Civil Cases Part 1

 

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THE INVESTIGATION OF CIVIL CASES PART 1

      Unless you are an Agent, checking on civilian cases, this area is mainly for Certified Fraud Examiners, Insurance Investigator’s, or private investigators.  Regardless of what type of investigation you are conducting, the first thing the investigator must do is analyzing the facts.  From the facts you will be able to formulate a plan of action that will determine whether or not enough evidence exists to sustain a lawsuit.  You will review the evidence.  If it does not fit the criteria that this examiner has taught in the previous fifty or so articles, than gather the necessary evidence.  The following case will exemplify a Detectives case prior to the involvement of an attorney.  

   The Blather couple awoke one morning to find that a large 50 gallon drum of oil had apparently fallen off a truck during the night and rolled into their yard, breaking the fence and several plants and shrubs.  Mr. and Mrs. Blather’s grass had been killed by the large oil spills.  None of the neighbors had seen what occurred because the spill was in the middle of the night.  They retained an investigator who expressed his doubt as to whether anything could be done since both were unable to name a defendant to charge in a lawsuit.  However he did agree to inspect the oil drum.  There was no evidence on the drum confirming the investigator suspicions, and instructed the Blather’s to go home and clean up and replant.  Thus the first objective of any investigation as you are well aware from previous articles is determine whether or not enough evidence exists to initiate a legal action.

     Obviously the objective of an investigation is to gather and organize as much evidence as possible to support your client’s position.  Just as in all the other cases this examiner has presented (See Fundamentals of Writing Part 3 the Narrative).  To review always write out a case outline which will organize and direct the investigation in a logical and coherent manner.  In this narrative the investigator must;

 1.      Denote all known facts

2.      Denote the objectives to be accomplished and the reasons for seeking those objectives.

3.      Note all the questions you want answered and information that warrants further investigation.

4.      Write down the steps in order to obtain the information.

5.      Denote in order of importance each of these steps, how much each will cost, which operative should carry out each step, how long it should take him, and how great the risk involved in each step will be.

6.      Assign to each step the portion of the existing budget that must be allocated to it, according to importance relative to all the other steps.  Even after prepping thoroughly you will find that most of your civil investigatory work will consist of taking depositions or statements form all available witnesses to the incident on both side of any dispute.  Look for effective demonstrative evidence and work out the outline consistently that demonstrates your client could not reasonably be held responsible in any way for the occurrence.  Remember a good personality by a well liked individual makes for a great investigator and great success.

      Collect all data on the economic loss, in terms of lost property, wages, and money lost in medical payments.  Here is where the Certified Forensic Independent Medical Fraud examiner shines, as you must understand continuing impairment or disability, pain and suffering as well as psychological hardship.  When a medical case, if you are an investigator, retain a Certified Disability Forensic Medical Fraud Examiner.  He is certified to determine disability and will demonstrate that expertise in court will be able to determine the prognosis or future hardships, and forensically recreate what pain and suffering both present and future detail.  See how a Certified Independent Medical Forensic Fraud Examiner is the Ideal person to work these types of investigations or work in Operations to assist the field Agents.  Accurately reconstruct everything that happened that was in any way connected with the incident.  This begins will all events that led up to the case through all the events that resulted from it.  When an examiner is experienced, he will be able to reconstruct the events so well that the trial lawyer will receive an almost complete case in which to insert his courtroom dialogue.  Your work will stand the test of judicial review no matter if you work for the plaintiff or the defendant, for an insurance company or an attorney.  The evidence speaks for itself. 

DECISIVE EVIDENCE WHICH WILL STAND THE TEST OF JUDICIAL REVIEW

      In order to present the court decisive evidence which will stand the test of judicial review is to scientifically/forensically, reconstruct what actually occurred so the Judge and Jury can see for themselves what transpired.  Decisive evidence such as video tapes, photographs, blackboard drawings, artists’ sketches, scale models or displays of the physical surroundings of the crime scene can make or burn a case.  I personally built evidence for preparation for trial, went through depositions where opposing council would confide in me after seeing my work products that they were on the ropes.  Yet although attorney’s on opposing sides are compelled to get along, many attorneys hate popular Experts.  Thus on the case I am referencing, a clear cut malpractice case of someone well and then becoming a paraplegic with lose of bowl and bladder, the egocentric pontifical and self-aggrandizing attorney’s wished all the glory?  After I provided him with three months of hard investigative forensic evidence where he could not even pronounce the evidentiary names correctly, he went on and lost the case!   How?  After paying my $300 per hour charges, he went out and bought what they perceived was an expert.  Of course he lost by allowing the other attorney, now aware that I was not present, to make arguments off the evidence subject.  If their arguments were good enough to keep the subject off tract, and the jury understood the case as along the new lines of argument.  A smart attorney, realizing the new expert had little comprehension of the complex materials I supplied the attorney and during my deposition, being quick on his feet he simply avoided discussion of the decisive evidence.  Absent decisive evidence, he changed the subject and won.  I would name the case however; a few egocentric attorneys have nothing to due with the quality legal Scholars.   In fact due to working with the late Melvin Belli on several cases and his number one trial attorney on three late cases in his career, we all learned much from each other. In fact four Birthday parties of the late and distinguished Honorable Melvin Belli, are memories I will always cherish.

     Melvin taught me that the more imaginative the attorney or forensic medical fraud examiner can be the more vividly clear the kinds of objects and devices brought to the courtroom were received.  I will now reference Volume 2 of the Honorable Melvin Belli’s Modern Trials pp. 920-1019.

    It is a fact that both attorneys and investigators of the many types often overlook obvious “decisive” evidence.  Mr. Belli notes the case of Fernandez v. Consolidated Fisheries 1953, 117 Cal App (2d) 254, 255P (2d), 863 relative to a small 56 year old street cleaner.  Mr. Fernandez was performing his normal street cleaning duties, and he noticed a fish truck pull up to a stop sign and stop.  Simultaneously he noticed a box lying in the street several hundred feet behind the truck.  Though he did not see the box fall from the truck he assumed that it had, and ran over to the truck placing his hand on the door describing to the driver he had dropped a box from the back of his truck.  Suddenly the driver torqued out from the stop sign.  Mr. Fernandez was thrown under the wheels of the truck and sustained a severe fracture of his thigh right femur (thighbone). 

     The Jury in the first trial decided in favor of the truck driver because Mr. Fernandez was found to have contributed to the accident since he was trespassing on the fish truck driver’s property.  Brilliantly however, a new trial was granted on a technicality, and the second verdict went in favor of Fernandez.  The reason was that the landowner or possessor of property has the duty to protect known trespasses against reckless or wanton acts.  Thus the drive failed to exercise reasonable and proper care after discovering Mr. Fernandez perilous situation in a reckless and wanton act.  Mr. Fernandez recovered $50,000. 

      The major difference between the two trials was the use of decisive evidence.  The late and great Mr. Belli was asked to re-try the case and the first thing he said was “How big was the fish box?”  This superlative point of reasoning as poor Mr. Fernandez a qualified decent person would have not reason to approach the truck if there had not been a fish box in the street.  Mr. Belli subpoenaed an appropriate box from the Fish Company and brought it into court for the jury to examine.  He also introduced as evidence during the “medical testimony” a photograph of the large scar on Mr. Fernandez’ hip as a direct result of the operation necessary to reset his fractured femoral head.  These two pieces of decisive evidence were major factors in allowing the second jury to deliberate with a comprehensive understanding of the facts and decide in favor of Mr. Fernandez.

     Lets look at a case in the Federal District Court of Idaho for further examples where decisive evidence made the case stand the test of Judicial Review.  A disabled man was suing for benefits on three life insurance policies held with one company.  Non-forensic or fraud examiner certified neurosurgeons testified on behalf of the insurance company.  They claimed that if the plaintiff were really injured in the manner and to the extent of his claim, the sole and heel of his one shoe would be much more worn than the sole and heel of the other she.  However because both shoes were worn evenly, his allegations of disability were false.  The plaintiff himself, was his only witness when he took the stand.  He explained that he only wore his “Sunday Shoes” to court and to the doctor’s office for examination.  His attorney then introduced his “everyday shoes” as evidence and it was readily seen that one shoe still had the original sole and heel and was worn out slightly, while the other shoe had become so badly worn that it had been completely re-soled and re-heeled.  The jury deliberated only twenty minutes before deciding in favor of the plaintiff.

   In section 2, this examiner will present decisive evidentiary cases and further, proudly cite the New 1998 January 1 Federal Rules of evidencee.  Then continue into complex analysis guided by the honorable late Melvin Belli Esquire.

“Ye shall have one manner of law, as well for the stranger, as for one of your own country.”  Leviticus, xxiv, 22

 by Dr. Scott D Neff, DC, DABCO, CFE, DACFE FFABS

© & TM 1998 American Academy for Justice Through Science. All rights reserved.