old grandson. She is claiming neck,
back, right shoulder and right knee
injuries as a result of a light impact,
hit-in-the-rear motor vehicle accident
between defendant's box truck and
plaintiff's Toyota Camry. She was
treated and released the same day
from the ER and missed an initial
three months from work as a cashier
at the local supermarket. She missed
another three months from work
after arthroscopic knee surgery was
performed to repair an allegedly torn
medial meniscus. The surgery was
performed by Dr. X, a ubiquitous
presence in litigation circles.
quickly identify proximate cause as his
or her primary defense to damages. An
agreed upon plan must be established.
It is agreed that a thorough informal
search upon plaintiff and her family is
in order and the following information
is obtained:
are working young parents and they
have a two-year-old son residing in
the same apartment with plaintiff.
The daughter-in-law commutes
to Manhattan from the Bronx as a
marketing executive with a major
broadcasting company. The son is a
local carpenter.
supermarket chain that has a
company Facebook page and
several blurbs/photos regarding the
employees of the month and their
company gatherings.
supermarket is easily identified
during a Google search regarding the
supermarket.
media platforms; however, a quick
search on plaintiff's son reveals
that he is very active on Facebook
and posts photographs almost daily.
Several photos of the plaintiff are
seen during the initial brief search.
performed ambulatory surgery on
the plaintiff 11 months following the
accident, was the subject of a fraud
investigation several years prior to
the accident.
do with said information? A strategy
conference call should be held. An
under-utilized tool by defense attorneys
is a simple one, i.e, a non-party
deposition. Authority to conduct non-
party depositions of family members and
co-workers should be explored before
party depositions and expert discovery
proceedings even begin. In most state
court jurisdictions, a party may serve the
state equivalent of Rule 74 deposition
subpoena/notice once issue is joined in
the case.
some easily identifiable sources of
future impeachment evidence. The
traditional litigation chronology is to
serve an Answer to the Complaint, along
with discovery demands and a notice
to depose plaintiff. The depositions
and discovery process in general are
often delayed for months or years. The
quick non-party deposition approach to
the above fact patterns is effective on
many levels.
Non-party depositions of the
plaintiff's family members and supervisor
in the above fact scenario may yield
surprising results. The mere service of
the subpoena and notice directly upon
the son and daughter-in-law may rattle
the family and spur more reasonable
negotiations due to inconvenience on the
plaintiff's part. If plaintiff is undeterred
by the non-party deposition subpoena,
the depositions themselves may have a
chilling effect on their claim. In reality,
the daughter-in-law in the above case,
which was based on a real fact pattern,
did not want to be dragged into her
mother-in-law's personal injury claim. It
was evident that their relationship was a
bit strained anyway. When the daughter-
in-law was asked about whether she
knew of the plaintiff's prior neck injury
and expressed displeasure regarding her
involvement in the case and a heated
conference was held outside of the
deposition among plaintiff's attorney
and all of the family members. The
deposition of the son regarding his child
and whether the plaintiff was a loving
grandmother/caretaker yielded answers
regarding how active and wonderful the
plaintiff was regarding the everyday life
of the two-year-old grandson. The overall
result of the depositions of the family
members was that (a) the family did not
want their lives disrupted based upon
this light impact claim, and (b) that a
picture was painted of the plaintiff as an
active 68-year-old grandmother who was
fully involved in the grandson's life, often
as a babysitter and playmate (and not as
a disabled, immobile sufferer).
After an Offer of Judgment was
served immediately following the non-
party depositions, the case settled before
party depositions were conducted and
before experts were retained. A Rule
68 offer can be made at any time after
the plaintiff's lawsuit is filed, so long as
it is filed at least fourteen days before
trial. Fed. R. Civ. P. 68(a). The above
case settled at a figure under the reserve
amount initially set by the carrier based
upon the unfavorable liability scenario
and the surgery to the knee.
By an overwhelming margin, most
civil cases are resolved prior to trial.
Early litigation tactics, such as early
background searches and non-party
depositions, can provide several pieces
of evidence to help defendants "win the
settlement." Defense attorneys often wait
for the court to mandate mediation after
all of the party and expert depositions
are conducted rather than trying to
win the case in the initial pleadings or
discovery stages. Controlling the timing
of discovery and non-party discovery
leads to obtaining maximum leverage in
the litigation process and the best, most
cost effective results for the client. A
simple approach is often the best.