Auto Accidents from the Plaintiff’s Perspective: The Client Interview, Prelitigation Investigation & Evaluation
By Derek K. Burch

Benjamin Franklin’s famous quote, “By failing to prepare you are preparing to fail,” could not be more instructive to the process that should be embraced every time a new personal injury case walks in the door. Effective representation of any personal injury client begins with the initial client interview. In most cases, the initial interview or meeting will set the tone for how the case proceeds. Not only does this interview play a key role in evaluating the client personally, it is the lawyer’s first opportunity to begin the process of determining whether time and money should be invested in the case.

After all, most auto accident personal injury cases are handled on a contingency fee basis. If the case does not result in a recovery for the client either by settlement or verdict…everyone loses. So, a properly conducted interview with adequate time spent with the client will help conserve both time and expense which ultimately directly affect the client’s recovery and the profitability of a law practice. Whether the case is coming into the law firm as a new case or the case has been handled by another lawyer and is referred, it is difficult to overstate the importance of getting to know the client and finding out from the client how the accident happened and facts that give rise to a potential lawsuit. This is also the time and the opportunity to establish the guidelines of the relationship and how the case will proceed. The initial interview sets the stage for the way you intend to handle a personal injury case.

Most lawyers who don’t devote a substantial portion of their practices to personal injury litigation don’t fully appreciate the time and expense required to properly prepare, evaluate and successfully litigate a personal injury lawsuit. Before accepting a case, one of the first and most important considerations must be whether the lawyer has available the resources necessary to effectively prosecute the case. Experience has shown that most cases are settled with the best results only after the case is filed and usually close to trial. Because most cases are accepted on a contingency fee arrangement, time management is important, and as in any practice, time is money. The client should be informed in the first meeting how the case will be handled. The expectations of the client are a driving force in the attorney/client relationship and those expectations should be put into perspective from the onset.

When considering accepting an automobile accident personal injury case, ask yourself: 1) Is this a case I can afford to take? 2) Do I have the resources, both time and money, available to properly prosecute the case? 3) Am I willing to take the case to a jury trial? Keep in mind; it is a mistake to accept a case on the assumption it will settle quickly. If the client is to receive full compensation for the injuries sustained, the case has to be approached from the onset as if it will be filed and litigated.

Establish a Relationship With the Client

The initial client interview is the place to establish a rapport with the client that should continue and grow throughout the case. This time should be used to fully inform the client of the litigation process, and to lay the groundwork for honest communication during the course of the case. A client needs to know that you are genuinely interested in the case and that it will receive the time and attention it deserves. The case is the most important case in the office to that client and the client needs to feel that from the lawyer. At the same time, be just as candid with the client about the potential problems or pitfalls as you are the positive aspects as you discuss the case.

Although some cases may settle with the insurance company before a lawsuit is filed, the initial contact with the client must be approached as if the case will be filed and at some point this client with these facts will be in front of a jury. Preparation of a client for trial begins in this first office conference. You should very carefully explain the procedures that must be followed to get the case to the courtroom. This is essential so that the client will have a complete understanding of the procedures and feel as comfortable as possible with the process.

For example, in filing a personal injury automobile accident case, there exists the possibility of exposing the client’s entire medical and mental background to opposing counsel or it becoming public record. Be careful to point out the possibility of exposure of areas a client may consider confidential or sensitive such as medical history, prior history of treatment for mental illness, prior marital history and any criminal history. Such matters must be discussed and worked out before the case is signed up and money is spent on the case.

Every new client should fill out a questionnaire and provide specific information for your file. The questionnaire should include the following topics in order to assist with the evaluation of a new client and case:

• Family and marital history;
• Prior traffic violations, criminal history, etc;
• Employment history;
• Current employment information including salary, hours, supervisor, etc.;
• Prior injury claims, workers’ compensation claims, etc.;
• History of prior lawsuits;
• Specific information about the accident such as:

Date, time, location, how the accident happened, weather conditions, witnesses to the accident, whether law enforcement investigated, whether photographs were taken, whether the client was on the job and/or conducting employment activities at the time of the accident;

• Name, address, insurance carrier and other information specific to any other party to the accident and potential defendants;
• Whether the client has given statements, either by personal interview or telephone, to anyone;
• Types of automobile insurance coverage, including limits of coverage carried by the client; whether the client has major medical insurance coverage, disability coverage or other insurance that would cover the client for injuries suffered in the accident, etc.;
• Description of injuries suffered in the accident, including each and every medical provider whether client was hospitalized, if transported by ambulance, etc.;
• Prior medical history and whether a lawsuit was filed or claim made relating to any prior medical problems;
• Detailed information relating to family physician and all other medical providers during the past five years.

Obtain the Client’s Complete Medical History

The importance of obtaining a complete history of medical treatment cannot be overstated. The client should be questioned very thoroughly concerning his or her injuries relating to the case, as well as prior injuries and prior medical history. Because it is so important to obtain a detailed medical history as well as a history of other claims filed by the client, we ask the client to take home a multi-page questionnaire to complete at home. This questionnaire provides the client the opportunity to reflect on the discussion in our initial meeting and provide detailed written information for the file. Inevitably, the client omits information in the initial interview that could be important to the evaluation of the case, and this questionnaire provides another opportunity for the client to communicate and provides a ready source of information in the file for future reference.

It is virtually impossible to properly evaluate a case unless the client provides a complete list of all doctors, hospitals or other medical care providers relating to injuries suffered in the accident. In addition, if the client identifies any significant medical history, it is imperative that you learn as much as possible about that history and assess the impact of that history on the current case.

The client should be asked to sign medical authorizations, and each of the medical care providers should be contacted for copies of bills, medical records and reports. Always request your own medical records and bills. Whether the case is referred by another lawyer or the client brings in a stack of medical records and billing statements…always request your own set of medical records on the client. The only way to know you have all of the medical chart from a particular provider is to submit your own request with the client’s signed medical authorization.

Set Reasonable Expectations

Your initial interview is the best time to help the client establish reasonable expectations of the ultimate recovery. The client should be instructed concerning the handling of the case and the time necessary to process the case. One of the most common mistakes made by attorneys in interviewing a personal injury client is to not fully inform the client of the process he or she is about to enter. This should be discussed in the initial conference to determine whether the client is willing to contribute his or her time and participate to the extent necessary to properly prosecute the case. Another common mistake is to make statements about the value of the case that may prove to be unrealistic once the investigation is underway and other facts come to light. Don’t oversell the case. Encourage the client to ask questions and be willing to spend the time to fully answer these questions.

Another important aspect of the case that should be carefully explored when the client is first interviewed is the client’s attitude about his or her injuries and the compensation that should be recovered as a result of those injuries. This is part of setting reasonable or realistic expectations. Keep in mind from the initial interview and as the case proceeds your client, as a witness, should simply state his or her case and never exaggerate. Exaggeration has the effect of discrediting the entire testimony and turning the jury against a client. Cases are commonly reported where the jury returned a verdict for the plaintiff, but awarded little or no damages simply because they believed the plaintiff was overreaching and the injuries were exaggerated and the jury did not find him or her believable.

Most clients have never been to a lawyer, they don’t know what to expect and they have no experience in the legal arena other than what they see on TV or hear about in the news. They have no idea what to expect once the claim has been turned over to the attorney and time should be taken to carefully instruct the client about the process. They should be instructed not to discuss the case with other people. They should further be instructed not to sign anything or give anyone an oral or written statement about the case. Strongly encourage the client to stay in touch with you or with the legal assistant working the case. The single most common complaint clients make against lawyers arises from a lack of communication. I tell all clients, if they get upset, angry or frustrated or if they feel they don’t know what’s going on with the case, then they are not calling enough or staying in touch to be informed of how the case is proceeding.

Assess Client’s Appearance and Demeanor

Often appearances are as important as what is said. My test in every initial meeting with any prospective client is: “Am I willing to invest my time and money to try this case to a judge and 12 jurors…with this person sitting next to me?” If not, then I probably won’t take the case. The appearance and demeanor of the client should be very carefully assessed. Is this the type of person that a jury will want to help? My experience has been that a jury will look for a way to return a verdict in favor of my client if they like them and want to help them, even if the facts or liability are difficult. On the other hand, juries will find a way to hurt your client or find a way to minimize a verdict if they do not believe or do not like the client, even in a case with absolutely clear liability. If you don’t like the person or the case for whatever reason, there’s a good chance a jury won’t either.

Prepare the Client for Cross-Examination

It’s never too early to prepare the client for cross-examination. In describing the litigation process and what will take place at trial, describe and start preparing the client for cross-examination. On cross-examination, the client should be willing to admit those adverse facts that are clearly established and explain his or her position as favorably as possible. Play the “devil’s advocate” in discussions with the client. Determine in the initial interview whether the client is willing to accept the negative aspects of the case. The client’s willingness to accept the negative has an appearance of honesty and will improve other people’s impressions.

Many times a witness will hurt his or her credibility when the answer to the question asked by the opposing lawyer, even though harmful to the witness’ testimony, is obvious and the witness refuses to give a direct answer to the question. This causes the witness to lose credibility with the jury. Again, some of this should be discussed with the client in the initial interview or at least early on in the case to make sure the client is willing to accept what will take place.

Preserve Evidence

It is important to instruct your client in the very first visit how to preserve evidence. The client’s testimony at the trial may be greatly enhanced by the preservation of exhibits obtained soon after the injury. Photographs of obvious injuries should be obtained, receipts of all expenses that would not have been incurred except for the injury should be saved and photographs of property damage can be helpful in illustrating severity of impact. If these types of exhibits are not obtained early in the case, the evidence may go away or be destroyed and lost forever.

No matter the type of personal injury case, all available photographs and/or videotapes should be preserved. If photographs are not readily available, inquiries should be made as to whether photographs or videotapes were taken by an independent source such as the police, a newspaper, a television station, a bystander or a relative, and the sources should be contacted as soon as possible in an effort to obtain a copy of any photographs or other evidentiary material.

The Investigation

After the initial interview with the client, it’s time to begin your investigation. In the case of an automobile accident, I immediately obtain a copy of the accident report; I always personally go to the scene of the accident; and I always personally interview the investigating officer. In addition, statements should be obtained from all potential witnesses to the incident. Whenever possible, the statements should be recorded so there will be no question concerning the accuracy of the statement. In Oklahoma, it is lawful to record a telephone conversation as long as one of the participants in the call is aware that the conversation is being recorded. An investigator should also obtain photographs of the vehicles and physical damage at the scene.

Obtaining Documents and Determining Coverages

Accident Report. You need to get as much information as you can about the accident itself. It probably goes without saying, but you should always obtain the official Oklahoma traffic collision report if one was prepared. Many times your client will already have the accident report. If not, it can be obtained from the responding police department or from the Department of Public Safety. DPS also may have narrative reports, photographs and officer cam videos that you can request. In any fatality case investigated by the Oklahoma Highway Patrol, get a copy of the “Black Book” material. This information is critical to the evaluation process and in making sure the facts as related by the client are as stated.

911 Calls. In some cases, it may be helpful or necessary to obtain documents relating to the 911 emergency call(s). These will include the actual audio, transcripts of the calls and the dispatch logs. Many times this will lead to witnesses that are not listed on the accident report. There may be numerous calls to 911 by witnesses to the accident and each witness may have seen the accident from a different vantage point. Do not fail to get the 911 documentation for the accident. These tapes are usually destroyed after a certain number of days, so they need to be requested as soon as possible. If the accident involves a criminal investigation, the tapes may be in the hands of the local district attorney, and you will have to try to obtain them from the DA’s office.

Defendant’s Insurance Coverage. Unless the torfeasor’s insurance information is provided by the investigating officer or is listed in the accident report, there’s not a lot you can do to obtain the tortfeasor’s insurance information short of filing a lawsuit. However, many times the carriers will volunteer this information because they know you will get it from them eventually anyway. See 12 O.S. § 3226(B)(1), effective Nov. 1, 2004, which now makes it clear that any liability coverage can be discovered through a request for production of documents:

A party shall produce upon request pursuant to Section 3234 of this title, any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

If you are contemplating a policy limits settlement offer before suit is filed, you should make sure that any representations about the extent of the tortfeasor’s coverage include any excess or umbrella policies.

Uninsured Motorist Coverage. You will have to make sure you have the most recent and up to date declarations pages for any policy that might cover your client. Often times you will have to obtain those from the insurance agent or even directly from your client’s insurer. Even if the declarations show that there is no uninsured motorist coverage and your client doesn’t think they have any UM coverage, always ask the insurer to provide you with the signed rejection of coverage, signed by a named insured or the applicant, required under 36 O.S. § 3636(G).

Experts. As soon as possible, you will need to determine what kinds of expert witnesses should be retained. If liability is or may be an issue, you may need an accident reconstructionist. If traffic control is an issue, you may need a traffic engineer, etc. As is obvious, any expert should be selected based on his or her background and knowledge in the area that will be the subject matter of litigation. With the understanding that anything the expert receives is discoverable in a lawsuit, the expert should be furnished with as much detailed information as possible concerning how the incident occurred.

Evaluation. Evaluate, evaluate, evaluate. The case should be evaluated for both liability and damages from the very beginning, at the initial interview and it should continue throughout the case. Evaluation of liability and damages should occur continuously throughout the case, i.e., after the initial meeting, after compiling all of the client’s medical records, after interviews with the investigating officer and eyewitnesses, after each deposition, etc. Any case can be lost, but most cases will be favorably resolved, either by voluntary settlement or by a jury, if the proper evaluation is conducted at every stage of the case.

It should be carefully explained to the new client that every case has two parts…liability and damages. If you don’t have both, you probably don’t have a viable case. When evaluating the case from the onset, careful consideration and evaluation should be given to both liability and damages. Many times a set of facts will be presented in which someone did something terribly wrong but the conduct didn’t result in significant injury or damages. Conversely, a bad result does not necessarily mean there was negligent conduct.

Conclusion

Lawsuits, for the most part, are won or lost before you ever get to the courtroom, and this is particularly true of auto accident cases. It is the attorney’s duty to make a very thorough analysis of the case, to advise his or her client, to thoroughly prepare the client, witnesses, and evidentiary materials and to bring this preparation together in a well-organized presentation to the judge and jury. Thorough utilization of the initial client interview is crucial to successfully begin prosecution of an auto accident case. If thorough analysis and preparation are implemented from the onset, the auto accident case will proceed smoothly and with greater success.

About The Author

Derek Burch received his J.D. from OCU School of Law and was admitted to the Oklahoma bar in 1989. His practice areas include personal injury, wrongful death, product liability, catastrophic injury and medical malpractice cases. Mr. Burch is on the board of directors of the Oklahoma Association for Justice and is a member of the President’s Club of the American Association of Justice, as well as the Oklahoma and American Bar Associations.

Auto Accidents from the Plaintiff’s Perspective: The Client Interview, Prelitigation Investigation & Evaluation
Published 79 OBJ 495 (March 8, 2008)