Personal injury attorneys often describe the practice of law as the search for justice whereas defense attorneys describe the practice of law as the search for truth. In most cases, both sides
can agree the search for justice and the search for truth through prolonged and expensive litigation, does not serve the best interests of their clients. Certainly there are specific cases that
cannot be evaluated without discovering all of the facts and thoroughly investigating the evidence. However, given the overwhelming odds that cases will be resolved by agreement rather
than by a jury, as outlined below, it is advantageous for both sides to investigate their settlement options as early as possible, before engaging in prolonged and expensive litigation.
The Florida Office of the State Courts Administrator keeps track of statistics on the state court system. The most recent data indicates there were 263,808 civil case dispositions in Florida
during the 2014 to 2015 fiscal year. Of those civil case dispositions, only 696 were disposed by a jury. That means that less than 0.3% of all civil cases disposed throughout the state of Florida during the 2014 to 2015 fiscal year were decided by a jury. Broward County had the highest civil jury trial rates with 115 disposed by jury, Miami-Dade having the second highest with 112 disposed by jury, and Palm Beach having the third highest in the state with 81 disposed by jury. The most experienced trial attorneys know that in reality, the outcome of most civil cases will not be
obtained through a jury, but rather, through settlement, which can benefit both sides if conducted early in the litigation process. Superior knowledge through early investigation of the facts equals greater leverage, and negotiating with greater leverage results in a more favorable outcome.
Of course, not all cases can be resolved without the tactical benefits of formal discovery provided through litigation. However, it is in the best interest of the defense to use any and all pre-suit
investigative strategies to obtain superior knowledge, which in turn will allow for greater leverage and more favorable results.
Examinations Under Oath
Almost 135 years ago, the United States Supreme Court defined the purpose of an examination under oath in Clafin v. Commonwealth Insurance Company, 110 U.S. 81 (1884). The Supreme Court explained that an examination under oath enables an insurer to obtain both claim information and documents in the possession and control of the insured:
- for a proper and fair claim evaluation
- to help an insurance company determine its own policy obligations
- to enable the insurer to protect itself against fraudulent claims.
The purpose of an examination under oath is to obtain information to make accurate claims decisions. All too often claimants and their attorneys do not respond to written or oral requests for information. An examination under oath can serve as a more efficient method to formally interview the claimant with respect to particular aspects of their claim. It is also an opportunity for the claimant to explain, in their own words, the basis of their claim. This type of examination effectively conducted, is a practical and swift method of investigating the various critical components of a claim, but most importantly, it allows for the opportunity to obtain a visual impression of the claimant to determine if the claimant will serve as a favorable witness in front of the jury, whether the claimant is seemingly honest and truthful, and whether the claimant is visibly injured or malingering. An examination under oath provides the defense with an early analysis of the claim which in turn, will provide a more accurate and effective resolution plan. It also is an opportunity to obtain impeachment information to help resolve the claim early, or to later discredit the claimant, should
the claim enter litigation.
Recent discussions have arisen as to whether an examinationunder oath has any evidentiary value in a trial. In Royal Bahamian Ass’n, Inc v. QBE Ins. Corp., the Southern District Court of Florida, denied the policyholder’s motion in limine to preclude the examination under oath testimony of its corporate representative at trial, classifying the examination under oath testimony as a party admission under Federal Rules of Evidence 801(d)(2). No. 10-21511, 2010 WL 4123989 (S.D. Fla. Oct. 20, 2010). The court therefore ruled the examination under oath could be used as evidence and for impeachment purposes at trial.
Unfortunately, pre-suit examinations under oath are usually reserved for first-party cases and are not available in third-party civil cases. However, when retained pre-suit in third-party cases,
we have found success in requesting an informal meeting with the claimant and the claimant’s counsel prior to filing suit. When attending the informal meeting we have been able to accomplish many of the goals of an examination under oath, as we are able to investigate, informally, the basis for the claims, and can make a visual impression of the claimant’s credibility and alleged injuries.
Pre-Suit/Early Mediation
Lawyers and sophisticated clients are seeing and utilizing the advantages of pre-suit and early mediation. Given the overwhelming statistics indicating that lawsuits will be resolved by agreement rather than a jury, it is best for both sides to investigate their settlement options before engaging in prolonged litigation. The further litigation proceeds, the more the parties are invested