Pre-Litigation

Essential Steps Before the Courtroom


Signing Up the Case

Retainer Agreement

The retainer agreement constitutes our office’s acceptance of the lawsuit. Our office’s standard retainer agreement provides that the contingency attorney fee is 40% unless the case settles prior to the lawsuit being filed.

1.5.1 Agreement

Per the ethical rules, “Lawyers who are not in the same law firm shall not divide a fee for legal services unless: (1) the lawyers enter into a written agreement to divide the fee; (2) the client has consented in writing, either at the time the lawyers enter into the agreement to divide the fee or as soon thereafter as reasonably practicable, after a full written disclosure to the client of: (i) the fact that a division of fees will be made; (ii) the identity of the lawyers or law firms that are parties to the division; and (iii) the terms of the division; and (3) the total fee charged by all lawyers is not increased solely by reason of the agreement to divide fees.”

Attorney Fee-Splitting Agreement

The attorneys may also choose to memorialize their fee agreement in a separate writing. Any fee-splitting agreement with our office, including the 1.5.1 agreement, must state that the attorneys are entitled to keep their own statutory fees awarded by the court, if any, in addition to the contingency fee. The attorney fee split should state that the attorneys shall share costs in the same percentage as the contingency fee.

Initial Client Contact

Making the Initial Phone Call

It is important to establish a good working relationship with the client early on. Make sure that you give yourself space and time to make the initial client phone call. The client will understandably be bereaved, and many of our clients are unsophisticated. Talk slowly and offer your sympathies right away. Let the client know that you are committed to seeking justice for their decedent and family. Do not overwhelm them with information. Let the client cry if necessary and give the client space to speak. You can always have a follow up phone call later to get additional information.

Information to Give the Clients During the Initial Phone Call

  • Let the clients know that we will be sending over certain documents for their signature (see list below). Briefly explain what the documents are and ask how the client would like to receive correspondence.
  • Let the client know that you’re working under Dale’s supervision.
  • Let the client know that we filed or will file the claim, that the lawsuit will be the next document filed after the claim, and that it will realistically be several months before we have the police reports and other documents.
  • Let the client know that in the meantime, we will be collecting information from the clients and through investigation, and we appreciate their cooperation and patience.
  • Give the clients a list of documents (see list below) verbally and via written correspondence that the clients can gather, such as family photographs and the death certificate.

Information to Obtain from the Clients During the Initial Phone Call

  • Names, birth dates, and contact information for all potential heirs.
  • Info re: who will serve as the guardian ad litem, whether an estate has been opened, and whether there is a pending related criminal case.
  • A working phone number, physical address, and email address for the best contact person for the clients.
  • Basic information about the decedent or victim, such as whether there are any medical bills and where the victim/decedent was living and working at the time of the incident, whether the victim/decedent had a criminal history, drug history, or mental health history.

Initial Investigation

Investigation Memo

If the facts of the incident lend themselves to investigation, draft a memorandum to one of our investigators (run this by Dave first) with a list of suggested questions that the investigator can ask percipient witnesses. The memo should also direct the investigator to take photographs of the scene of the incident and should point the investigator in the right direction for requesting surveillance footage from businesses near the incident. Remind the investigator that a witness statement with no contact information for that witness is useless.

Public Records Request and Freedom of Information Act

Pursuant to California Gov. Code Sections 6250-6268, “[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Draft and send this request to the relevant department or agency.

Remember to request that your client or the decedent’s next of kin authorize a declaration that will be submitted in conjunction with the request.

Request for Autopsy Materials

The autopsy report will likely be held back until the investigation into the incident has been concluded, but go ahead and call the coroner’s office. Ask for a coroner case number regarding the decedent and ask for instruction on requesting the report and autopsy photographs. Often times the defense won’t produce the autopsy photographs and X-rays, so even if you can’t get the materials immediately, you’ll likely need to request them directly from the coroner’s office at some point.

Preservation of Evidence Letters

Send a letter to the coroner’s office requesting that the decedent’s sample be preserved. This will be important for the paternity testing. You may also want to send out preservation of evidence letters to the relevant departments and agencies and any businesses that may have surveillance footage of the incident.

News Articles

Search for media such as You Tube videos and news articles to discovery information regarding the case. Try to save the You Tube video if possible.

District Attorney’s Report

The D.A.’s review lasts anywhere from six months to three years. Keep checking the D.A.’s webpage for updates. This is a good avenue for discovering the names of the involved officers.

Documents for the Clients to Sign

  1. 377 Agreement
  2. Conflict of Interest Waivers
  3. GAL Application, Consent of Nominee and Proposed Order
    1. 📌 In state court, use the appropriate form rather than drafting your own application.
  4. HIPAA Authorizations
    1. 📌 Get authorizations for release of the decedent’s medical and mental health records, as well as authorizations for release of the same from the clients. We will want to start requesting the medical records informally.
  5. Authorization to Release the Decedent’s DNA Sample
  6. Declaration of Next of Kin for Public Records Request and Release of Autopsy Materials

Collecting Client Documents

  1. Death Certificate
  2. Birth Certificates
  3. Family Photographs
  4. Funeral and Burial Expenses
  5. Memorial Booklets and Videos
  6. Earnings Documentation
  7. Medical Records
  8. Medical Bills
  9. Counselling records
  10. Mental health records
  11. School records

Paternity Testing

Contact Laboratory Corporation to start the process. If we don’t have access to the decedent’s sample, then we can recruit a group of family members related to the decedent and the minor child in question to give samples that will be tested against one another.

Drafting the Claim

The first step in the process of filing a personal injury suit against a public entity or a public employee acting within the course and scope of his or her employment is to file a written tort claim. The statutes governing the claim presentation procedures of the California Tort Claims Act are located at California Government Code 900 et seq.

  • Cal. Gov. Code Section 905 lists the exceptions to the claim filing requirement.
  • Cal. Gov. Code Section 910 lists the required contents of the claim.
  • Cal. Gov. Code Section 911.2 instructs that the claim must be filed within six months of the date of injury.
  • Cal. Gov. Code Section 911.4 instructs that an application to present a late claim must be presented within one year after accrual of the cause of action. This period may be tolled for a mentally incapacitated claimant who does not have a guardian or conservator, but it is not tolled for a minor
  • Cal. Gov. Code Section 911.6 instructs that a claimant who was a minor during the entire claim period may file a late claim, and the public entity must accept the claim as timely.
  • Cal. Gov. Code Section 945.6 instructs that the lawsuit must be filed within 6 months of the date of rejection of the claim. However, if the public entity does not reject the claim in writing, then the lawsuit must be filed within two years from the date of accrual of the cause of action.
  • Gov. Code Section 946.6 instructs that if the public entity does not accept a late claim as timely, then the claimant has six months to file a petition with the superior court of the relevant county appealing the public entity’s denial of the late claim. If the petition is granted, then claimant has thirty days to file a complaint if he or she has not done so already.