Playing Fair

When we are little, we are taught to play nice, play fair.  So why did that adage disappear when I became a lawyer?  It is said that the practice of law is about getting “justice” for our client.  But at what costs?  For the lawyer it’s too often about winning.  We want to do right for the client in obtaining monetary damages, for that is all we can obtain when his/her loved one is taken from this earth because of needless malpractice by a physician, a greedy pharmaceutical company puts profits before the health of the public or a bar that improperly serves a minor or visibly intoxicated individual who then leaves and hurts or kills another individual.  But at what “cost” are these cases being defended, and are the defendants playing “nice” or “fair” simply just to win?

Today that defense attorneys want to see blogs, Facebook pages, or other social media to “see” what our clients are doing AFTER an accident or claim is brought.  Is the client really hurt?  Is the client “really” not able “to live their life” as they had before the accident?  These are legitimate questions that can and should be asked of our clients.  And ALL clients who seek “justice” and monetary compensation should be aware that Big Brother is out there watching and looking for ways to impeach you on your claim.  This is fair game.  No doubt about it.

So be cautious because if a “new friend” pops up after a claim is filed and you want to have so many friends because it makes you look good, perhaps you should realize that this “new friend” may just be the person you are suing.  That person now has access to your profiles and now they have unlocked the key to your life – your pictures that may later haunt you in your case when you claim you can no longer do something and next thing you are staring at a picture of you bungee jumping or doing the limbo at a holiday party after you just said that you have problems bending.

But the same caution needs to be applied and used against defendants when collecting evidence.  That “smoking gun” internal email that is sent by a disgruntled employee to an executive saying that a drug has adverse side effects:  can a company just purge that email?  Of course not.  Can a hospital employee go back to patient’s chart and make “new entries”?  Of course not.  Can an inspection company “conveniently” lose records for two out of twelve months…the two months being the month before the client’s fall and the one of her fall, raising the big question:  was that defect of the property really there?  Of course not.

I am handling a case against a local bar where the majority of its patrons are from a local university.  Mathematically, three-fourths (3/4) of those students would be under the age of 21.  As it turns out, the bar serves a student who is under 21 and, as the story turns out, the underage student gets into a fight with another patron and serious injuries result.  The bar has a camera.  I am chomping at the bit because I want to see this video and see how this kid could’ve been served.  Did the bar card?  After months and months of requests, I find out that I’m not alone asking for the video.  The police and the District Attorney’s office are trying to get the video.  This is great.  I have law enforcement working with me.  Hold on:  the video is available.  Let’s go watch.  WHAT??  The video starts with the underage kid where?  Doing what?  They edited the video?  The bar produces a video that starts with the underage kid at the bar with the glass of beer already in his hand.  Now the bar claims:  “we didn’t serve him.  We don’t know how the kid got the beer.”  Can this really be happening?  Sound “fair.”  Of course not.  But it is reality…just like your client staring at their picture on Facebook.

This is the “game” that we have to engage on behalf of our clients.  We have to have foresight to ask for the records, the videotapes, the reports, the emails and much more BEFORE the litigation begins.  I’d like to say that we, as lawyers, can “play nice…fair,” but we are competing against the insurance Companies, the pharmaceutical companies, the hospitals and, yes, even the small local bars.  As much as we strive to win for our client, it’s just as much about winning to them.  So be careful what you say and do.  Where you put your “Face.”  In the meantime, we will continue to dig for those emails, medical records and tapes to find what really happened BEFORE they may be “lost” or “edited.”

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