Preparing for Mediation with Use of Evidence
by H. Clifton Cobb
Preparing your case for mediation requires identifying all available evidence sources and obtaining that evidence by subpoena or appropriate non-party document production. Your preparedness for mediation affects your credibility as an attorney when presenting your case at mediation and can affect the settlement ultimately obtained. Sharing of evidence with opposing attorney is crucial to maximize the effectiveness of the evidence. Mediation requires no surprises as each side must have the opportunity to review and evaluate the case evidence prior to mediation. Your mediator will also want to discuss the impact of the evidence in assisting each side with the goal of reaching a settlement agreement. In this article we will identify certain evidence that is used and some that should be considered.
Evidence is used to prove or disprove a fact and to address issues for both Plaintiff and Defendant in a litigated case. More importantly, the type and quality of the evidence is decided upon by each party as part of their respective strategies to use at mediation. It is most effectively used during the opening statements at mediation. In an opening statement at trial you state what the evidence is and what you will prove. At mediation you would want to use the documentary evidence in the opening statement. This shows transparency and demonstrates your preparedness and credibility as a good trial attorney. The impression you leave is used by opposing counsel and any insurer as part of the case evaluation.
Types of evidence used are separated by liability and damages portion of your case. Types of evidence used in the liability portion of a personal injury case include telephone /cell phone records, police report, witness statements, medical records, insurer recorded statements, company incident and investigation reports, and expert opinions including accident reconstructionist and engineers. The damages portion of a case include use of medical records, narrative reports from doctors (examining and IME) concerning injury type, duration, restrictions, and causal connection, and engineers on force of impact.
Evidence not used as much is the use of electronic records. The age of electronic communication with use of cell phones for email, texting, social media, and data downloads/uploads has opened a vast evidentiary mine to harvest. All cell phone and social media companies will require a subpoena to the appropriate record custodian. This type evidence can prove activities of a specific day including location and duration, identify witnesses who may have important knowledge or who can corroborate an important fact in proof of your case. Sources of information in a motor vehicle accident case also include records from the National Highway Safety Council which provide studies on use of cell phones in a vehicle and may bear on a case in proving or defending against claims of distracted driving. Evidence of reaction time combined with cell phone use in the time preceding an accident can be very persuasive. Activities after an accident can also be tracked with cell phone records. This type evidence is important regardless of the side represented as it applies to all drivers of motor vehicles involved in the accident. Cell phone records are equally important in premises cases to evaluate whether a person exercised reasonable care in moving around the specific property at a specific time before and after an accident. We all have seen people using their cell phones at a time that may not be reasonable with the activity they are performing. Cell phone records have been used in domestic and business cases as well in establishing location, contacts made, and duration of activity for a person.
Electronic records obtained from cell phone service providers for cell phone activity typically include the phone numbers (cell and landline) used in phone calls made and received, data downloaded/uploaded, and SMS texting and email activity. The cell phone records typically include this information in separate sections. Data activity includes size of file uploaded/downloaded and can help to identify texting and email use from music downloads or streaming. Date and duration of activity is important to evaluate.
Cell tower data can be obtained to discover the cell tower identity used for the phone call or text/email message. Call Detail Records (CDR) can show location information to assist in establishing the location of a subscriber/person’ activities for a specific day or time frame.
Establishing the correct time of activity is equally important. Since 1972 cell phone usage has been displayed using the Universal Time Coordinated (UTC) standard. Prior to 1972, cell phone activity time was reflected using Greenwich Mean Time (GMT). GMT is a time zone and UTC is a time standard. Using the UTC time to the appropriate time zone and whether the date(s) at issue involve standard or daylight savings time is very important to establish accurate time and duration of activity in a case. The following table provides a convenient way to convert between UTC and the respective U.S. time zone involved.
|4 p.m.||5 p.m.||5 p.m.||6 p.m.||6 p.m.||7 p.m.||7 p.m.||8 p.m.||00:00|
|5 p.m.||6 p.m.||6 p.m.||7 p.m.||7 p.m.||8 p.m.||8 p.m.||9 p.m.||01:00|
|6 p.m.||7 p.m.||7 p.m.||8 p.m.||8 p.m.||9 p.m.||9 p.m.||10 p.m.||02:00|
|7 p.m.||8 p.m.||8 p.m.||9 p.m.||9 p.m.||10 p.m.||10 p.m.||11 p.m.||03:00|
|8 p.m.||9 p.m.||9 p.m.||10 p.m.||10 p.m.||11 p.m.||11 p.m.||Midnight||04:00|
|9 p.m.||10 p.m.||10 p.m.||11 p.m.||11 p.m.||Midnight||Midnight||1 a.m.||05:00|
|10 p.m.||11 p.m.||11 p.m.||Midnight||Midnight||1 a.m.||1 a.m.||2 a.m.||06:00|
|11 p.m.||Midnight||Midnight||1 a.m.||1 a.m.||2 a.m.||2 a.m.||3 a.m.||07:00|
|Midnight||1 a.m.||1 a.m.||2 a.m.||2 a.m.||3 a.m.||3 a.m.||4 a.m.||08:00|
|1 a.m.||2 a.m.||2 a.m.||3 a.m.||3 a.m.||4 a.m.||4 a.m.||5 a.m.||09:00|
|2 a.m.||3 a.m.||3 a.m.||4 a.m.||4 a.m.||5 a.m.||5 a.m.||6 a.m.||10:00|
|3 a.m.||4 a.m.||4 a.m.||5 a.m.||5 a.m.||6 a.m.||6 a.m.||7 a.m.||11:00|
|4 a.m.||5 a.m.||5 a.m.||6 a.m.||6 a.m.||7 a.m.||7 a.m.||8 a.m.||12:00|
|5 a.m.||6 a.m.||6 a.m.||7 a.m.||7 a.m.||8 a.m.||8 a.m.||9 a.m.||13:00|
|6 a.m.||7 a.m.||7 a.m.||8 a.m.||8 a.m.||9 a.m.||9 a.m.||10 a.m.||14:00|
|7 a.m.||8 a.m.||8 a.m.||9 a.m.||9 a.m.||10 a.m.||10 a.m.||11 a.m.||15:00|
|8 a.m.||9 a.m.||9 a.m.||10 a.m.||10 a.m.||11 a.m.||11 a.m.||Noon||16:00|
|9 a.m.||10 a.m.||10 a.m.||11 a.m.||11 a.m.||Noon||Noon||1 p.m.||17:00|
|10 a.m.||11 a.m.||11 a.m.||Noon||Noon||1 p.m.||1 p.m.||2 p.m.||18:00|
|11 a.m.||Noon||Noon||1 p.m.||1 p.m.||2 p.m.||2 p.m.||3 p.m.||19:00|
|Noon||1 p.m.||1 p.m.||2 p.m.||2 p.m.||3 p.m.||3 p.m.||4 p.m.||20:00|
|1 p.m.||2 p.m.||2 p.m.||3 p.m.||3 p.m.||4 p.m.||4 p.m.||5 p.m.||21:00|
|2 p.m.||3 p.m.||3 p.m.||4 p.m.||4 p.m.||5 p.m.||5 p.m.||6 p.m.||22:00|
|3 p.m.||4 p.m.||4 p.m.||5 p.m.||5 p.m.||6 p.m.||6 p.m.||7 p.m.||23:00|
Engineers and accident investigators can use cell phone data to help establish the contributing cause of an accident by performing a human factors analysis with cell phone use. Combined with evidence of vehicle speed and distance traveled show the importance of sharing cell phone records with the respective engineer.
Use of electronic data at mediation can be a powerful tool and should be freely shared with all participants. You will find it can be a case decider and help resolve your case.
Cliff Cobb, Esq. is a mediatorAtlanta. He mediates commercial, personal injury, premises liability, product liability, auto and trucking accidents, and workers compensation disputes. To schedule a mediation with Cliff, please call 678-320-9118 or visit his online calendar.