Search Site
Menu
Facts vs. Law

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.

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    We would recommend Atty. Colleen Santora and the entire team at Feinberg & Alban highly. We had a major auto accident in 2012 and my husband also at a bad motorcycle accident as well four years after. We have always relied on her, She is a class act ...

    Read more

    Kyle Meahl

  • google
    5.0/5.0

    Attorney Feinberg is an excellent attorney with top level trial skills. He has given invaluable insight and knowledge on cases at trial that only an attorney of his caliber and experience could provide. I would highly recommend him and his staff.

    Read more

    Jeremy Carroll

  • google
    5.0/5.0

    I highly recommend this law firm to anybody in need of a excellent Attorney. Colleen is very responsive as well as friendly and caring!! I had a great experience working with her an as i mentioned above i would recommend her office.

    Read more

    Keri Pait

  • google
    5.0/5.0

    Marsha was experienced, very helpful and thorough. Absolutely wonderful to work with! I would highly recommend her and this firm to anyone!

    Read more

    Tedrina R

  • google
    5.0/5.0

    I would highly recommend Marsha Alban and her team. I am extremely happy with their work!!

    Read more

    Sasha Dubinsky

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form