Personal injury attorneys cite pre-litigation work as key to success
By the time litigation begins in personal injury cases – even before a lawsuit is filed, for that matter – the attorneys involved have likely spent hours, sometimes countless hours, working on the case.
That’s because these cases, whether involving motor vehicle crashes, medical malpractice, product liability or something else, require careful investigation and analysis – and much of that work happens before a case is ever filed.
“A good deal of the work on a case happens before a lawsuit is filed,” said David Muncy, a personal injury attorney with Plaxen Adler Muncy, PA., in Greenbelt.
In every case, he said, attorneys need to gather their client’s medical records and bills from the injury, as well as relevant past medical records, lost wage information, information on the effect the injury has had on their life, comments from witnesses, and more.
In some cases, he said, reports from a liability expert or an independent medical examination or life care plan might also be needed.
“We also sometimes conduct pre-suit focus groups to test out arguments or approaches to a case,” he added. In medical malpractice cases, for example, “you cannot even file the lawsuit until you have an expert who has signed off that there was a breach of the standard of care by the defendant medical provider.”
“My preference is to be equipped with as much evidence as possible prior to litigation,” said Samantha Dos DeSantos, of Plaxen Adler Muncy. (Submitted Photo)
Investigating cases prior to litigation not only strengthens the case for settlement, said Samantha Dos Santos, also an attorney with Plaxen Adler Muncy, it limits the potential for surprises in the discovery process.
Often, she said, government agencies have reports, photographs, video footage and inspections that can be obtained through the Maryland Public Information Act, without filing a lawsuit.
“My preference is to be equipped with as much evidence as possible prior to litigation, particularly in complex cases involving premises liability or cases with catastrophic injuries, which may result in litigation,” Dos Santos said.
Depending on the facts of the case and the “creativity” of the attorney, she said, the work needed to be done before litigation may fluctuate, but there are many underutilized investigative tools that are available.
And, she added, there is a good reason to invest time and resources in pre-litigation work. If that investment is made, she explained, “there’s a clear potential to make the attorney’s life easier as the case progresses.”
Dos Santos, who has presented two programs on this subject through the Maryland State Bar Association, said she has become more innovative in recent years with investigating cases prior to litigation. Also, she added, “with technological advancements and accessibility growing, we are going to continue to see more materials become available prior to filing a lawsuit.”
The amount of pre-litigation work has not necessarily changed over the years, according to Ryan S. Perlin, a personal injury attorney with Bekman, Marder, Hopper, Malarkey, in Baltimore. However, the amount and type of data available has.
“Society has advanced technologically, and much of that technology impacts personal injury litigation,” he said.
attorney with Bekman, Marder, Hopper, Malarkey, in Baltimore. (Submitted Photo)” width=”209″ height=”231″ srcset=”https://thedailyrecord.com/files/2023/06/Perlin-cropped.jpg 209w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-145×160.jpg 145w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-113×125.jpg 113w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-128×142.jpg 128w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-136×150.jpg 136w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-100×110.jpg 100w, https://thedailyrecord.com/files/2023/06/Perlin-cropped-45×50.jpg 45w” sizes=”(max-width: 209px) 100vw, 209px”/>“Every case is different and the amount of investigation necessary is different depending on the circumstances of the case,” said Ryan S. Perlin, a personal injury attorney with Bekman, Marder, Hopper, Malarkey, in Baltimore. (Submitted Photo)
In some cases, for example, expert testimony will be needed, he said, and the pre-litigation investigation could include speaking about the case with experts that might include physicians, collision reconstruction specialists or product design engineers.
“We may need input about how traffic patterns are intended to flow, or how traffic control signals are programmed to operate,” he noted.
Even after the underlying facts are determined, Perlin said, personal injury attorneys need to apply the facts to their knowledge of the law, which could involve legal research or research in similar cases.
“Every case is different and the amount of investigation necessary is different depending on the circumstances of the case,” Perlin said.
The pre-litigation work, he added, is done not only to find information that could be proof of the client’s position for a possible settlement, but also to make sure that if a lawsuit must be filed, “we can present as strong and clear a case to the judge or jury as possible.”
Interestingly, and perhaps ironically, given the increasing use of technology in pre-litigation fact-finding, technology itself can be a major cause of the injury being litigated.
“Many defendants cause collisions because they drive while distracted by their phones, texting and social media,” Perlin explained.
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