Early and Thorough Investigation
This is also the point in a personal injury claim where the insurance adjuster who will be handling the claim is also trying to collect important information for establishing liability and setting accurate insurance reserves, thereby making this a time when the narrative that the claimant wants to present to the insurance company can first be shaped by presenting information to the adjuster.Accident Investigation
Obviously, there are many types of injury incidents, and exactly what is involved in the investigation of an incident will primarily be based upon the circumstances. However, some very common types would be traffic incidents – motor vehicle versus motor vehicle, and motor vehicle versus pedestrian or bicyclist – and premises liability incidents like “slip-and-fall" or “trip-and-fall" incidents.
Hopefully, a traffic incident will have a law enforcement traffic collision report prepared for it. In California, traffic collision reports are generally prepared either by the California Highway Patrol or by local police departments. The California Highway Patrol is usually very responsive to traffic accidents within their jurisdiction -- most state highways/roads and in unincorporated areas. Unless the local CHP officers are especially busy with other incidents, they are usually quick to respond. Local police departments are more or less responsive to traffic accidents depending on how busy they are and their response policies – some departments will only respond to “serious” accidents, which usually means either very significant vehicle damage and/or accidents involving injuries.
Anyone who has been injured in a traffic incident should request that the law enforcement agency with jurisdiction send an officer to the accident scene and prepare a report. This is by far the best way to start an accident investigation – it requests an official report by someone (the CHP or local police officer) who has had professional training in collecting and observing evidence from traffic accidents and who can act as a neutral witness in collecting statements and evidence. Not every traffic collision report is perfectly prepared – police and CHP officers are humans and subject to making mistakes like all of us are – but it is nearly always better to have a collision report than not to have one.
Most traffic collision reports are prepared and available within a week or two of the incidents. Reports related to major multi-vehicle accidents and/or some fatality accidents may take longer to be prepared. For example, the CHP has a specific team of investigators – their Multidisciplinary Accident Investigation Teams (MAIT) -- tasked with investigating and reporting on major traffic collision incidents. A report from a full MAIT investigation can take a few months or even longer be completed.
Many “premises liability” incidents, such as “trip-and-fall" or “slip-and-fall" incidents, occur in commercial and retail settings. Most of the larger businesses that operate these settings will have their own internal procedures for taking “incident reports” that document when and where injuries have occurred, which employees or independent witnesses observed the incidents and other important items of evidence. Although the businesses are not obligated to immediately share these reports and their details with injury claimants, it is essential to immediately put the business on notice of what happened so that this documentation of the details is recorded for later use.Accident Scene
A standard part of any traffic collision report will be a diagram of the roadway at and near the accident. It will typically show the vehicles' approximate position (or pedestrian/bicyclist) when the incident happened and the physical aspects of the accident scene that the investigating officer believes to be significant. This latter may include skid marks, vehicle collision debris, and the location where vehicles came to a rest, which can help show the mechanics of how the collision occurred.
An experienced personal injury attorney will review the traffic collision report as soon as it becomes available, and looking for anything unusual or unexpected related to the accident scene is a key task. If necessary, they may engage an investigator to go to the scene to collect photographs, measurements, or other details of the accident location. This information will often help prove the liability of the driver found to be at fault in the traffic collision report. At other times, it may point toward another driver be responsible to some degree. Or it may even point to such things as roadway design defects that the responsibility of local or statement government entities.
Much of this information can also be developed nowadays through data sources like Google Maps and Google Earth, which show overhead and ground-level views of the area, but which may also have different past views that show changes to the roadway over a period of years.
If a person who has been injured in an incident can safely do so, it is also beneficial to take photographs of their own at injury accident scenes. If there is no official report, this may be the only photographic evidence of the incident. In other cases, vehicles may be moved from where they came to rest after a collision to safer positions off the roadway, and photos of their positions before they are relocated can be very valuable. Any photographs taken by the business may not be accessible for a very long time for premises liability incidents – until a case is in litigation – so collecting photos immediately after the incident are key.Physical Evidence and Independent Witnesses
Skid marks can disappear after one good rain and wear away with time, even in dry weather. Gouges in the roadway left by vehicles involved in a car crash may be repaired by local transportation departments filling in potholes. An overgrown tree that obscured a stop sign during a vehicle collision may get trimmed back by the property owner or the city following the accident. A puddle of water on a supermarket floor may get mopped up just minutes after some slips and falls because of its presence. A car whose defective brakes caused a crash may be totaled and sent off to a scrapyard the next week. A business whose security camera captured a traffic collision as it happened may record over its camera tapes periodically.
These incidents are often witnessed by individuals who are not directly associated with either the injury victim or the person or business responsible for the injury. These “independent witnesses” can often be key for describing and proving how an incident occurred since they are generally viewed as neutral – not favoring either the potential plaintiffs or the potential defendants. Over time, however, the memories of witnesses can fade or gradually change.
Physical evidence disappears with time, and it’s crucial to document it and collect it while still available. Likewise, the memories of witnesses are impermanent and need to be collected as early as possible. For those cases where it may be especially significant, an experienced personal injury attorney will hire an investigator to document accident scene physical evidence and interview witnesses for their recollections.Who is the Defendant?
Promptly researching the potential defendants in a personal injury incident is an important task. This will immediately point toward insurance coverage that may be available to the victim from a responsible driver’s own insurance policy, from a vehicle owner’s policy (if the negligent party was driving someone else’s vehicle), from a negligent driver’s employer (if they were on the job when the accident occurred), and so forth. In a premises liability incident, these potential defendants may include residents, employees, owners of the property, business operating on the premises, etc. Knowing how all these folks connect with one another is key to understanding who may be legally liable, thereby making insurance coverages available.
Some basic research on a potential defendant can also point toward important undisclosed information. For example, a negligent driver who insists they have only a small policy limits coverage may need to be examined more closely if it turns how they live in an expensive home or own their own businesses. They may have additional umbrella policies or business insurance that they have not disclosed that may provide significantly more coverage than their basic auto policy. Getting a copy of the negligent party’s DMV record can also be illuminating – if, for example, they have a past record of causing traffic collisions or of drunk driving convictions, this may help substantiate a punitive damages claim against them or a claim against their employer if they were on the job.Who is the Plaintiff?
Clearly understanding who an injury victim is and how their injury has personally impacted their lives may be the single most significant way an experienced personal injury attorney can add value to a client’s claim. Injuries, medical bills, and lost wages are what they are – these are straightforward facts and numbers. How these facts negatively affect individual injury victims is how we distinguish one injury claim from another. Without this differentiation, it really is all just a checklist, as the insurance companies and their Colossus claims evaluation software would like us to believe.
Understanding early on in a claim how a client has been impacted by his or her injury allows an experienced personal injury attorney to tell that injury victim’s “story” by explaining the negative impacts in detail – the degree of pain and suffering, the full impact on their personal, family, and work-life, their loss of favorite recreational activities and hobbies, etc. This understanding also tells us who can best describe those details – sometimes it’s the victim, often it is their spouses, family members, close friends, and work colleagues.
Not every case will require this level of detail – hopefully, the victim will recover quickly and completely, and a detailed examination of permanent impacts won’t be necessary. But when that doesn’t happen, it’s best to be prepared and to be prepared early.Causation
Causation is simply proof that the injury incident caused the symptoms and injuries identified by the victim and his or her doctors. Sometimes causation will be very obvious – a major, high-speed traffic collision is obviously capable of causing significant trauma of many types, and causation may never really be a point of argument in a subsequent personal injury claim. At other times, however, where the physical forces are less significant, it’s important to know early on whether further proof of causation in the form of medical opinions, biomechanical evidence, and/or accident reconstruction may become necessary. Knowing this as soon as it is practical can help point toward pieces of physical evidence that may need to be preserved or inspected by engineering experts. It may point toward medical specialists who are best trained and equipped to explain how particular injuries were caused by the incident.
At other times, an injury victim may go into an incident with either pre-existing injuries similar to the injuries suffered in the accident and/or unusual susceptibilities to injury that make them uniquely vulnerable. Knowing this is the case early on will help an experienced personal injury attorney assemble and explain the relevant evidence and medical opinions to be ready for these arguments when they are later brought up by an opposing insurance adjuster or defense attorney.
An experienced personal injury attorney will be prepared to immediately begin investigating a new client’s case to promptly nail down the important evidence and facts that will form the basis of the claim’s value as it is presented and explained to an opposing insurance adjuster.
For more information on insurance companies, their claim tactics, and how an experienced personal injury attorney should deal with them, see:
- Types of Auto Coverage and First-Party vs Third-Party
- Insurance Company Tactics: Dirty Tricks Insurance Companies Play in Accident Claims
- Our Tools: How an Experienced Personal Injury Attorney Deals with Insurance Company Tactics
- The Insurance Industry and Individual Companies: Huge and Hugely Profitable
:GM cha [cs 2037]