Frequently Asked Questions Posed By Risk Managers
Q. How extensive should my records be with respect to work performed?
A. Records should be extensive, for both routine and unusual tasks. For example, in defending against premises liability cases, it is extremely helpful when a record has been maintained concerning routine mopping and cleaning, as well as the placement of weather mats or the performance of snow removal, salting, or sanding in inclement weather. It is most useful if such records indicate the date and time these tasks were performed, the identity of the personnel who performed the tasks, and the materials used. Similarly, in product liability matters, a complete record of research, development, and testing, can serve as the basis for a strong defense of the product before lay jurors.
Q. What information should be included within an incident report?
A. An incident or accident report should set forth the exact location, date, and time of an accident or other incident, as well as the identities of all parties involved or witnesses to the incident. If possible, a detailed recitation should be made of any statement taken from an injured party and a supervisor's description of the accident scene upon his/her arrival. Statements from eyewitnesses and all employees present should be maintained on separate forms.
Q. What information should be excluded from an incident report?
A. Statements of any remedial measures taken following an incident or accident should not be contained within the incident report. For example, if shortly after an accident, a weather mat is placed or taped down, an icy area is salted or sanded, or an employee is reprimanded, such information should be indicated on a separate document. In this way, defense counsel preserves the ability to subsequently argue to the Court that information concerning remedial measures should not be presented to the jury.
Q. Should schedules be maintained of work to be performed by employees?
A. Generally, it is unwise to maintain a written schedule of work expected to be performed. Invariably, employees do not meet the dictates of the schedule, thereby giving a plaintiff's attorney ammunition to allege that there has been a failure on an employee's part to comport with the company's own standards. The only legal standard to which company employees should be held is that of reasonableness. A schedule often serves to provide the plaintiff with a higher standard of care to attempt to impose on company employees than the legal standard of reasonableness.
Q. When should I notify my attorney of an incident?
A. Your attorney should become involved immediately after you are notified of an incident. Counsel can oversee the preservation of important records, such as maintenance logs and accident reports, and can supervise the preparation of additional evidence such as photographs. Involving your attorney in the process immediately following an accident will give greater force to the argument that certain documents should be exempt from disclosure because they were prepared for purposes of litigation.
Q. What information or materials should I give to my attorney?
A. Everything! Even if you are aware of information or materials that you believe may be detrimental to the defense of a lawsuit, this information must be brought to the attention of your attorney. Attorney-client discussions generally are privileged and exempt from discovery. Do not allow your attorney to get blindsided by your belief that what he does not know cannot hurt you. In fact, what your attorney does not know could hurt you significantly!
Q. How do I select the right defense attorneys to represent my company?
A. Although many states, including the State of New York, do not recognize areas of specialty for attorneys, certain attorneys concentrate on a few areas of legal practice. In the area of personal injury claims, it stands to reason that it is beneficial to hire counsel that has extensive experience and expertise litigating such cases at the trial and appellate levels. Research can be conducted through various publications and associations that rate or report on the success of personal injury defense attorneys. For example, Martindale-Hubbell provides ratings for attorneys and other information concerning areas of specialty.
Q. Why should I choose JEFFREY SAMEL & PARTNERS to represent my company in personal injury litigation?
A. For nearly thirty years, our attorneys have garnered unparalleled experience and expertise in the successful defense of personal injury cases. Our practice concentrates on defending high-profile companies that may have difficulty connecting with jurors. It is our ability to attain the respect of the judges and even our adversaries, as well as the trust of jurors, that has resulted in our unparalleled success as defense attorneys.
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