The initial assessment of the damages is the first step in evaluating a major case. The assessment requires a sophisticated analysis of the injuries and their relationship to the other aspects of the plaintiff's world.
There are components of damages claims that may not be readily apparent or are misunderstood. Recoverable damages may include loss of inheritance, loss of vocational opportunities, loss of future income, subtle but significant injuries such as neuropsychological impairment, foreshortening of life expectancy, implications of the injuries on other medical comorbidities, psychiatric damage, loss of parental guidance and nurture, loss of household services and consortium, derivative claims, loss of enjoyment of life, and the physical and emotional impact of the injuries upon the injured person and that person's family and world.
Although not every case has all of these elements of damages, each case must be reviewed to assure that proper steps are taken at the outset to solidify these claims. An accountant may be needed to assure that the outstanding income tax returns are properly prepared and are in order. The right physicians must be consulted. All necessary and appropriate medical tests must be done. The client must be educated as how to properly express his/her injuries to the healthcare providers so that accurate and permanent records are made of the complaints. Interviews of bystanders, family friends, co-workers, teachers and relatives may need to be conducted before time dulls recollections. Written statements, photographs, and videos may have to be taken.
Sometimes there are multiple causes of an injury. Consideration must be given to all of the possible theories of prosecution. In an ordinary negligence claim there may also be the basis for a viable products liability or medical malpractice case. In an automobile accident case there may be an accompanying municipal liability claim involving a defective roadway design that contributed to the accident. These are just a few examples of cases that can have multiple foci of prosecution.
In order to protect a client's rights, especially where there may be inadequate insurance coverage, the attorney must explore all of the possible theories of prosecution, some of which may not be apparent to the inexperienced.
It is equally important for the attorney to promptly recognize when there is not a case. It is in both in the client's and the attorney's interest that a case does not go meandering down the path of litigation for years only to find that the time, money and emotional investment on the part of both was in vein.
Unless there is a pressing statute of limitations that requires an immediate lawsuit, it ordinarily takes at least several months to properly investigate a case before commencing litigation. This pre-action phase can be critical to the ultimate outcome of the case. The litigation ducks must be carefully lined up, fed and groomed before suit is started in order to avoid disappointing surprises and to control any potential problems at the outset.
In products liability cases, inspection, photography and preservation of the defective product must be performed at the earliest time. It may be necessary to immediately retain experts to go to the scene of the accident, photographers to video and photograph the subject, and investigators to take statements from witnesses.
In medical malpractice cases the medical records must be obtained and reviewed, physicians, experts and witnesses contacted and, in death cases, an estate representative must be promptly appointed.
In all cases an inquiry must be made to determine whether there is or will be liens or claims by governmental or healthcare providers or others for reimbursement that might essentially eviscerate any potential recovery.It should be apparent that the undertaking of a major case requires a commitment by the attorney to invest a great deal of time, energy and funds in order to aggressively harness the forces that are necessary to lay the foundation for a successful prosecution.
Major cases generally require the retention of at least some experts at an early stage. These experts will often be the ones who will help direct the investigation and assess whether there is a sufficient basis to proceed into litigation.
There are experts and there are experts. Some are quick to find liability but whose opinions cannot be taken at face value whereas others have a defense bias which color their views. In my personal experience I have retained experts who have recommended prosecution of cases but could not logically or scientifically justify their positions. Whether they were not sufficiently knowledgeable or had some hidden agenda or personal motivation was unclear. Other experts have counseled against prosecution but, when pressed, were unable to support their position. Attorneys that regularly handle major cases are able to expose these predilections and weed such experts from their ranks. Over time, law firms cultivate a cadre of professionals whose opinions they value and who can be counted on to thoroughly and candidly weigh in on the scientific merits and detractions of the case.
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Sally and Denise
Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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