Cost control for the minor-injury auto case.

In today's computerized, beat-the-clock world, courts demand lawyers to participate in one-day turnaround trials and meet unrealistic discovery deadlines. At the same time, litigation costs continue to rise. In this pressure-cooker environment, saving pretrial time and money is a necessity for any plaintiff attorney preparing one or more motor vehicle collision cases for settlement or trial.

Here are some cost-cutting and timesaving measures that can be used during the preparation of a relatively minor auto collision case. They should not be used in a catastrophic injury case, which requires spending substantial sums of money on investigation from the moment you are retained. But in a garden-variety case, you must determine which expenses can be delayed, defrayed, reduced, or eliminated.

These tips are analogous to an ammunition-saving technique I learned as a Marine rifleman in Parris Island, South Carolina. Learning to control when I fired the gun helped me to conserve ammunition until the final assault. Similarly, trial lawyers should limit as much spending as possible until trial approaches.

Many hours of wasted time and much expense can be avoided if an immediate and inexpensive preliminary investigation is done to determine whether there is a good case of liability. You must teach yourself and your staff to collect important facts that will reconstruct the collision.

The time to start thinking about collision investigation is during the initial client interview. The more time you, your secretary, your legal assistant, your paralegal, and your investigator spend getting an accurate description of the circumstances of the crash and collecting the witnesses' names and addresses, the less time you will spend answering interrogatories, preparing for depositions, and searching for answers to liability questions at trial.(1)

During your client interview and case screening, rate the potential gross value range of your client's case. You can rate the value as small, medium, large, or extra large; or as type 1, 2, 3, and so on. You can then assign a reasonable range of expenses. This is a good way to help fix a flexible and reasonable budget for all of your client costs.

The key to saving time and expenses is to get your staff involved in case investigation. Obtaining accurate information or witness statements, taking photographs, and making reasonably accurate scale drawings are teachable skills.(2) Almost any adult armed with curiosity, a camera, a tape measure, and a pad of witness statement forms can be shown how to interview a witness or take photographs of an automobile crash scene, an injured client, or the damaged vehicle.

The 1,000 words saved by a single snapshot means that every personal injury office should have one or more cameras loaded with film to photograph client injuries, the outside and inside of client cars, crash scenes, and so on.

Here is a list of investigative equipment you should keep on hand:

1. still and video cameras with film, tripod, and lighting equipment;

2. ruler, yardstick, tape measure, measuring wheel for measuring linear distance, calculator;

3. maps, street directories, phone directories;

4. modeling clay, plaster of paris, molding materials, or a carpenter's contour gauge for preserving and documenting impressions, holes, or elevations;

5. plastic bags of various sizes, labels for evidence;

6. tools in a tool box, flashlight, jack, and a rolling pallet called a "creeper";

7. dictating machine and tapes;

8. witness statement forms with carbon copies and instructions;

9. prepared diagram forms and graph paper;

10. notary kit;

11. exhibit stickers with the law firm's name, address, and telephone number;

12. business cards and predrafted letters of introduction; and

13. written instructions for use by the investigator.

You should also establish relationships with companies that produce aerial photographs and an auto body repair shop to document property damage.

Equipped with the necessary supplies, you and members of your staff can launch a thorough case investigation. Here are important steps to take:

1. Determine if the drivers' sight lines were obstructed.

2. Consider second-impact causes and effects.

3. Investigate possible intoxication or fatigue of each driver.

4. Investigate any alleged or perceived mechanical failures that might have caused or contributed to the crash.

5. Look into any employment or agency relationships of the at-fault driver to establish respondeat superior or other possible liability coverage.

6. Determine the point of impact of the vehicles.

7. Determine the point of rest of the vehicles.

8. Calculate time and distance for each driver from the point of first observation to the point of impact.

9. Graph and diagram the time and distance calculations to scale.

10. Identify and interview all sight and sound witnesses.

11. Interview police personnel who investigated the crash, including police photographers.

12. Interview thoroughly all emergency medical technicians (EMTs) and tow truck personnel.

13. Canvass the neighborhood for any other witnesses.

14. Label and reproduce all photographs, videotapes, and audiotapes (including police/EMT tape logs) related to the incident.

15. Match the client's injuries with the directional forces and impacts of the auto collision.

16. Prepare to refute the minor impact/soft tissue (MIST) defense, which asserts that the plaintiff could not have sustained injury in a collision with minor property damage.

17. Prepare to refute the seat belt defense, which claims the plaintiff was comparatively negligent for not wearing a seat belt.

18. Inspect and photograph all signs, signals, lines, and traffic devices.

19. Determine the posted speed limit.

20. Determine if the traffic violations resulted in guilty pleas, testimony, and/or other findings.

21. Obtain any defendant admissions made at the scene, in traffic court, in the emergency room, or to insurers.

22. Look for unsafe road conditions and consider a potential government tort claim.

23. Determine the client's prior medical and claims history.

24. Go to the scene with the client or eyewitnesses as soon as possible.

Do not overlook the fact that police officers, EMTs, tow truck operators, or others who were on the scene, as well as emergency room physicians, may ask your client or the other driver about how the collision occurred. People on the scene also may have audiotaped the "present sense impressions" or "excited utterances" of the driver at the scene.(3) Therefore, obtain any police or EMT tape logs as soon as possible.

Also, keep in mind that many commercial vehicles and some private cars, vans, and sport utility vehicles are now equipped with so-called black boxes, electronic crash-data recording systems that must be obtained, preserved, and decoded to establish speed, braking or steering conditions, and other information about the vehicle at the moment of impact.(4)

Inexpensive experts

Sometimes the best expert is the uncredentialed but experienced tradesperson--the "school of hard knocks" expert. For example, where injuries are relatively minor, I have found that a welder often can be as credible a metallurgical expert witness as an engineer--and a lot less costly.

In a recent case, an amusement ride tower collapsed onto a pier in Atlantic City, New Jersey. One local welder with more than 30 years experience determined and then testified that the tower collapsed because more than 50 percent of the welds were improper or nonexistent. His statement of fact avoided thousands of dollars in expert engineering costs in a case where the clients sustained only sprains, strains, and shock.

The best place to find those homespun experts is often right in your own backyard. You should develop a database that categorizes your friends, clients, and local trades-people according to their expertise. In auto cases where the MIST defense is being raised, local auto body repair professionals who have a Unibody machine, which measures slight variations in the frame and bumper damage of motor vehicles, have the expertise to explain the severity of the impact. For about $200, a repair professional can be just as effective as an engineer, who would likely charge you about $2,000.(5)

Local community colleges are another excellent source for experts. You will be surprised at the gold you will uncover in the untapped academic mines of local trade schools, community colleges, and universities. Some retired professionals who teach in local schools have a wealth of clinical and technical experience in engineering, biomechanics, medicine, and other of the forensic sciences.

If an expert asks for up-front payment in full that you can't afford, try to create an in* stallment plan or credit line with the expert. Arrange a periodic payment plan with experts so you can obtain their report and they can receive reasonable compensation over time for services rendered.

You must consider the admissibility of the expert and his or her opinions. Any expert--including an experience-only, or Federal Rule of Evidence 701 lay opinion, witness--must meet the threshold requirements of Daubert or Kumho.(6)

Trial exhibits

In my practice, I have found that some of the best and least expensive demonstrative aids come out of brainstorming meetings with my clients, witnesses, and people in my own community. Community experts include signmakers, painters, and other artistic people. Often, clients and their friends and relatives will have ideas for how to visually demonstrate how the collision occurred or how the resulting injuries have affected the client's life. Family albums, photographs, videotapes, and vacation souvenirs may be useful in demonstrating the "before and after" status of the plaintiff's life and activities.

In pretrial preparation, conducting focus groups or mock juries with input from clients and experts is a great way to improve your visual strategy or demonstrative presentation for trial.(7) High school physics books or college texts on anatomy and physiology often contain good illustrations that can explain to a jury how an accident occurred, how an injury resulted, or how an injury is causing permanent pain.(8)

Here are places to look for inexpensive demonstrative exhibits:

1. Government agencies: Many municipal, county, state, or federal agencies have aerial photographs of almost every square inch of their jurisdictions. There are also private companies that if provided longitude and latitude will provide aerial photographs of almost any area in the world.

2. Junkyards: Almost any type of car or car interior can be found in these places.

3. Doctors' offices: These may have color illustrations and videotapes with simple explanations of operative procedures, physical therapy, and common injuries.

4. Hobby shops: Miniature replicas of vehicles can be purchased and used to create a docudrama video or a scale model. There are models for almost every vehicle that is manufactured.

5. Community colleges: These are good sources for graphic artists, architectural surveyors, model builders, and medical illustrators.

6. Trade schools and trade unions: These are good sources for inexpensive carpenters and builders of courtroom model exhibits.

7. Newspaper libraries, children's bookstores, and the children's section of libraries are good sources of understandable illustrations, maps, and diagrams.

You can also use equipment you have in your office to make your own exhibits. If you or members of your staff are computer savvy, you can use Power Point or another desktop publishing program to make charts for use in the courtroom. Some attorneys have photo enlarging machines to make photos big enough for courtroom use. If you don't have an enlarging machine, you can use your word-processing program to type text--for example, key parts of testimony--in large type. Print out the pages and mount them on foam-core boards to make your own billboard-size trial exhibits.

Conserving pretrial costs

You can save pretrial costs--or, more accurately, save your ammunition until the time of trial--by conducting fewer videotaped depositions in garden-variety cases. Once you depose an expert using videotape, the defense usually shows that videotaped testimony to the defense expert, who usually criticizes and comments to the jury on your doctor's testimony. Also, videotaped depositions can become stale before the case reaches trial.

Ask your expert to testify during trial. If that is not possible, try to wait until the trial starts to schedule the videotaped deposition. This postpones the expense of the expert's testimony until you are certain you need it--when trial has started and settlement may be impossible.

I have found that most trial judges are accommodating if the expert cannot appear in court and a videotaped deposition must be scheduled for an evening during the trial. This will usually satisfy most trial courts, but you should research the viability of this technique in your jurisdiction.

Another cost-conserving plan is to use rebuttal witnesses rather than try to anticipate and disprove the defenses in your case in chief. If the defense threatens to use a biomechanical or forensic expert to testify that the minor injury could not have occurred, use rebuttal witnesses rather than trying to anticipate this defense.

The use of any rebuttal witness is an exercise in trial strategy that requires careful attention to your state and local rules and customs. Rebuttal witnesses in some jurisdictions need not be disclosed. If they are disclosed, their reports need not be furnished to the opponent because their opinions will depend on the testimony of the defense experts.(9) Again, this tactic postpones the time and expense of using an expert until it is absolutely necessary. If the defense chooses not to call its experts at trial, you do not need to prepare for and rebut them. Remember, however, to research whether your planned rebuttal will be permitted by your trial judge.

Drawing up a written synopsis of what the expert has reported orally is less expensive and time consuming than waiting for the expert to supply a long typed document with an appendix. In a small case, getting an oral opinion from a treating doctor over the telephone, synopsizing the opinion on paper, and having the expert sign a copy of your synopsis is a cost-saving device and an expeditious way of advising your adversary about the expert's proposed testimony. Depending on your court rules, consider using this technique.

Caveats

Let me state three important warnings: First, do not make it your primary goal to avoid costs in a serious or catastrophic auto crash case. When your client has been seriously injured or has died, the case will involve substantial economic and noneconomic losses. In these cases, you should not restrict yourself or your staff to a shoestring budget.

Immediate efforts should be made to preserve the relevant physical evidence. If you do not preserve critical evidence--particularly the vehicles involved--and later the client seeks to prosecute a products liability claim, you may face a spoliation of evidence claim with the possibility of malpractice liability or evidentiary problems.(10)

All efforts should be made to retain the best liability and causation experts--whether their expertise is biomechanics or accident reconstruction. Remember, commercial trucking or bus accident reconstruction can be substantially different from motorcycle accident reconstruction, and both are different from reconstruction involving cars. An accident reconstructionist who knows about collisions involving one type of vehicle may not be familiar with the case-specific issues that other vehicles present.

If you can't spend money on investigation of a catastrophic case immediately, consider entering into a joint venture agreement with a cocounsel who can provide financing. Otherwise, in the best interests of your client, you should refer the case to another attorney.(11)

The second warning is that some jurisdictions--and some judges within each jurisdiction--are stricter than others. You must carefully consider the procedural, evidentiary, and substantive law of your jurisdiction before you implement one of my hold-your-fire trial tactics, such as using nontechnical or rebuttal experts.

My final caveat is that all personal injury lawyers must consider the physical demands of handling an auto collision case. If you believe that a personal injury jury trial is costly to your health and quality of life, then think about taking on a partner or establishing a referral relationship with another trial lawyer. One way to alleviate excessive mental or physical costs is to learn to enjoy the exercise. If you cannot develop a love for trying these cases, then at least try to use them as a learning experience that will improve your legal and advocacy skills.(12)

The client is a partner with you in the prosecution of a personal injury claim. If the client knows up front that the case will be handled within a reasonable budget and that by doing so you will maximize the recovery, then taking cost-cutting or cost-deferring measures can be a cooperative venture between you and your client.

Notes

(1.) Robert E. Cartwright Jr., Conducting the Initial Interview: Deciding Which Case to Take, ATLA Annual Convention Paper (1996), in vol. I, at 817; Amato A. DeLuca, Trial Considerations in Selecting a Plaintiffs Case, ATLA NCA College Paper (Oct. 18-22, 1997); James R. Moriarty, Trial Considerations in Selecting a Plaintiffs Case, ATLA NCA College Paper (Mar. 15-20,1997).

(2.) Larry E. Coben, Investigating Automotive Accidents, TRIAL, Mar. 1994, at 22; Charles A. Mathis Jr., Case Investigation, ATLA Annual Convention Paper (1993), in vol. I, at 217.

(3.) Fed. R. Evid. 801(1) and (2).

(4.) See `Black Box' Technology Creates Discovery Issues for Lawyers, TRIAL, Jan. 2000, at 56.

(5.) Thomas J. Vesper, M.I.S.T.: A National Insurance Defense Strategy and How to Counter-attack, from A to Z, TRIAL LAW., Jan.-Feb. 1999, at 47.

(6.) Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

(7.) Rodney Jew, Tap the Visual Power of Your Demonstrative Evidence: Develop a Visual Strategy to Strengthen Case Strategy, ATLA NCA Seminar Paper (Feb. 26-Mar. 3, 1994).

(8.) Stephen D. Heninger, Cost-effective Demonstrative Evidence, TRIAL, Sept. 1994, at 65; Linda Miller Atkinson, Cost Effective Demonstrative Evidence for the New Lawyer, ATLA Annual Convention Paper (1993), in vol. 1, at 951; Michael A. Ferrara Jr., Creative and Innovative Ways to Use Demonstrative Evidence in Your Depositions, ATLA NCA Seminar Paper (Sept. 9,1996).

(9.) 75 AM. JUR. 2D Trial, [subsections] 365-76 (1991 & Supp. 1999); Donald P. Lay, Mapping the Trail-Order of Proof, 5 AM. JUR. TRIALS 505, [subsections] 23-24 (1966 & Supp. 1999); William E. Aiken Jr., Annotation, Propriety, in Federal Court Action, of Attack on Witness' Credibility by Rebuttal Evidence Pertaining to Cross-Examination Testimony on Collateral Matters, 60 A.L.R. FED. 8 (1982).

(10.) See Thomas G. Fisher, Annotation, Intentional Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable, 70 A.L.R. 4th 984 (1989).

(11.) Thomas J. Vesper, Trial by Joint Venture, N. J. TRIAL LAW., Sept. 1993, at 31.

(12.) Ashley S. Lipson & Rachel L. Glick, How to Be a Less-Stressed Litigator, TRIAL, Jan. 1993, at 38; Amiram Elwork, Managing Stress, TRIAL, July 1994, at 18; Michael A. Ferrara Jr., Stress and the Trial Lawyer: Can It Lead to Ethics Problems and Worse? ATLA Annual Convention Paper (1996), in vol. II, at 1931.

Thomas J. Vesper is a partner with the law firm of Westmoreland, Vesper & Schwartz, Atlantic City, New Jersey.