Let sum up the point of this article with an aphorism: An old boss of mine had a nameplate on his desk that had in all capital letters the following, “YCDGLSOYA.” This was not his last name. It stood for “You can’t do good law sitting on your ass.”
I’m a former prosecutor, and I tend to conceptualize issues in that context. When I was a prosecutor, detectives and officers investigated each case, closed it out “by arrest,” sat the file on my desk, and I tried it. As a personal injury attorney, or private counsel of any sort, you are in charge of this initial step, the investigation.
If you speak to a good detective about his or her process, “corroboration” is used over and over. Corroboration, however, is a concept, not a practice point. The thought should permeate each step in your own investigation. Compare the conception of a criminal investigation with the conception of a personal-injury case. A client/victim/witness/citizen comes in and explains events. Based on each fact alleged, the attorney/detective/investigator/officer adds them up to equal a crime/cause of action/defense. Once you have these initial facts, the corroborative work begins.
For example, you have a client discussing an accident, and liability may be at issue:
I was driving in the far-right lane when I approached the light. It was yellow, so I went through it. There is a gas station on the right after the light, and that’s actually the first turn off following the intersection. It’s pretty close to the light. Another driver veered in front of me from two lanes over to make that turn. She slammed her brakes and I rear-ended her.
What do you have here? You have a client who rear-ended someone but maintains he’s not at fault. The other driver’s insurance obviously denies liability. It’s a rear-end accident, and your client is on the wrong end. If I tore this down into simple facts, it would look like this in three parts:
1. /“I was driving in the far-right lane/ when I approached the light./ It was yellow,/ so I went through it./
2. /There is a gas station on the right after the light,/ and that’s actually the first turn off following the intersection./ It’s pretty close to the light./
3. /Another driver veered in front of me from two lanes over/ to make that turn/. She slammed her brakes/ and I rear-ended her.”/
Each slashed division is a fact that could be corroborated. There are obviously parts of your client’s testimony that are going to be difficult to corroborate, the first set of divisions above. These may be repeated in the police report. The other driver may have seen the yellow two lanes over, considering how parallel she had to be with your client following the light. You may have a statement from the other driver to help corroborate that fact. You may also want a police officer to attest to where the vehicles were resting when he or she arrived. Photos of the scene or red-light cameras would be excellent, though they’re not always available. Compare that lack of confirmation with the distance from the light to the gas station, and there may be no other logical alternative but to accept what your client is saying.
About that distance: You should go to the scene of the incident. The second set above is objectively easy to corroborate or debunk and affects the other groups. You don’t need an investigator, a police report, or an expert to corroborate the second set. Just drive out there, take pictures, and measure the distance. It will take you no time at all, make it easier to argue in court, and put your case in a better place instantly. Or it may show that your client’s wrong and your case is awful. But that’s the point of investigation. You should leave the bad ones behind, but you can’t know they’re bad until you put in the work.
Finally, there will be new facts that come up. Body-worn camera or statements from the other driver for instance. These are your third sets of facts. You may be able to cross the other driver with what you already know, potentially skid marks at the scene where she slammed on her brakes. You may be able to impeach her with her statements. But these points are less able to be corroborated and more a target on cross than already corroborated facts.
I advocate for this strategy because I’m an advocate of breaking complex problems down into simple pieces. Investigating a case is a complex problem because people and the truth are complex. Each fact corroborated strengthens the whole. Get up and go figure it out one fact at a time.
About the Author
Matthew Finley is a trial attorney at Hampton Injury Law in Hampton, Virginia. He practices personal injury, worker’s compensation, and criminal defense. He can be reached at mfinley@hamptoninjurylawplc.com.