A lawyer must have knowledge on what happened and how that can be proven at trial before a settlement can be made. Concerns about what happened guide the litigation process at every step. Lawyers gain the power to make opposing parties turn over information about the incident after a lawsuit is filed. However, lawyers with experience in litigation will begin collecting evidence well before a lawsuit is ever filed. Investigation includes two forms: fact investigation and liability investigation.
Fact investigation is vital in determining the strength of a particular claim. The starting point for fact investigation is as soon as the incident occurs. Clients might bring videos, photographs or written statements to a lawyer. On the contrary, clients might come with only their word regarding the incident. The lawyer investigates the incident by collecting support information. This investigation is similar to what police officers and detectives do in a criminal case—question witnesses, take photographs of the scene and reconstruct the crime. A lawyer goes through this same process in a personal injury case.
Generally, a lawyer either hires a private investigator to investigate the incident or conducts the investigation within the lawyer’s firm. One of the ways a lawyer investigates is by visiting the scene of the incident or recreating the accident using software or models. Additionally, the most powerful tool for lawyers is interviewing witnesses. However, lawyers do have certain obligations when interacting with witnesses. In Johnson v. Wiegers, the court held that while a lawyer is permitted to contact any unrepresented individuals, the lawyer must ensure that the witness knows the lawyer is representing the interests of the clients. During this investigation time, documents (such as police reports) may be obtained.
Along with fact investigation, lawyers will also begin investigating the liability of the claim. The most common aspect of this investigation is collecting insurance information from defendants. Furthermore, the investigation may include determining the status of an entity defendant (LLC, corporation, or partnership). Also, determining whether any of the individuals were acting on behalf of their employer is an important task. Kansas recognizes the doctrine of “respondeat superior.” This doctrine was most recently stated in Jacobson v. Parrill and states that an employer is responsible for the negligence of its employee when the employee is working within the scope of his or employment. If a defendant is found to be working for his or her employer, this could potentially change which insurance plan may cover the accident, as well as what assets are available to fulfill a potential judgment.
Since every case poses unique fact scenarios, even the most experienced lawyer may have to research the law covering the issue. For example, suppose the defendant is a motel manager and is required to stay at the motel overnight on a revolving basis to be there in case of an emergency. During one of the nights the defendant is required to stay overnight, he or she hits a pedestrian on the way back to the motel from getting dinner. In this situation, would respondeat superior apply? A lawyer would most likely have to thoroughly research this matter since it is such an unusual case. According to Wayman v. Accor North America, Inc., the employer would not be liable for the defendant hitting the pedestrian. Therefore, research is important in determining which parties may be liable for injuries suffered by the plaintiff.