The experienced personal injury attorney realizes that the initial interview is one of the most important steps in the process of representing an injured party. This is the time when memory is at its best regarding how the accident happened and all the relevant details necessary to provide proper representation. Obviously it is important to obtain relevant personal information including all names by which the client has been know, addresses for the last several years, home, work and cellular telephone numbers, date of birth, social security number, driver’s license number and the date of the interview.
It is likewise important to obtain the traffic accident report number if available so that the report can be secured for future use. Once the report is received it is important to read the report closely and determine if there are any mistakes. If mistakes are found on the report, those mistakes should be pointed out to the investigating police officer as soon as possible. A corrected report should be requested and, if not provided promptly, the investigating officer’s commanding officer should be contacted if the mistake is critical to the case.
The client should provide any and all details of the accident including the location, date, time, weather conditions, vehicle information, witnesses, passengers, all parties involved as well as their personal information. If photos were taken at the scene of the accident they should be secured as soon as possible. If no photos were taken but the vehicles are available for taking photos, these should be obtained as soon as possible. Sometimes, if the vehicle is drivable, the client will have driven it to the interview. Office staff should take photos again, even if prior photos have been taken by anyone.
To be safe, the attorney should also obtain a copy of a photo i.d. of the client for future use when necessary. Similarly, it is good practice to obtain information of a close friend or relative in the event the client moves during the representation and fails to tell the attorney. One can not be too careful in making sure there are multiple ways to track down a client. Usually, clients keep their same e-mail addresses so it is recommended that all e-mail addresses for the clients be obtained as well.
If there are significant injuries involved, an experienced attorney might take the investigation of the case even further. For example, the attorney might do a criminal background check on the defendant. One might attempt to obtain the motor vehicle record from the Motor Vehicle Administration for the defendant. In major cases, it becomes important at times to perform what is known as an assets check to see if there are any significant assets belonging to the defendant that might make it worthwhile to attempt to obtain a judgment and collect it against personal assets if the insurance proceeds available are not sufficient to cover the judgment. Although awkward, it may also be important to do a criminal background check on one’s own client if there is any suspicion that the client is not being truthful or totally accurate in details. The last thing an attorney needs in court is to have the criminal background of a client suddenly surface and become important to the credibility issues in a case. It is much easier to explain away admissible evidence before it is used in cross examination rather than allowing defense counsel to impeach the client mercilessly under cross examination.
Any time the attorney represents a client on a contingent fee basis, it is required under the ethical rules that the attorney have the client sign a written retainer agreement setting forth the nature of the fee arrangement and other important things. Similarly, since the attorney will need to obtain all the client’s medical records applicable to the claim and perhaps pre existing medical records, the attorney must have the client sign a medical authorization permitting the release of medical records and bills to the attorney. If a minor is involved in the accident, the custodial parent should sign the retainer agreement and medical authorization on behalf of the minor. If there is a death involved, the Personal Representative of the estate of the deceased should sign the retainer agreement if a claim will be pursued on behalf of the estate.
In the event there is health insurance involved in paying medical bills the attorney may request the client to sign an authorization to obtain a copy of the health insurance plan documents. This occurs because health insurance carriers attempt to obtain reimbursement from their insured when payments have been made because of injuries sustained as a result of an accident with a third party and the third party is found responsible for damages. If Medicare or Medicaid is involved in any payments, particular care must be taken to assure repayment to Medicare for all payments made by them for related medical bills in the accident. Failure to do so could result in severe financial penalties to the client and/or attorney. Moreover, the client may be sued by their own health insurance carrier for failure to reimburse the carrier for payments made in third party cases. The insurance company may also refuse to make further payments under the terms of their coverage until a credit for all payments made but not reimbursed have been captured. Finally, some insurance companies may simply cancel the insurance contract for failure to comply with its terms and that result could be catastrophic to the client if there are other underlying conditions for which they are treating or a serious medical condition is determined.
If a lost wage claim will be made by the client, the attorney may also want to obtain lost wage information as soon as possible. This may involve having the client sign a release for the wage loss information from the employer and a release of tax records from the Internal Revenue Service if the client is unable to provide tax returns. Hopefully, the client will be able to provide pay stubs for at least six week prior to the injury as well to further corroborate the claim. Any overtime missed and claimed must be proven as well as any part time employment. If the client has used accumulated leave for the time missed, that leave is entitled to be bought back by the client so the lost wage claim should be made under those circumstances as well. Sometimes it is helpful to obtain an authorization from the client to obtain Social Security Earnings information. If a client has not paid taxes on earned income, making a lost wage claim becomes very problematic and the client must be advised of the perils of making such a claim.
An area of concern in assessing value of a case is the determination as to whether there were any underlying health problems the client suffered from at the time of the accident that in any way impacted on the injuries sustained in the accident. All relevant prior medical information should be obtained to make sure there is no overlap in claims being made by the client if there is any suspicion that perhaps the client is embellishing the claim in any way. It is much better to resolve those issues before the actual claim is made with the insurance company rather than have the insurance company or defense attorney use those pre existing medical conditions to affect the credibility of the claim being made.
In serious injury cases it could become important to have corroborating testimony as to the effects the injuries from the accident have had on the client. Thus, personal friends, work associates, pastors, relatives and the like should be identified as possible witnesses. Juries sometimes like to hear from independent witnesses to assess the real impact of the injuries on the plaintiff. Similarly, if there is going to be a loss of consortium claim made by the spouses because of injury to one or both of them, the parties should be advised that they need to consider all aspects of that claim. Indeed, a loss of a physical relationship for a period of time is compensable but, unless it is significant, the juries do not necessarily even want to address that issue.
Our office always advises our clients to make sure not to get more treatment than actually needed to recover from the injuries sustained. We are of the opinion that a jury likes a client who only gets the treatment needed and stops treatment when it is no longer necessary or helpful. Frankly, if a jury believes the client is fabricating injury or gets more treatment than necessary, it is our experience that the jury will therefore not award sufficient damages because of their concern for over treatment. On the other hand, it is very important for the client to be a compliant patient. This means they should, to the extent possible, make all their doctors appointments and therapy visits until discharged. Indeed, it is also important to tell the client that they should be a good historian with their doctor and physical therapist. If a case comes to trial a year or more after treatment stops, the physician will likely not remember the client very well and therefore will have to rely solely on their medical records. If the records do not have a good history of the complaints of the client, the doctor will not be able to verbalize what the client felt. Therefore, clients must communicate clearly to the physician about all physical complaints the client has suffered from the time of the previous visit so there is a good running history of the physical complaints and the progress of treatment.
Sometimes these personal injury cases can take months or years to resolve. Memories obviously fade over time. What seems so important at an early stage of medical treatment does not always remain in the forefront of a person’s memory. Therefore, we always advise clients to maintain a diary or a calendar upon which written notes can be entered regarding the pain felt at any given time and the restrictions on physical ability or life altering concerns as a result of injuries sustained. This does not mean that the client needs to write down a chapter each day about their lives. Rather, it only means they should make a short entry indicating the level of their pain and what they could not do that they would have been able to do but for their injuries.