HOW I OBTAINED JUSTICE FOR MY CLIENT
Steps for Evaluating a Difficult Intake
BY MIKE RAFIYou are in the Lenox Mall food court. A young man slowly walks to you while holding his stomach. You immediately know he is the person you are there to meet. After brief introductions, you both sit down, and he says this:
“I was in a car. My friend, who I was mentoring, was driving. I fell asleep. When I woke up, we were at a gas station. My friend had his door open and was talking to someone outside his door. I don’t know who the other guy was, and I didn’t hear what they were saying. All of a sudden, gunshots started coming into the car. My friend pulled out a gun and started firing back as he floored it out of there. I realized I had been shot. I begged him to stop shooting. He drove to the train tracks, but there was a train going by, so he got out of the car and ran. I got out and ran as best I could the other way, called 911, and sat down thinking I was going to die. I have talked to four or five other lawyers, but they all said no. Will you help me?”
Well, would you? Would you take the case?
I have asked myself more than a dozen times whether I would take this case…again. The fact that I know the outcome – a $1.34 million post-apportionment verdict – makes it almost impossible for me to objectively answer.
Negligent security cases may be the toughest cases to do an intake for. The basic considerations (was the crime foreseeable and security reasonable?) are extremely difficult to prove even after discovery – let alone to evaluate at intake. There is almost always an apportionment issue to consider, since the defense will try to blame the criminal.
Plus, these intakes require a tremendous amount of legwork before you can even catch a drift of whether you have a good case. Unlike an automotive case, there is no police report with a citation, contributing factors and diagram of Vehicle 1 rear-ending Vehicle 2; unlike a fall case, there are no pictures of busted sidewalk and no codes or ordinances to consult; and unlike a products case, there is no commercial product or warning to inspect for a defect. As you will see, these are not quick intakes where you can give the potential client or referring lawyer a final answer right away.
So, what did I do? I gave the classic lawyer answer: it depends. And in this case, it depended on a whole lot.
Regardless of the case, my intake process follows a similar investigative path because the end goal is the same: to make the most informed decision I can about whether I want the case. There is no perfect process for every intake, but there are repeatable strategies you can use to gather as much accurate information as possible before deciding to accept or reject a case.
QUESTION THE POTENTIAL CLIENT
Before you got married, what did you do? You likely went on dates and got to know each other. Your initial questioning of the client is the “first date” in your personal injury relationship. You are trying to determine four things:
• What does the client know?
• Do I believe the client?
• Do I like the client?
• Can I make the client happy?
In this case, the client did not know about any prior crimes at the gas station or whether it had any security measures. As is the situation with most negligent security cases, the client only knew his perspective from the day he was shot and what he claimed happened was frankly unbelievable on its face.
While the story seemed so far-fetched, the potential client seemed so credible. There are two tests I have learned over the years to tell if a client (or anyone for that matter) is telling the truth. First, ask the same question at different times and in different ways to hear if the answer changes. Second, ask to hear the story backwards. Reason being, it is difficult to keep lies straight without the benefit of chronological order.
These tests are especially useful when you have a smart client who has been turned down by other lawyers. My worry is that, out of desperation, potential clients may change or leave out bad facts because they saw other lawyers react to hearing them and were inevitably turned down. Despite my thorough questioning, the client passed both of my tests.
In no small part because I thought he was telling the truth, I found I really liked the client. We had a good connection from the start. He needed help, and I wanted to help him.
I also needed to know if I could make him happy. Have you ever had a client who wanted a (collectible) billion dollars? Or a client who wanted to talk for two hours every day? How about a client who wanted you to settle the case within three weeks? Even if I believe and want to help a client, I will not do so if I cannot make the client happy.
Here, I asked the client what his expectations were and, after being turned down by a handful of other lawyers, his answer was that he just wanted someone to thoroughly investigate his case. I made sure to explain that my investigation could result in another no, and he understood. With that, all my boxes were checked, so I got to work.
MAKE A PLAN
The first thing I needed to do was…figure out what I needed to do.
A plan is the first step in almost every intake. If your plan is to do the same thing you did for every other case you had in the past, your plan will not work. The plan must be flexible and take into account the specific facts you are presented. It is too easy – and, more importantly, rather useless – to have your plan be to “investigate liability and damages.” That is like saying your plan to make Thanksgiving dinner is to get food from the grocery store and cook it. Instead, you need something more like a shopping list that says exactly what to buy and where to find it in the store, along with a step-by-step recipe (which is truly what I would need to have any hope to cook Thanksgiving dinner).
Here was my initial plan:
• Send preservation of evidence letters
• Request and review police report of the client’s shooting
• Request and review crime grid (list of past crimes) for the gas station
• Request and review past 911 calls and 911 calls for the client’s shooting
• Speak with responding police officers about the client’s shooting
• Research client
• Research client’s friend/mentee
• Research client’s shooting
• Research gas station for prior crime
• Speak with beat officers about gas station
• Go to gas station
EXECUTE THE PLAN
There are many sayings and quotes about how plans are only effective if you follow through – I am sure you know many of them, so I will just tell you how I went about executing my plan.
The first task was to send preservation of evidence letters to the gas station operator and landowner. Even if I did not move forward with the case, I wanted to make sure the future defendants saved all available evidence. Preservation letters are a way to add value to a case and protect clients’ interests, regardless of whether you move forward with their representation.
The top of my list (in green) has things that I must request and then wait for. I want to get these requests out the door immediately, so I can cut down on wait time.
Here, I needed to request reports from the police and 911 calls from county. So, I sent these requests and moved on to other tasks as I waited responses.
Next (in red) are items that could be immediate deal-breakers depending on their outcome. The idea here is to find any big things that would make me want to not take the case or confirm they will not become an issue. If they do exist, I want to know about them as soon as possible, so I do not spend unnecessary time, energy and money investigating. For example, if the police officer had evidence to show the client was not actually an innocent victim, that would be an enormous red light. Or, I may decide not to represent the client if I learn he has an extensive criminal record or offensive social media accounts.
In this case, the police officer (who would later testify at trial) was extremely helpful and candid. He told me he did not believe the client’s story at first, but after investigating, he concluded the client’s story was 100 percent true and that he was a completely innocent victim. He mentioned security video of the shooting, which gave me a jolt of excitement (I had included camera footage in my initial preservation of evidence letters, otherwise I would have needed to supplement those letters). The officer also told me he emailed with the client but could not give me the emails because it was an open investigation.
I did not think I could do anything to get the security video without filing suit, but the emails interested me. I added “Get client-police emails” to my plan. I asked the client to send them to me, and he did. The emails confirmed the client was helpful to police, and more importantly, that the story he had told police months earlier was the exact same story he told me.
Once I had confirmation from another source, I wanted to find information that may validate other parts of the client’s story. For example, the client told me the driver of the car he was in – the one who pulled out a gun and started shooting back – was his friend and mentee. That is not something you hear every day. I asked the client to show me things that supported this relationship. He gave me a Google Chat where the mentee asked him about orientation at a new job. He also gave me names and contact information for people who knew he was mentoring the driver, including the driver’s mom, all of which confirmed the client’s story.
After the case survived each obvious potential deal-breaker, it was time to really dig in. I scoured the internet for news stories about the gas station and found out about another shooting just a few days before. There was no victim name, so I immediately requested that police report (again, immediately make requests to third parties to cut down on wait time). Once I got that police report, I tried to find that victim so I could hear his story personally.
In the year and a half between investigation and trial (it was a quick case by most standards), I spent tens of hours trying to find the victim from the earlier shooting. I spoke to that victim’s mom, sister and cousin and am pretty sure I did connect with the victim at least twice, only to be hung up on. I did this because the potential advantages of the earlier victim’s testimony were worth spending the resources, even given how unlikely it became that there would be a payoff to the work put in.
Remember, unlike defense lawyers who equally bill each hour of work, all our hours are not equal. An insurance company would probably not have paid a bill for the time I spent trying to track down this witness, especially since it was not fruitful in the end. But on our side of the “v,” where we only get paid if we win the case, investments in finding potentially key evidence is what will skyrocket case value. In fact, the strategy did pay off in this case when we located an important former employee, obtained an affidavit from him and called him at trial, where he gave damning testimony.
As that was going on, I wanted to speak with police officers who work the beat where the gas station was located. Calls and emails may work, but I have found the best way to actually get ahold of police officers is to show up at the police station at shift change. Since many crimes happen at night, that means going to shift changes for the night shift, which depending on the police department, could be very late at night or early in the morning. I went to four shift changes over the course of three days and spoke with many officers who patrolled the gas station and heard the same thing: the gas station was a hot bed for illegal activity – especially drugs.
Among the five or six officers I spoke with, one was the officer who investigated the shooting from a few days earlier. He told me details about that shooting that I thought would strongly help me prove the client’s shooting was foreseeable to the gas station.
I also went to the gas station. I looked around, took photos (that I would eventually use at trial), and tried to identify any security features. I saw cameras, lots of people loitering directly next to and under “no loitering” signs and that the employees inside the store were surrounded by what was surely bullet-proof glass.
After questioning the client, planning and executing your plan comes the hardest part: thinking. I ran around for the better part of a week learning everything I could about the client, the shooting and the gas station. At some point, you must regroup, consider what you learned and what you did not and think.
A week into the investigation, I had done a lot of work just to find out whether there was a case. There were some facts that I knew but many more that I did not know. I did not have the crime grid or 911 calls, and I knew once I got them, I would need to request individual police reports to identify and locate prior victims. More, I still had not tracked down the prior shooting victim.
However, I at least knew there was a prior shooting a few days before, that I might be able to reach that victim with time, there was video of the client’s shooting, the client was an innocent victim and the client’s injuries were significant. I was fairly confident there was a case, but without putting in the legwork and going through the investigative process, I never would have known that.
So, would I take this case again? I hope so. But I also hope that after reading this story, if you have a look at a case like this – one that has great potential but is clouded by a difficult intake – that you look more closely at it, question the client more fully, make and follow a detailed plan and do not let someone in need of help with a case like this slip by. ●
Meeting Potential Clients
This is the “first date” in your personal injury relationship. You are trying to determine four things:
What does the client know?
Do I believe the client?
Do I like the client?
Can I make the client happy?
ABOUT THE AUTHOR
Mike Rafi is the founding attorney of Rafi Law in Atlanta. His practice focuses on wrongful death, motor vehicle, negligent security, and serious bodily injury. Mike is active with GTLA, the DeKalb and Atlanta Bar Associations, as well as the State Bar of Georgia. He can be reached at firstname.lastname@example.org.