Case Intake, Pre-Suit Investigation

by J.G. "Gerry" Schulze.

I. Case Screening

A. The Call/the Email

If you hold yourself out as a personal injury lawyer, you should at least hope to get calls from

time to time. You can save yourself a lot of time and effort later if you take the call and talk to

the client about the case. Sometimes after a few minutes you can tell whether this is a case

you’re interested in, and if so, just how interested you are. Sometimes you can tell the client

you’re simply not interested. Other times you can invite the client to come to your office to see

you. Of course, when making that decision bear in mind that a lot of the clients you offer to

meet with in your office will not show up. Some cases justify sending a staff person out to

interview the client, or even going to interview the client in his or her home yourself.

Frequently the initial contact will come through email. I will usually respond by email. Let

the client choose the means of communication. But try to arrange for a telephone call, home

visit, or office visit.

See if you can find out how the client found out about you. This can be particularly

important if you’re spending any money on advertising.

B. The Meeting

It’s fairly common to have an interview sheet. The question is whether you want to ask the

client to fill out the interview sheet, whether you want to have a staff person fill it out with the

prospective client, or whether you want to do it yourself.

There are some advantages to having the client fill out the form in the waiting room (or on

the Internet). Certainly it saves you time. The client may be able to fill out details such as the

identity of his/her doctor, previous injuries, and the like more efficiently than he or she can tell

you in person.

My preference is to do it myself whenever possible. Some clients perform poorly filling out

forms. Some are intimidated by forms, particularly if they are long, detailed, or full of irrelevant

questions. The longer your form is, the more likely it is that it will contain some questions that

are simply not applicable.

When you do the interview yourself, you can simply skip irrelevant questions. What you can

do is listen to the story and find out what the client thinks happened. I tend to do this before

filling out anything in the form. You can always go through the form later.

I like to interview the client in my office when possible, but sometimes it’s better to go to the

client. There are many advantages to interviewing the client in your office. The first is that you

can show the client around the office and he or she can see what kind of lawyer you are. Of

course, sometimes it’s better not to do that, particularly if your desk looks like mine sometimes

looks.

There was once an advantage in going out to see the client that you would not be interrupted

during your interview—something often hard to avoid when you’re in your office. These days,

with cell phones, there seems to be very little way to avoid being interrupted no matter where

you are.

One of the great advantages of

interviewing a client at your office is

that you can scan or photocopy all the

relevant documents your client brings.

There are portable scanners, but

they’re somewhat inconvenient to set

up.

Another great advantage of

interviewing a client at your office is

that you can use Google Earth or

Google Maps to get the scene of the

accident. I have a touch screen computer in my office, and you can draw on the screen with a

stylus. That allows me to get the story of how the accident happened, pull up the intersection or

the street, and have the client identify exactly what happened where.

You’re going to have to go into some background on things like employment and particularly

prior injuries. Emphasize to the client that if he/she has ever had a claim before, the insurance

company for the other side will know about it.

Many sources recommend that you tell your client to take down any Facebook page,

webpage, and the like. I think that’s too extreme. Remind the client that whatever you post

online is likely to be discovered, even if you have so-called privacy settings on your account.

John Barrow and Col. Glenn

John Barrow and Colonel Glenn

Manor and Ascension

Rivermarket 2010

RiverMarket 2006

Rivermarket 1994

Find out what documentation the client has. Some will have the accident report. Frequently

there are medical bills. Find out if the client gave a recorded statement. Did anyone get pictures

of the automobiles? Did your client? Does your client still have the pictures? With camera

phones, photos are fairly common these days.

Was there a call to 911? Sometimes that can be important. Was an ambulance sent to the

scene?

Explain the basics of the claim process and your fee. Explain that you can’t predict what will

happen, and you certainly can’t say how much the client’s case is “worth” from the beginning.

There are never any guarantees, but in car wreck litigation sometimes there aren’t even any

reliable guesses.

Get contact information about someone other than the client who could reach the client if all

the sudden the phone number, email, etc is not reliable.

Find out about social media and make sure your client is aware of the hazards of putting too

much information on social media.

C. Documents to have signed

You will certainly need to have the client sign a written retainer agreement. I have different

agreements for different cases. Sometimes my fee is higher than others. When I’m at my office,

this is easy enough to do. I can print the contract out as I need it.

Medical, work, and other authorizations are also important. With HIPAA in force, medical

releases look like a complicated, intimidating wall of text. But you must explain to the client

what it is and why you need it. I usually have the client sign two different versions of the

release. One is for me. It will allow me to talk to the doctor and get whatever information I need.

Another is for the defendants. It conforms to the Arkansas Rules of Civil Procedure and Rules of

Evidence, and is substantially less complex.

I also have my clients sign a general “Notice of Representation.” It’s a simple form, but

it works when I want to get information from anyone who is a non-health care provider. Also, it

is good for proof to the defendant or insurer that I represent the client. There’s no need to give

the insurer my contract.

Take advantage of the opportunity to get relevant photographs. If your client does not have

pictures of the car, and it’s not yet fixed, go out to the parking lot and get some pictures if

possible. If your client has any visible cuts, bruises, seatbelt marks, or other visible evidence of

injury, it’s a good idea to take a picture. One larger firm I was with always got a picture of the

client for the file. It was possible that another lawyer or staff member might have to deal with

the client, and it was convenient to have a picture in the file.

Obviously you want a copy of any relevant documents the client has—particularly the

accident report or the form filled out by the other driver with insurance information.

If eyewitnesses are important, it may be a good idea to call the eyewitness from your office

during the initial interview. Ask questions first, then ask to take a quick recorded statement “so I

don’t have to write everything down as we talk.”

II. Initial Client Interview/Questionnaire

The one I use is attached. They are all over the Internet. See

http://www.mlhlawky.com/form_pdf/auto_accident_q.pdf (19 page interview sheet)

http://www.sharminlaw.com/library/west-palm-beach-car-accident-client-interview-

questionnaire.cfm (About 10 pages)

http://www.injurednc.com/CarAccidentQuestionnaire.pdf (2 pages)

III. What You Can Find Out before the Claim

Find out as much as you can about the accident, of course. Find out what you can about the

client. What’s his or her educational background? Any military service? What about work? What kind

of job does the client do?

It is extremely important to get your client’s medical history. Any previous health problems are

likely to be used against him or her. Any prior claims will be used against him or her. Any prior on the

job injuries will be used against him or her. Any police history, even arrests that did not lead to a

conviction (as if the client always understands what counts as a conviction) can still lead to evidence

against the client.

Get whatever you can find out about witnesses.

Of course you will explore the consequences of the accident. How badly is he or she hurt? Was

there any time lost from work? What other activities have been limited? What about pain? Has there

been any pain like it before? How has the injury affected various important aspects of the client’s life?

Family, sleeping, sex, hobbies, appetite, whatever it may be.

Find out about your client’s living situation. What relatives live with him/her? What non-

relatives live there?

Explore the client’s emotional situation before and since the accident.

Has the client had other lawyers before? On this case?

What are the client’s expectations? Do they think this is the next McDonald’s coffee case?

Does the client understand your role? You’re not a psychologist or a minister.

With the client sitting right there—Google him/her. There have been numerous cases recently

involving discovery of social networking sites. My recommendation is to object to fishing expeditions,

but recognize that a judge may well authorize one.

Social networking sites are often a fine source of information. If you know someone’s

email address you can check to see if he or she is on any one of dozens of social networks

(www.spokeo.com). Don’t take spokeo.com as a completely reliable source, however. It

identified my (now) late Mother-in-Law as an 85 year old African-American man married to a

41 year old European-American woman who—surprisingly—went by her initials, the same

initials as my late Father-in-Law. How exactly they gave my in-laws a sex change (my Father-

in-Law posthumously) and somehow associated them with each other at an address and indeed in

a city where my Father-in-Law had never lived remains a mystery.

You can always look at a public profile, or a public blog, and gather information about an

opponent. Hope A Comisky, William M. Taylor, Don’t be a Twit: Avoiding the Ethical Pitfalls

Facing Lawyers Utilizing Social Media in Three Important Arenas—Discovery, Communication

with Judges and Jurors, and Marketing, 20 Temp. Pol & Civil Rts. L Rev. 297, 303 (2011).

The real question comes down to the private information. And remember, on Facebook

“private” information may be shared with a few thousand of your closest friends, and depending

on your privacy settings, any of their closest friends. But unfortunately, that exhaustive friend

list usually doesn’t extend to the lawyer representing someone who is suing you. There is scant

authority, but the authority that is out there in general indicates that it is improper to send a

friend request to a party you are suing. Philadelphia Bar Ass’n Profesional Guidance Comm.,

Op. 2009-02 (Mar. 2009). It is also improper to accept a friend request if that party does want to

friend the lawyer suing him or her. New York State Bar Ass’n Comm. On Prof’l Ethics Op 843.

The rules likewise prevent you from getting someone else to friend the party. Phila. Op 2009-02,

supra; Ark. Rule Prof. Conduct 4.1 [Truthfulness], 5.3 [Supervision] and 8.4 [Misconduct to

violate the Rules of Professional Conduct through the acts of another].

Are Facebook and similar “private” webpages discoverable? Obviously this is a new

area, but there are some cases indicating they might well be. Romano v. Steelcase, Inc., 907

N.Y.S.2d 650 (N.Y.S.Ct. 2010) has received a lot of attention. See Also McMillen v.

Hummingbird Speedway, Inc., 2010 WL 4403285, 2010 Pa. Dist & Cnty. Dec. LEXIS 270 (C.P.

Jefferson, 2010). Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008). There is other

authority that places enough of a practical limitation on this discovery that it may be less than

effective. In Patterson v. Turner Const. Co., 931 N.Y.S.2d 311 (App.Div., 2011) the court

reversed a blanket order and required the party requesting the discovery to provide “a more

specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or

conflicts with plaintff’s [allegations].” Id. at 312. See also Tompkins v. Detroit Metropolitan

Airport, 2012 WL 179320 (E.D. Mich., 2012) (refusing to allow a fishing expedition through the

private pages of a litigant, but commenting in dicta that if there was evidence that the Facebook

pages might actually be relevant on any point, the result would have been different. A picture of

the Plaintiff holding a very small dog [the judge estimated its weight at five pounds] and

standing with two other people at a birthday party was not inconsistent with her claims of

injury.). In In re Air Crash Near Clarence Center, New York, on February 12, 2009, 2011 WL

6370189 (W.D. N.Y. 2012) the Court compelled discovery of plaintiff’s decedent’s emails,

social media accounts, text, messages and instant messages but emphasized that the discovery

only applied to the extent the records pertained to a specific issue in dispute. In B.M. v. D. M.,

31 Misc.3d 1211(A) (N.Y.S.Ct. Richmond County) the court relied on extensive blogs by the

wife about her activity belly dancing, finding it inconsistent with her claim of total disability.

It’s amazing what you can find on Facebook. I have taken advantage of the system

Facebook has to allow me to download my Facebook activity over the years. It would take

hundreds of pages if printed out. Of course, a huge part of this is the listing of everything on my

page, which includes about fifteen invitations to play Farmville and other games. There are

numerous discussions with friends from high school years to today. But it’s not just the volume.

People will post pictures of themselves with guns, with stolen swag, and all other kinds of

incriminating evidence. See Social Networking Evidence in a Self-Surveillance Society, New

York Law Journal, March 10, 2009, p. 5 col.1.