Essential Steps Before the Courtroom
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.