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The Importance of Due Diligence and Looking Under Every Rock

I believe in big picture explanations. Understanding the broad picture helps understand why the details are important.  It helps see where the puzzle pieces fit and why they are necessary. If a person does not understand why something is necessary, it is much easier to rebel against the directive. For instance, if you tell a child “because I said so” as the reason they should not do something, that does not create any incentive or understanding as to why they should not do the behavior.  If you explain to the child the why behind the reasoning – if you run out into the street, you might get hit by a car; if you don’t drink your milk, you won’t have strong bones – the child is more likely to understand why they should do the smaller act, rather than just because their parent told them to do it.

I recently gave a presentation to a group regarding what to expect in litigation.  It is difficult to express the importance of record keeping or rapid response or how to communicate regarding an accident in email form without opinion unless you explain the big picture – the methods savvy plaintiff attorneys use to formulate negligence arguments, the types of information they will seek, that information is power.  I explained to the group that we cannot control accidents.  But, it is our job to control the controllable and ensure every member of the team understands why their piece of the puzzle is important – details matter.

By the time a case gets to defense counsel, the facts are what they are, the players are locked in, and it is up to the attorneys to be creative and figure out a way to make the most of a bad situation.  To be a zealous advocate for the client and work with what is there.  This means either sizing up the facts and saying “buddy, this is bad.  This is needs settled.”  Or, “Not sure.  We need more information.”  Or, “No way.  This, we fight.”  Understanding how attorneys think in sizing up  a case is important because it allows the client to determine if counsel is considering all the relevant facts.  Are they viewing the broad picture?

The broad picture, in defending a case, means obtaining all the information available.  This can be done in a number of ways, and many of my practical articles have addressed topics related to fact gathering – recorded statementsrapid response techniquesdiscoverability, etc.  But, just as important as knowing what you are dealing with internally is knowing what you are dealing with across the table.

This means collecting as much data as possible on the opposing party.  What dirt is out there?  Court records, social media, Google searches, medical records, FOIA requests, bank records, property records, police reports, whatever records it takes to find out what you need to.  But it also means more creative thinking – obtaining DMV records, Carfax reports, various smartphone application information, and, as in the case of a recent 9th Circuit case, snapchat data.

Several years ago, I was part of a case where a couple of teenagers were racing and were utilizing the Snapchat speedometer function, also known as the “speed filter.”  That was some crucial evidence in the case and helped us assess comparative fault in that jurisdiction to get to the outcome we needed to reach.  The 9th Circuit case, Lemmon et al v. Snap, Inc., Case No. 2:19-cv-04504-MWF-KS (2021), details a case involving multiple fatalities resulting from a high-speed accident.  The parents of the deceased alleged that Snapchat “encouraged their sons to drive at dangerous speeds and caused the boys’ deaths through its negligent design of its smartphone application.”  On appeal, the Court considered if a separate cause of action against Snap, Inc., the maker of Snapchat, could go forward, or, as had been ruled by various other courts, the maker was immunized pursuant to the Communications Decency Act.  The 9th Circuit held that the claims focused on the design of the application itself, not what someone posted to Snapchat, and so the lawsuit could move forward.  For those really interested, the legal opinion can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf.  For those summarily interested, the NPR article can be found here: https://www.npr.org/2021/05/04/993579600/snapchat-can-be-sued-for-role-in-fatal-car-crash-court-rules.

This opinion is important for many reasons. Primarily, it expands the law with regard to causes of action for negligence and enhances tortfeasor availability for contribution or comparative fault, depending on the jurisdiction.  How can this benefit the savvy defense attorney? Well, if due diligence is pursued, if every rock is uncovered, and counsel is creative, not only is this potential evidence of wrong-doing on the part of the opposing party, but it is also an avenue for third party relief.  Consider an accident where the snap filter is being utilized (though not currently as in vogue as it once was) by the plaintiff in a case – could not Snap, Inc. now be a potential third-party defendant, depending on the facts of the loss?  If the broad picture were not considered and all the questions were not asked to figure out if this application was in use, this opportunity to defend would have been passed by.

Can the Snap, Inc. ruling be paralleled to other scenarios?  Does the design of other applications encourage distracted drivers in a manner that can be utilized as a strategy in a defense case?  Considering the broad picture, collecting data, and being well versed on the law can help assess these factors.  Understanding the why behind collecting so many records – the possibility of mitigation, impeachment, finding other parties – helps realize the potential benefit.  Let’s go unturn some rocks.

For more insight on what type of due diligence can be done on claimants and plaintiffs, please contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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