If Your Case Is Stuck, Maybe You Should ‘Push the Button’
February 3, 2023
Reprinted with permission from the January 31, 2023 edition of The Legal Intelligencer © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
New Year’s Day-2023. Harrisburg. Union Deposit Road interchange with Route 83. As I got back to my open truck door, the other drivers cheered.
I’m sitting in our truck with my family at the intersection. There is no traffic to my left coming off of Rt 83. There is no place for traffic to come from on my right. My light has been red for two minutes. There is a local police cruiser stopped at the same light from the other direction; second in line. I’m car number four from the front of the line. A car comes off of 83, turns left, and goes in the direction I want to go. That should trip the light. Persistent red. Another minute. I’m just an impatient trial lawyer. The light should turn. The police officer will fix it somehow. That last 30 seconds seemed longer. How does one get a red light unstuck, exactly? Across two lanes of opposing traffic there is a pedestrian walk button. If I get out of the truck and the light turns green, I am going to have some very unhappy people behind me. I say it out loud to my wife and son, as I reach for the door handle. I’m going to go push the button. “What are we going to do if the light changes when you are halfway across the highway?” “The people behind us aren’t going to like it if you make them miss the light after we sat here this long.” I haven’t pulled the handle. They are probably right; the light will change, and things will start to move. No. It hasn’t changed yet, and nothing is going to change unless somebody does something. The next thing I know, I’ve made it to the other side of the street (on a run), went across the lane coming off of Rt 83, and I pushed the button. Immediate action. So much so, as I start back across the two lanes of opposing traffic (on a run), the guy in front of the police officer nearly runs me down. As an injury lawyer, you never want to be the case. I left the truck door open, so even though the light is green when I get close, I can hop right back in. But not before hearing all the drivers on either side roll down their windows to whoop and clap. I’m through the intersection turning onto the ramp for 83 North and the driver opposite, waiting because I have a green left turn arrow, claps and waves from inside her car. Maybe 2023 is going to be an ok year.
My dear lawyer friends, over the next thirty minutes of driving I could not help but see the parallels with our work. Each case, somewhere in its lifespan, lodges itself in some degree of “stuck.” It just won’t move. Let this be a reminder to us all: it is our job to find a button and push it.
With my injured clients, there are actions I can take to keep a claim moving. The holdup could be in our investigation; let’s get confident in the merit of our claim. Once we see the merit, then ferret out and grab hold of the proper case path. Do the legal research to fully understand a linchpin issue. Fill in any gaps on damages, so the other side can clearly see what we would present to a jury. Get the case positioned for trial. The suggestions below are simply a prompt for you to remember what you already know. If a case is stuck, maybe one of these will help brush off the moss and start the stone rolling.
– go to where it happened and knock on doors to find the witness you know is there;
– canvas the area and find the camera that has the footage which must exist;
– find and talk to the witness who used to work for the company that caused the problem (within our ethical bounds);
– take videotaped statements of strong eyewitnesses.
Develop the case path:
– get it out of our heads that a better offer is coming;
– call a colleague who can hear the case story fresh and then listen to their questions;
– gather people (including non-lawyers) and have a brainstorming session with a whiteboard…tell a fact of the case and let
them say out loud what they are thinking about;
– Go for a walk, think the case through, and come back and write down the plan.
Own the legal issue:
– read the jury instructions;
– read the cases in the jury instructions comments;
– write a brief, like we are supporting the claim to overcome the threat of summary judgment;
– see the factual holes that need filled in.
Make damages real:
– sit and talk with before and after witnesses so we can better explain the testimony they will offer (video statements for demand);
– go back over a list of medical providers and order records to fill in where they missed sending on first request;
– order the doctor’s narrative report;
– get a life care plan;
– call the medical lienholder and remind them we need the final numbers;
– have a doctor opine on the necessity of treatment and the reasonable and customary nature of the medical expenses;
– subpoena the employer for income loss records;
– get an economist report.
Posture for trial:
– follow whatever procedure is necessary to get an order/stipulation on case management;
– set a fact witness deposition date;
– set a corporate designee deposition date;
– read the last deposition and send follow up interrogatories and request for production;
– make a new demand;
– ask the Court for a trial date.
It has been said that being a trial lawyer is a calling. From day to day the call resonates more closely with Sisyphus or Solomon. On the best days, we perceive ourselves wise in excess of what we deserve. On the tough days, we grind it out to get the rock to the top of the hill. Most days, though, the traffic is just stuck and we need to scan for the right button which will give us the leverage to bring our clients closer to their goal. Go ahead, look around, find it, and push the button.