BY SHARON ZINNSMany lawyer have a system for tracking a client’s progress during a routine injury, even a serious one: make sure she’s treating until recovered, track medical records and bills, send a demand package, file suit. But what do you do when you client is gravely or fatally ill or injured. There is no time or necessity for the standard case work up method. Extreme action is required. In 13 years of representing individuals dying from mesothelioma, an asbestos-related disease, I have developed some techniques for making the most of your client’s situation before they pass away.
When an individual suffering from mesothelioma calls me, I am typically sitting at their kitchen table or their hospital bedside within 48 hours. There is no better way to assess your client’s situation than in person. If you learn of a potential client who appears to be fatally ill or injured, do not hesitate to go see them immediately. You should go to this first meeting prepared to do a true investigative interview with your client and any family members present. Depending on the current state of your client’s illness or injury, this meeting may be your only opportunity to get a detailed description of the facts and uncover the names of any witnesses who can testify on your client’s behalf.
Document Pain and Suffering
If your client is not expected to live long enough to testify, consider creating a “Day in the Life Video” to document the pain and suffering your client undergoes in his final months or days. There are videography companies in Georgia who are expert at assisting with these types of projects. Consider videotaping the removal and re-dressing of wounds, the administration of pain medications, any assistance with basic daily functions like eating, dressing, washing, or using the bathroom, and expressions of physical and emotional pain and suffering. If a video is not an option, consider asking your client’s family to photograph these same items. In the past, I provided clients with a disposable camera for this purpose. Now, most families have at least one smart phone with a camera that they can use. Although doing these videos or photographs while someone is seriously ill or injured may seem intrusive, the old adage “a picture is worth a thousand words” often holds true in the courtroom.
Get Your Case in Suit
Once you have a good faith basis to proceed, get your case on file immediately. Depending on how quickly your particular client’s illness or injury is expected to progress, you may be able to get him deposed and/or get his case to trial before he passes away. If you know which lawyers or law firm is likely to represent the defendants, reach out to them with a courtesy copy of the Complaint.
Get Your Client Deposed Right Away
Once the anticipated defense lawyers have a copy of the Complaint, they may be willing to arrange a quick deposition of your client because of her exigent situation. Consider providing a full set of medical records and basic discovery before you’d otherwise be required to do so. Being helpful and upfront with the defendants often yields more cooperation.
If they are not willing to complete your client’s deposition quickly as a courtesy to you and your client, seek relief from the Court to expedite the deposition as soon as the parties are served. In your motion for relief, it is best to attach some evidence of your client’s condition so the judge understands the exigency. In the case of mesothelioma victims, I often get a letter from my client’s treating doctor explaining their prognosis. Since they are often only expected to live for a few more months, many judges will allow a very quick deposition.
Also consider whether the deposition can take place in a non-traditional setting. I have deposed clients in their hospital bed, with them lying on their couch at home, or sitting at their kitchen table. In one memorable deposition, my client was deposed on his couch at home, which was a small trailer. I sat next to him on the floor so he could hear me. All defense lawyers had to go outside into the yard during every break. In another, a client was deposed in his favorite living room chair, and everyone went outside to the company of many dogs and chickens during breaks. That particular client’s home was in a remote location, so I had lunch brought in for all lawyers at my expense to make sure the deposition could be completed timely. When trying to get a gravely ill or injured client’s deposition done, creativity and flexibility is key.
Always videotape your client’s deposition, both the defendant’s discovery deposition and any trial preservation deposition you take. This is a significant added expense but important. O.C.G.A. §9-11-32(a)(3) permits a deposition to be used if your client is deceased or infirm. If it is a real possibility that your client will not be alive at the time of trial or will be too incapacitated to attend and testify, a videotape of their testimony is much more powerful than reading it into the record. No jury will listen to a read-in with any interest for hours at a time. With a video, your jury can see and hear your client, even if she’s not in the courtroom.
Seek An Expedited Trial Date
If your client has the possibility of living to see a trial date, move the Court to set an expedited trial date as soon as your case is at issue. Some states have a specific rule stating the amount of time in which a Court must schedule a trial date for an exigent, infirm, or elderly plaintiff. See e.g. California Code of Civil Procedure §36 (requiring trial be set within 120 days of the granting of a motion for preference). Although Georgia does not have such a statute, judges are still empowered to make decisions about the timeliness of a trial. For example, Uniform Superior Court Rule 8.1 states, “In scheduling actions for trial the assigned judge shall give consideration to the nature of the action, its complexity and the reasonable time requirements of the action for trial. It is the intendment of these rules that no matter be allowed to languish, and the assigned judge is responsible for the orderly movement and disposition of all matters.” Further, some courts have local rules for seeking an expedited trial or hearing. In almost all cases, the standard to meet is “good cause shown.” Therefore, it is again helpful to attach to your motion evidence of your client’s prognosis. You should be prepared with a proposed scheduling order that meets your proposed trial date to show the judge how you and the defendants can expeditiously and without prejudice to any party conduct fact and expert discovery within the time you seek. Most judges will balance the right of your client to see their trial with the rights of the defendants to full and fair discovery.
Litigation is always intensive and deadline driven. It can be even more so when you represent someone who is dying. Being prepared to move quickly as soon as you are retained can help you move your case forward to trial. You may only be able to handle a small volume of cases when you represent dying clients as your expedited trial settings can make discovery short and intense. The reward for your diligence is seeing a client make it to trial and have their day in court before they die. ●
About the Author
Sharon Zinns is Of Counsel to the Beasley Allen Law Firm. She has spent her career representing victims of mesothelioma and other diseases caused by asbestos exposure. Prior to joined Beasley Allen, Sharon practiced law with firms in California and New York, representing injured individuals throughout the country, recovering millions of dollars for her clients. She is an active member of the Georgia Association of Women Lawyers as well as GTLA, and is on the board of directors of her local synagogue.
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