Article

Witnesses make the case

There is a well-known theory in sports: No matter what is presented on paper, the outcome is determined on the playing field.

This is also true in lawsuits. No matter what is presented on paper, what happens during the discovery and trial is most important. The lawyers drive the outcome in large part – but so do fact and expert witnesses for the parties.

Fact witnesses whom companies produce for their cases fall into several different categories. This can include the delivery person involved in the accident site, service personnel for the site, office personnel and management. The list can expand depending on the facts of the case. In each instance, the value of witness testimony can directly impact the view of the case on liability.

An employee who is no longer with the company is often an important witness. In my experience, this employee is ignored early in an accident and is contacted by soon-to-be opposing counsel to give a statement that could damage the defense. This statement is often developed in a way that the former employee is unwittingly hurting the defense for his former employer. Sometimes the employee has a grudge against his former employer and is motivated to give unfavorable testimony.

Typically, only witnesses in management positions may give testimony that binds a company as to policies or practices. However, it is a difficult rule to enforce in actual practice. Knowing this, there is a significant effort to get former employees to get tacit admissions that may not accurately reflect company policies but will be damaging to the company in the defense of a lawsuit.

When an accident does occur, it is important to identify former employees of the company and the reasons they have left when meeting with your team of lawyers, consultants, investigators and claims professionals early in the process. It is important to reach out to these people and see if they will keep the company and its professional response team in the loop if the side bringing a lawsuit against the company contacts them.

Counsel for the company would seek to be involved in or prevent those interviews from going forward, with permission of the former employee. This would ensure that the former employees have the opportunity for representation of counsel when giving statements and the chance to review those statements.

The employee who is directly involved in the delivery or service work will be a key witness. His or her entire personnel file will be examined. Training records will be reviewed. The witness likely will be tested on CETP or like training to see if he really knows his stuff. Supervisors will be tested on the same training that the actual service person is asked about that may or may not impact the case.
There will be efforts to get management to suggest the employee was negligent, violated industry or company policy or practice. This is often a difficult area to work through in a case. Often, management is not prepared to speak on an employee’s action in a case because they don’t have sufficient facts.
Knowing how industry standards apply to a given set of facts is an important piece of the puzzle that your lawyer can bring to the table. This will help you and your company in determining how best to face these challenges in lawsuits.

Industry-related litigation involving explosions and fires requires unique knowledge from your defense team of lawyers, consultants and insurance professionals. You will be able to speak the same language relevant to the industry without the need to start at Propane 101.

This knowledge bank is helpful in making timely and wise decisions on moving forward with the claims and lawsuits you face.