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Consider the three disturbing scenarios that follow;
You've just completed the initial phases of your client's big- money personal injury car-accident case. You've verified the insurance from the other driver, taken care of the client's property damage, sent the client to a doctor for treatment, and reviewed the police report carefully.
Late one Friday, you have a very brief conversation with the only witness to the crash who tells you he is just going out the door and asks if he can get back to you on Monday. You dutifully leave him your office number and, when Mon day and Tuesday come and go, you call him back. A metallic voice answers the phone with this chilling phrase: "The number you have reached is no longer in service. Please hang up and try your call again."
Your star witness, the one person who can verify your client's side of the story, has moved.
Your partnership dissolution case has dragged on for months and months. Both partners hate each other and have disrupted depositions, ruined settlement meetings, and generally made everyone's life miserable. After months of waiting for his partner to cooperate, the client says he's tired of negotiating and wants the courts to settle this business ''divorce." The defendant, a 20-year resident of the community, fails to show up at his office on the day your process server comes with the summons and complaint. Not only is he not there, but his furniture, file cabinets, and telephones are also missing.
Your firm has really worked hard on this probate case-long hours, bad takeout food, no rest for weeks and weeks. You've finally come to the end of a long road that started nearly two years ago. The estate money coming to the client represents a tidy sum. Your firm's percentage of the total check will make the partners happy for quite a spell.
The client is kind of a maverick, changing jobs and cities often enough to have a standing account with a moving and storage firm. You just spoke with her a few months ago to give her an update on the case. With the check in hand you send off a letter saying, "We've settled the case. Please call us immediately to get your check."
After a week, your letter comes back marked, "Return to Sender-No Forwarding Address." The client's check sits in your firm's trust account, gathering dust.
So what two things do these minor tragedies have in common? A strong sense of disappointment and a renewed feeling that the "real" work in the case has just begun. We all like to feel good about our work. These new problems locating witnesses, defendants, and clients can only add to your frustration level. Just when you think the case has turned the comer toward settlement or you've even received the money from the other side, you can't enjoy any sense of accomplishment or closure.
What do you do now that your case is in apparent shambles? How do you cope with missing participants?
When all appears bleak, keep the following rules in mind. Plan for these surprises before they happen: While no one expects you to have a crystal ball attached to your desk, you may be able to anticipate and ward off some problems with your witnesses,
defendants, and clients.
Don't be shy about asking your witnesses if they plan to move anytime soon or if they will change jobs, addresses, or phone numbers in the near future. When you send them a "sign under penalty of perjury" statement, have them include their driver's licenses and Social Security numbers with their signatures.
Keep track of any available information that might help you later if they disappear: home and work addresses; home and work phone numbers; wives', husbands', in-laws', or children’s' names; license plates; post office box numbers; rental property addresses; probation or parole officers' or military base supervisors' names; bank accounts or finance company addresses; etc.
Try to make some assumptions about where these people might be in three months, six months, or a year from now. Are your witnesses, defendants, or clients in jail right now? In the military? In a community college or state university study program?
Enrolled in a trade school or technical school? Married with a new last name? Divorced and using a previous name?
Find out where they work and make a note of their work supervisors' names and phone numbers if you can. This information may help you if these people quit, get transferred to another division in the same company, or change jobs but stay in the same career field. Learn to read the clues of movement: impending address, job, or marital status changes. If you're really concerned a witness, defendant, or client will skip out on you, make a note on your calendar to review the file at appropriate intervals, checking status and verifying any new information.
Don’t worry more than necessary about these delays: Accept the fact that there are some people who will not cooperate under any circumstances. Some fail to cooperate no matter how nice you are; others are negative and uncooperative even if you threaten them with civil, legal, or financial punishments. Remember that we live in a mobile, ever-changing society. People move
from job to job and to different cities, states, or even countries much more readily than they did 20 years ago.
We also live in a highly transient country. A surprisingly large portion of our population has no real community roots and seems to drift from town to town, working and living just day to day. Many of these same people who bounce around like this also need more legal services-for accidents, insurance claims, arrests, etc.-than more structured, longtime community residents.
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