00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Well, welcome to the show and today we're going to talk about investigating a personal injury case, or really any complicated liability case for your clients or for your practice. And as always, to help us talk about it, I have my law partner, Joe Caputo, and one of our top trawlers in the firm, Neil Solomon. Hey, guys. 00:42 Speaker 2 Hey, Jack. Hey, Joe. Happy to be here. 00:44 Speaker 1 Well, we are still in Covid land. It is January 2021. So we are all doing this remote, hoping that we get back to normal at some point in time. So some of the tips we're giving will be for when you don't have to be 6ft apart from someone and socially distant. But, guys, let's first talk about what types of cases do you see where investigations are really critical and that you run into on a regular basis? Neil? 01:16 Speaker 2 Yeah, so to take the easy answer, but really all cases, it's extremely important to get your investigation underway and get to work on it immediately. So witnesses, memories fade so extremely fast. And so making sure you're getting to them and getting the statements as soon as you get the names of any witnesses, and also tracking them down and trying to pin down alternate contacts and everything else, because people will disappear. I just had a case kind of right off the bat where it was a disputed lane change against an 18 wheeler where our client was run off the road. 18 wheeler flees the scene, and he eventually stops and comes back. But there was a witness that was listed on the crash report, but that person was gone. And so we're having to run traces to try to find this person's number. 02:05 Speaker 2 And when we track them down, they're literally in Montana as an interstate truck driver saying that it's gonna be hard for them to ever come and give a deposition. And so early on, reaching out to them, getting a recorded statement, whatever you can, I think is extremely important. 02:21 Speaker 1 And. 02:21 Speaker 2 And so to start out in those sort of motor vehicle crash, commercial cases, trucking cases, you definitely want to get that investigation started early and track down any witnesses. 02:32 Speaker 3 100% big damage cases. An investigation is not getting a crash report. It's not getting 911 call tapes and dash cam videos and looking at them later. It is thinking through the issues and getting some boots on the ground. And I can think of two that come to mind right away. When I think of doing something beyond what I hear people doing as far as investigations and Motor vehicle crash cases that were really helpful. We had a client up in Colorado that was hit by a driver who was driving under the influence of drugs and she was significantly injured. How had a surgical recommendation went through with it. And she had a small insurance policy under her own UIM insurance policy. 03:23 Speaker 3 And the personal policy, which is all we knew about of the person that hit her was a state minimum, which in the state of Colorado is even less than in the state of Texas. It's $25,000. And so we still ordered all of the dashcam video. We wanted to find out more information about where this guy had come from. And when we pulled the dashcam video, we watch it right away and we can see that he's wearing what looks like a shirt with a company logo on it. And so we hired a company to zoom in and get a legible copy or a still photo of this guy's shirt. And this guy was essentially doing janitorial work for three different banks for a company. 04:08 Speaker 3 And he had a $1 million source of recovery insurance policy that was essentially providing insurance for him as he was traveling on this specific day. And so I didn't tell police that he was on the job. Never would have found this information out any other way other than looking at the dashcam video, wondering why he has a collared shirt on with a name that you wouldn't get at a store, and then opening up a policy through them. And then I'll always remember, it was one of the first trucking cases I worked on. We did something similar. We pulled all the dashcam videos via open records requests and you could hear in the background. So it's a disputed liability case. 18 wheel truck hits my 18 year old gal somewhere in Texas. 04:59 Speaker 3 And you can hear two onlookers at the scene not talking to police, but talking to each other, saying. And pointing across the street and saying that a female left the trucker's cab after the crash. And this person was not on the crash report. But obviously somebody in the truck with my, you know, with. With the defendant in a trucking case very much piqued my interest. So we filed suit right away and we didn't let on that we knew about this. I take the deposition of the truck driver and he tells me that his accountant, his female accountant, was joining him in the cab. I could just tell you that upon further investigation, his accountant was not sitting there in the cab. But what it did allow us to do is to make some hay about the supervision and the training issues. 05:59 Speaker 3 And it ruined his credibility. Because he lied all over the place about who was really in the cab with him. And that small detail really helped us get triple or quadruple the value that we would have otherwise. And sometimes it's those small things that you see in that initial investigation that you need to follow up on that can really help your client. 06:22 Speaker 1 That is one heck of an accountant. 06:25 Speaker 3 She does everything. 06:27 Speaker 1 Does everything, man. Think of a few examples where the investigation really made or broke the case. We had a case one time where we got hired by a nice woman whose son had been killed. He was working at a construction site, driving to lunch with some buddies. There was four of them in this F250. They're going through an intersection, and they just get clobbered by a cement truck. The police put the blame on our client's vehicle. Three people were killed. Another had a very serious traumatic brain injury and remembered nothing about what happened. Looks like a very tough case because the crash report says our client ran the red light. So we hire an accident reconstructionist. And one tip is never take the crash report at its word for factually what happened. 07:27 Speaker 1 One person's interpretation of the information they were given by other parties, you know, other witnesses at the scene, which some of them are biased, like the driver. So we go do an inspection of the vehicle, and it turns out the cement truck was actually accelerating at the time of the collision. We get the light sequencing report, which is the sequence of how the lights change at the intersection. And it looks like the sequence of lights that the defendant truck driver said was impossible to have occurred. Then we got the 911 tapes and listened to all of them, which were. There was a lot because it was a really bad collision in a busy part of town. And one of the tapes sure enough said the truck driver ran the red light. So then we got the witness. 08:24 Speaker 1 We got an affidavit from the witness saying that they saw the cement truck run the red light. And we found three other witnesses that said the same thing. We actually presented it to the police to get them to change their crash report. And when they brought the truck driver back in to talk to him about it, he took the fifth amendment. And that case resolved very quickly for all of the money that was available. And I was really proud of the work we did on that case, because I don't think that if you don't peel the onion like that, you're going to find all of that evidence out. And we also wouldn't have known those things if we hadn't gone to the scene and looked at all that. 09:01 Speaker 1 Another interesting case that we've worked on was a case involving police brutality, where unfortunately, someone was killed after being tased by the police six times. And were able to get video evidence from the actual taser itself, which I wasn't aware was possible prior to working on, they're called 1983 causes of action, which involve when a government official hurts or kills someone and violates their constitutional rights. And so that evidence, that video evidence from the taser actually made the case to prove what the officers were saying occurred, had actually occurred in a different fashion. So. And we wouldn't have figured that out if we hadn't done research on tasers. So it's just interesting the different ways that you can. The different ways you can get evidence, especially now videographic evidence. 09:56 Speaker 1 And the third example that always comes to mind when I think of investigations is a construction death case we worked on a few years ago. I worked on this case with Burgess, one of the other partners in the firm, where the story that the contractor who was employing our client said happened put our client at fault. Well, we got the body cam from the investigating officer that showed up at the scene. And they showed up while our client was still on the ground. And actually people were describing what happened on the video camera, which contradicted what the employer said. And this is before body cams were being advised to be used in different or being required in different jurisdictions. So all three of those, the investigation made the case. And if we hadn't done those things, we would have lost. 10:51 Speaker 1 And in all three of those, our client was originally put at fault for what happened. 10:57 Speaker 3 Those are awesome stories, right? I remember another one, as you were kind of talking, involving a 100 year flood in Colorado, where we represented the spouse of a pharmacist who was helping a friend who was out of town take care of their cat and their friend. The pharmacist friend lived in a two unit, one above ground, one below ground condo of sorts or duplex. And there were stairs that you could enter the underground portion of the duplex from kind of the driveway area that the water kind of ran down this stairwell, penetrated the door. And while she was in there taking care of her cat, her friend's cat for maybe 10 minutes, the water got up 10ft high and she couldn't escape. 11:56 Speaker 3 And we had to show that the owners of that home, who had been leasing it out for 40 years to various tenants, we had to show that they had actual knowledge of the dangers that were posed by them not being up to code on these sorts of flood resources that they should have had. And so weren't going to get the defendants to admit that they knew this was a problem. And so we had to figure out, how are we going to creatively try to figure out who these tenants are when the opposing party has supposedly no paperwork about who these people were? 12:37 Speaker 3 And so we thought as far outside the box as we could, Contacting the mail service to figure out who had used that address as a mailing resource, Searching open records for any police calls or fire calls that had been made at that residence or over the last 10, 20 years to just try to find at least one tenant, maybe they would know the person after them or before them, to find old neighbors of this residence to figure out who was living there back in 1993. Or is it possible that they keep in touch with this downstairs neighbor? And it turned out, and maybe we got really lucky, but we found one tenant, which is all we needed, who lived there years and years ago, who said, yeah, this was an issue. We had to get the carpet replaced. 13:26 Speaker 3 Had a vivid memory of a flooding issue when it was how it came to be, and was also corroborating that the owners had knowledge of it. And that in and of itself was a casemaker made the whole case. But for kind of thinking outside of the box, I don't know that we survive a summary judgment motion in that case. 13:49 Speaker 1 Yeah, I remember that one. I think were the third firm that this client had tried to hire on the case, Because I remember when it came in, that was not a case that looked like a winner. 13:59 Speaker 3 No, no, it didn't. 14:02 Speaker 2 I do think that some. That particular case is some of your best work. It definitely was very impressive to be able to hold them accountable for. For what had happened. And I think not caring for their tenants as it happened. I always go back to, you know, as you said, Kathleen outside the box or going out there early. But, you know, I think back to actually going back out to the scene. And if you're brought onto a case early enough, I had a case years ago with a pedestrian who was hit by a bus. And so going back out to the scene and actually interviewing people that ride the bus at that same time who would have seen it that the police maybe didn't even talk to. And so were able to literally hang out at the bus stop. 14:46 Speaker 2 That bus arrives, and those people get off, and you just say, hey, I was hired to represent these people. I just want to know what happened. And you can find a lot of great witness statements from different people who are happy to tell you what they saw. You're just not going to find anything else unless, like you said, they just happened to call 911 or a police officer put in the report. And so getting boots on the ground is just super helpful in those types of cases. 15:13 Speaker 4 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zinda Law Group on, please reach out to us at 800-863-5312 or email us at infozdfirm.com and we can set up a time to discuss your case. 15:55 Speaker 1 When jumping to kind of a tactical question, let's say you talk to a witness. How do you guys document that? You know, because there's a lot of different ways you can go about doing that. But what's Yalls approach to capturing that witness's information to either present at trial or for your own files? So how do you guys go about getting witness statements and things like that? 16:17 Speaker 3 I'm very nice to them. It depends. The best way for your case is to convince them to make a record while you're speaking to them. Right? Because it's going to be impossible. Maybe not impossible. It's going to be very difficult for them to record whether it's audio or video. Video's best themselves in a statement about what they know now and then say something different later. And so when I've been in situations that allow for it, and not every situation allows for this, but Covid's kind of helped is try to get a video statement if it's in person. Let's get out the old video camera and dust it off. If it's during COVID times, let's see if a teams or a zoom or whatever people are using. If we have their permission to get what they know. And it's good for them too, right. 17:13 Speaker 3 They can tell the truth and hopefully by recording it now and then providing it later. Hopefully they don't have to be brought in and have their deposition taken or something that would involve more time or more stress for the person that's offering up what they know. And so getting A record of it, if you can delicately, is probably the best course of action. When push comes to shove, that's an option for you. 17:40 Speaker 2 Yeah, I think you really want to look into each particular case. A lot of times, unit may not want to take that recording or recorded statement. And so like you said, you're nice to the client. You're just trying to find out the truth. In any conversation, imagine you are being recorded, even if you're not. And I always started with, I'm just trying to find the truth. And that way, when asked later on, I can ask them that question. What do I ask you to do? I asked you to tell me the truth, and that's all I've ever asked you. And so you really want to get that out from them. And if it's not great for your case, that's okay too. You found out the truth, but you don't have to go out and record it. 18:15 Speaker 2 And so just kind of making sure you think through the issues and if it is good for you and you're concerned about where this person's going to be getting that recording, whether it be visually or video or whatever it is, I think is really smart. And I started doing that too, after talking with Joe about it before. So I think it's really helpful for your case. 18:34 Speaker 1 Yeah, and I agree. Do it in real time. If it's a good witness for you, don't try to reschedule it. Do it another time. Pull out your iPhone, Just say, hey, well, can I take a quick statement from you? Even you're going to depose the witness later, it can still be really useful to refresh the recollection prior to their deposition or if their story changes. You've got it locked in at a prior time, and you want to keep in mind the difference between a witness summary, which is your notes, which are going to be privileged in most jurisdictions, if not all, and a witness statement, which is a word for word statement of what the person said. And a statement also goes along with a video recording or a digital recording. 19:17 Speaker 1 So if we're having a paralegal assist with tracking down witnesses, we don't allow the paralegals to get statements. We will have them get a witness summary of what the person might say prior to us actually doing a recording. What about using an investigator? What are Yalls thoughts on that? You know, we have in house investigators we use, but they can't be everywhere. When do you want to go out and talk to the witnesses yourself and when do you want to hire a third party? To do that, or, you know, do you always do it yourself, Joe? 19:48 Speaker 3 My answer is it depends. What you don't want to do is create a conflict for yourself that would make you a witness in the case and prevent you and your firm from representing the client. You also have to take into account, you know, if you have one shot, and there are different types of witnesses where, you know, you're probably only going to get one opportunity to speak with them. You're going to have to weigh your options, to be honest. But if I only have one shot with them, I'd rather me take it than an investigator. But if it's in, you know, San Francisco versus some town with 5,000 people, I may send an investigator that is more like the people in the 5,000 town person community than some attorney in a suit that's going to go speak to him. 20:41 Speaker 3 So it depends on the venue and the situation. Don't create a conflict for yourself. But I definitely think investigators can be utilized. But if the investigator strikes out or isn't successful, and it's a very necessary witness, I don't know that you're going to get a second shot. And I'd rather bet on myself. 21:06 Speaker 1 Yeah, I think it's important to go personally. This is post Covid, obviously, but if it's a really important witness, I wouldn't be afraid to go to their house or their apartment to try to talk to them directly, because people will ignore phone calls, will ignore emails. But if you approach a witness and you say, listen, all I want is the truth, it's a very tragic story. You know, a young man was killed or a young woman was killed, and I represent the child. And if we can't find out what really happened, we're not going to be able to help get them closure. So would you mind just five minutes of your time to tell me what you know? 21:45 Speaker 1 That way, you're kind of giving them a reason to talk to you, and you're also pulling on their heartstrings a little bit, and you're hopefully getting them to give you the information you need. And also, if you have a bad case, you want to know it early on. You don't want to spend $100,000, $200,000, and then realize, oh, shoot, there's this witness that sinks our case. And trust me, if it's bad for you, somehow, it usually ends up popping back up. You know, no matter how unlikely you think that is, the defense is going to find that witness and they're going to show up at deposition time. So I like to find the bad evidence early on in the case. Neil, what are your thoughts on getting witness statements? 22:25 Speaker 2 Yeah, if it's a really important witness, I like to be the one on the call with them myself because I'm the one that's going to be talking to them later, whether it be at a deposition or trial. And so you can actually kind of build that rapport with the witness. So that's part of it, to Joe's point, I think, where it makes a difference if we're trying to either hunt someone down or get some statements, and it's a more rural community finding that local investigator from the area, they're going to be worth their weight in gold, just in local knowledge of who knows who. That's that person's uncle, and he knows them, and they all go to church together. 23:02 Speaker 2 So really using that resource and finding someone local, and you can either ask around about who that person might be or even just literally looking up in the phone book about who's out there, and you'll probably get a pretty good result for not too much of an investment early on. So I definitely recommend that. 23:19 Speaker 1 What about social media, guys? I feel like that is a treasure trove for our investigations nowadays. What luck have you guys had in searching online or using social media to find evidence in your cases? 23:33 Speaker 3 I've had some really good luck and some really bad luck, and I think I'll start with the bad luck first. If you all are representing plaintiffs and you don't make it clear before, during, and after your first interaction with the client not to post on social media about the case, about their injuries, and unless they would want the jury and the defendant to see it, then you're making a mistake. Because the last thing you want is, you know, a surprise. And, you know, they've been posting on social media all of the marathons they've been running. Meanwhile, we have a life care planner saying they need lifelong care and will be at a nursing home in six months. And those two things don't align. And so I would be very cognizant of being aware of what your clients are putting on social media. 24:25 Speaker 3 And if it's bad, don't pull it, because you may have to produce it. But get out there from the start and don't let them do that. But on the same end, Facebook and TikTok and YouTube, these are treasure troves. I know, Burgess, and you have a bunch of good stories on things that they've pulled, but we had a trucking case with disputed liability against a Mom and Pop Trucking shop. They only had a couple of units, but definitely a liability dispute. One of the first things we did is look the company up and there wasn't a lot of info. They hadn't been in business very long. They didn't have a lot of DOT stops and violations because I think they'd only been in business for six months. But the driver did have a video, several videos on his Facebook profile of wherever his vehicle. 25:19 Speaker 3 And it's the same vehicle that was driven in this crash. It's being driven by like 8 year old kids and they're like interchanging drivers. So it's a five minute video with eight year olds, like taking the keys, getting in the 18 wheel truck, like reversing it, parking it, tossing the keys to his brother. And so right away, I mean, I couldn't believe my eyes. But I said, holy cow, this is the same exact vehicle that was involved in the crash. And it's on the driver's Facebook page. I have a lot of questions about the rules that they're following when they're driving these trucks. And so I, like I said, it's a treasure trove to get information, but you need to make sure that it can be a sword and you may need it as a shield as well. 26:07 Speaker 3 And it can be good and bad. So make sure that you utilize what you can, but also make sure your clients are cognizant of how it can be used against them. 26:17 Speaker 1 Use a sword or a guillotine. I remember a case I worked on when I first started practicing where we represented a cab driver who was driving in downtown Austin and he got hit by what he swore was a drunk driver. And before the police could show up, they jumped in their car with their mom and went home. Well, lo and behold, the drunk driver blamed our client. The cab driver, who was foreign, had a real thick accent, who you know, would have a tough time given their deposition. And this is when Facebook was relatively new to the world. And we got on her Facebook page and keep in mind, you cannot friend someone that is considered an ethical violation. So it's got to be a public Facebook page. And she had posted the shots she had taken at the bar. 27:13 Speaker 1 And by the way, she was 20 years old, was not 21 yet. In every bar, she took a picture of herself taking a shot. And there was seven pictures that she had posted the night before. And then the following day after the wreck, she did the same thing again. So it was really great. At her deposition, which they're denying liability, they're denying she drank. They're saying our gal was at fault and just watching her face as we ask her about shot one, shot two, going through 14 shots. And that case resolved pretty quickly after that deposition as well. So social media is the best. 27:50 Speaker 2 I love it. Yeah, I think one of the, I think everyone, every attorney now has some good stories about stuff they found on social media. Good for the case and bad. And I think one thing to look for is it's not even just the person because a lot of people these days don't even use their real name on Facebook or social media. And so kind of digging deeper, using their cell phone number, using their phone numbers, using their emails to try to find those pages can be a really good way to dig in there and actually find someone that they put a fake name, thinks they're not going to be found. And oh, they are. 28:29 Speaker 2 And don't worry, you better watch that same thing with your client as well because I'll always remember someone's name on there shows up on their, literally even their zoom before a deposition. Semi related and it's money making. Smith is their name on their zoom profile. And it's like I thought we talked about, you put your real name on there so you gotta be careful with your clients before what they're putting out there to the world. Let them know that's what a jury could eventually see. 29:01 Speaker 1 Well guys, this has been a great conversation. You know, before we go, what is one tip that you would tell a young trial lawyer to follow when they're investigating their first case? 29:15 Speaker 3 These investigations can be such value drivers, especially when everything lines up. And so if you have big damages and you're starting your investigation and there's a cost issue so you're having to choose one method of investigation over the other because of the cost. Don't do it. Don't have to make the choice. Either work with a company that will help fund that investigation or call an attorney that you know and trust and joint venture the case with them. Because that investigation, if you do it well, will pan out and make the case, you know, five to ten times more valuable than having to essentially blindly pick a way to investigate and not doing it thoroughly in a big damage case. 30:07 Speaker 2 Yeah. To piggyback on that, I think one of the big things is don't take liability for granted on the investigation side. And so whether it be, you know, getting a witness or statement and not just relying upon it, the crash report says it's okay or even in a rear end collision, you know, I've had a case where the defendant rear ended our client as a big truck. And so you think, okay, it's clear liability. Well, next thing you know, you take his deposition, and they claim that, oh, he had been hitting his brakes, and our client cut him off. And it's like, well, actually, the ECM download says differently as to what you were doing. And so getting that physical evidence kind of piggyback on what Joe said, if it's a significant case, go spend the money and get it. 30:53 Speaker 2 And more often than not, it'll end up paying off for you. 30:58 Speaker 1 Yeah, I completely agree with that. Do not accept conceded liability because they won't concede it at trial. And someone told me a statistic. I forgot who, and I don't know if it was right or not, but that the plaintiff's lawyer loses 30% of CARA cases where the defendant rear ends them on liability, that wouldn't surprise me. That sounds about right, you know, so keep that in mind. And I would just say, get out of your office, get out, and go do the investigation work. You'd rather put in the time now than get through depositions, get through mediation, and then all of a sudden, you realize you had a terrible case and you put in hundreds of hours of free work. So do the work on the front end. This is a critical part of the case. 31:41 Speaker 1 And if you want to be successful at this practice and if you want to win your case, you've got to be great at investigating. And frankly, I think that's one of the big differences between doing defense and plaintiff's work, is we get out there at the front end. And I think it's one of the more fun parts of the job. So, guys, this has been a great conversation. I appreciate all the stories, and until next time, thank you very much. Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. To get notified about new episodes that are upcoming or been released, go to zdfirm.com/podcast to sign up for our mailing list.