Video Footage Advice for Plaintiff’s Attorneys:
- Send notice to preserve ASAP.
- Use PI to take pictures of other sister stores to demonstrate patterns of safety violations that you might be able to capture. This counters the “one-off” defense.
- Don’t take “there is no video footage” as a response from the employer. Review the monitors and what they see. If the video can see the key area where the alleged incident occurred – there is a video somewhere.
- Don’t be afraid to set multiple depositions. They all don’t have to be 6 hours long. They can be 15 minutes. For example – line up 10 store employees and perform their deposition back-to-back. Consider doing this early in your case because the defense won’t know where the plaintiff's attorney is going and the witnesses won’t have as much defense preparation. One or two “yes, I saw that type of accident coming” is all you need.
- The key depositions any plaintiff attorney should set and conduct. 1) begin at the incident and work outward. A wet floor slip & fall example: the direct employee who caused the wet floor, then their supervisor who supervised and trained the employee, and finally a corporate safety employee.
- There was a rule that was broken or no rule existed and this evidence is crucial to a premises liability case.
Cases Where the Owner Had a Heightened Level of Duty:
- Senior living community. The residents were looking for a higher level of safety like handrails given the residents are at higher risk for falls. During research of the various facilities owned by the corporation, the plaintiff's attorneys noted the following: a) high-end communities had all the possible safety devices while communities for middle-income residents had fewer safety devices integrated into their buildings. “They had directed their resources toward their most profitable communities according to the plaintiff attorneys. This allowed the plaintiff's attorneys to compare and contrast the various facilities and support their case.
- Tip: secure the marketing material of the senior community that touts their focus on safety and use it to compare it to the actual level of safety.
- The Focus group confirmed this was an excellent lawsuit target for the plaintiff’s attorneys.
Cases Plaintiff’s Attorneys Should Avoid:
- Attorneys will front the money for expert witnesses and choosing the right case is crucial.
- Does the case have enough of the unexpected hazard element or was the hazard something that might be more common is the minds of the jury? Example: water on a floor from a customer (harder to convince a jury that management should have known) versus water leaking from an AC unit that had repair requests ignored by the store management.
- Use them to assess the potential jury response to a plaintiff’s injury claim and case.
- Include individuals who may not be pro-plaintiff to ensure you are getting a comprehensive assessment of the case.
- Do not let the mock jury know they are evaluating your case; they may feel less inclined to be honest if they are responding to your case in front of you.
