Client versions don’t always match up with evidence.  Sometimes it’s oversight, poor or selective memory, or just plain ignorance.  It happens.  Legal practitioners always keep this concern in the back of their mind when accepting a case.  Too bad there’s no way to “crystal ball” the case before you commence discovery, set depositions, or set trial.  But clients are not the only challenge in the practice of law.

Not only need the practitioner know the law but he/she also needs to know the underlying industry/subject matter as well.  Custom, the traditional manner of operation, usual and ordinary course of dealing and nature of the industry can play an influential role in case handling as well.  Take safety (OSHA/MSHA), for example.

Say a long-standing contractor client of your firm hires you to pursue one of his construction clients for breach of contract.  There are several millions of dollars involved.  The contractor tells you his client improperly ended the contract claiming contractor’s company as unsafe.  In the years you’ve represented this construction client you know him to have been in business for several decades. Has done quality work, and completed all his projects in a timely manner and on budget.  The client contractor is a good guy, is well thought of in his industry, and has no problem landing projects.  All seems good.

Crystal ball time.

You progress through the case and are a couple of months from the trial (discovery is closed at this point) and figure just to be sure you’ll have a safety wizard (safety expert witness) review the file for some “ammunition” for the trial.  After the safety wizard has reviewed the file and various forms of discovery he returns with the following questions. 1) Where is the safety manual?  2) Where are the safety training records?  3) Did you know the Mod Rate is much higher than the client told you? 4) Where is the deposition of your client’s safety person?   5) Why did the contractor’s employees not have the proper PPE as noted by the defendant numerous times?  6) Where are the client contractor’s periodic site inspection reports?  7) Why is the TRIR so high?  Wasn’t the contractor paying attention to this?  (You don’t know what a TRIR is.) 8) Where are the accident investigation reports?  Why is any of this important?  (The defense certainly knows these questions are important.) Trial is set for a couple of months from now!  Wish I knew this up front!!   Time for a new theory.  Talk about thinking on your feet!

There are no known “crystal balls” in case assessment but a qualified safety expert can help you with workplace safety-related (OSHA/MSHA, insurance industry) information that may impact your current case posture.     Put the odds in your favor (and that of your client too).