community computers to check email which raises confidentiality issues.

   The last resort is always mail.  But mail delivery takes a week and can be to a General Delivery address which again raises issues of confidentiality.  If the mail requests a phone call or e-mail response, the concerns raised about these issues are raised again. 

   One is always reminded that the residents of small communities do not live the 8 to 5 existence.  Instead, they lead a subsistence life style which means that they can be gone to fish camp or may be hunting and fishing at night.  They "make hay when the sun shines" at different times than we do. 

   Trial becomes another challenge.  Just as it is challenging to communicate with clients, it is more challenging to locate and communicate with witnesses who do not have a direct interest in the case.  When trial comes, one also has to recognize the logistics of bringing the clients and witnesses to trial, including housing while in trial. Finally, one has to be careful with the costs which in the end are paid by the client. 

   The challenge is there but it can be met.  One just has to remember to play one's card hand smartly.  See