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Strategies for Providing Difficult or Complex Liability in Auto Cases

By William S. Bailey

Lawyers are not magicians as much we may want our clients to think that we are. The only way to prove liability in difficult or complex auto cases is sophisticated legal analysis and hard work, not smoke and mirrors. No amount of trial artistry or negotiation savvy will replace a lack of evidence to support the client's case.

IT ALL STARTS WITH A THOROUGH INVESTIGATION

The evidence that supports your liability theory or theories comes from dedicated and effective investigation. For the police, traffic engineers or others who investigate auto accidents, finding the facts may be the only goal, but for lawyers it is merely the starting point. Facts are useless to our client's case unless they can be converted into admissible and persuasive evidence. For example, measuring skid marks at a scene can be important. Unless these are recorded accurately by a witness with first hand knowledge who can testify at the time of trial, they are useless in presenting the case.

DO IT NOW

Evidence vanishes, disappears, evaporates into thin air. Witnesses forget. Tire marks on the pavement are erased by traffic. Dramatic wrecks of cars are repaired or junked. You may know the information, but unless you take the second step of a lawyer's investigation and preserve that evidence now in a form admissible at trial later , your knowledge is worthless.

Go get it now.

WHAT TO DO

Because the lawyer's task in an investigation is complicated by the need to preserve information as evidence, you cannot simply follow up leads and find out information yourself. What you know as a lawyer cannot be evidence. You cannot testify at trial as to crucial information unless you give up your role as a lawyer. Any investigation that you do requires that you ensure that someone else has testimonial knowledge.

Nonetheless, do it yourself. Go to the scene. Talk to the witnesses. The knowledge you gain by personal investigation will enormously enhance your ability to properly examine witnesses and to accurately and persuasively convey how the event occurred.

You also need to make sure what is found in an investigation is preserved as evidence in an admissible and persuasive form. As a trial lawyer you know the rules of evidence and principles of trial practice.