An esteemed judge has said in a trial practice course that as between facts and law, facts are a hundred times more important than law. In these blogs I often deal with law but hopefully it is understood to be an essential framework – but only a framework- for case development. By case development, I mean finding facts that fit into the law. In this blog, I will talk to you about how we go about proving some of the elements of a case. What is the best source or evidence that will help to prove my client’s case?
I always look for percipient witnesses; that is the people who actually perceive an event. If it’s a car crash, a fall, a construction site accident, we need to ask: who was there, what did they see, what can they tell us about what happened, and what can they tell us about a mode of operation that has gone on historically. Please bear in mind that that last question may or may not not lead to admissible evidence. However, because we cannot rule out the use of such information it needs to be pursued.
We can do all kinds of research nowadays on the internet and that will help us learn about standards of safety in a particular industry, be it in construction or at a retail store. The research that is done will hopefully reveal some very important facts and questions to ask. These questions can come in depositions or other forms of discovery directed to the party that is being sued.
Another source of key information is business records. If the entity is a business, whether a corporation or not, several things need be considered: What kinds of records do they have that bear on the event? What kind of investigation was done? What kind of procedures are their employees expected to follow. All of that will come into play and provide at a minimum good background. There are written documents from which we can learn a lot.
Sometimes in personal injury cases, we encounter routine business practices. In the boiler explosion case that I tried and that you can find on this website, my client’s routine business practice came into play. I would like to give you a little background on this issue. In the depositions of the defendant’s employees, they said adamantly that though they had prepared this boiler it was not quite ready for my client’s work. However, my client was alleged to be impatient, got frustrated and tried to breach this pressure vessel while it was under pressure and despite their repeated warnings. When I discussed those employees’ deposition testimony with my client, he said that the defendant’s employees were absolutely untruthful, specifically that he was not warned in any way.
I then asked my client if he ever walked off a job when a vessel was under pressure and he said “yes”, that he had walked off jobs where the unit to be worked on was under pressure. I then got an idea. I sent him and a lawyer in my firm to go through boxes and boxes of records at his employer’s (who was not being sued) office to find out examples of just when and just why this employee, my client, would walk off a job. Sure enough we found over thirty such instances dating back to 1987 up to the time of his accident in 2007. In other words, there were thirty times that there were records of job cards indicating that the machinery was unsafe for work and that my client acted appropriately. We brought what is known as a Motion in Limine at the start of the trial to introduce those records. However, for various reasons, the judge felt that was not a business practice. But the judge made a very important concession. While the judge would not let me introduce the thirty or so job cards, the judge did let me ask my client: If this boiler were under pressure and you were informed that it was, would you continue with your job? Indeed, I asked my client when he was on the witness stand if he would ever open up a vessel under pressure. He answered that he would never have done so and had, in fact, left many jobs where the machinery was under pressure.
I like to think that I was imaginative in doing my research and by doing so it helped to achieve a very, very satisfying result.
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