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injuries, and make an informed decision about the potential value of her damages. Then, determine the limits of recovery. Requesting the limits of insurance cover- age from the appropriate liability insurance providers usually informs this determina- tion. However, this step may vary depend- ing on the nature of the defendant. Perhaps you will need to make an assessment of a defendant company’s liquidity, assets, or some other measure. It is important to note that agency is not something that should be pursued only if there is an insuf- ficient source of recovery. If a commercial vehicle hits your client, you might want to sue both the driver and the company for

various reasons. But in a situation where there is an insufficient source of recovery for the damages–especially where agency is not obvious–it will serve your client well to start investigating an agency theory. Second, pursue any investigative inroads that might support an agency theory prior to filing the complaint. Show up to the hearings in the underlying criminal violation. Talk to the attorneys involved in that proceeding and show up for the statements of the defendants and other witnesses. Locate publicly available infor- mation about the defendant. For example, you can often identify a person’s employer, and even their job duties, from diligent internet research. Look for information in any investigative reports of the occur- rence. You want to learn as much as you can about the economic web attached to the defendant’s conduct prior to the time you seek that information directly during discovery so that you can target issues as specifically as possible. Third, file early. Your client’s case is subject to a statute of limitations, so your investigative window is limited. You should file the case as early as possible so that you have enough time to discover and name any new parties prior to expiration of the statute of limitations. Obtain leave of court to amend your complaint and add any suspected principals under a theory of vicarious liability. Fourth, aggressively target the issue of agency in discovery. Design specific interrogatories to shed light on the nature of the defendant’s conduct at the time of the occurrence. Where does she work? Where was she coming from? Going to? Was she carrying anything in her vehicle? Transporting anything? Did she have tools? Was she being compensated at the time of the accident? Did she attend, or intend to attend, any work related events on that date? Request or subpoena any documents that could shed light on agency. Cell phone records, for example, will show whom the defendant was talking with on the date of the accident. Employment contracts and documents may give you reason to charac-

terize the defendant’s conduct as incident to employment, regardless of how she or anyone else characterizes her job duties during deposition. Union agreements often impart rights and obligations that color the defendant’s conduct and relationships. Use the vast paper trail of modern American business to your advantage. Read the fine print, literally. Exhaust the issue of agency during the defendant’s deposition. Ask every question you can think of in an attempt to uncover the economic web. Talk to witnesses and take their depositions pursuant to sub- poena. Let the information you discover guide your investigation, and let your investigation be shaped by the applicable legal standards. Ask questions during the deposition that are designed to ascertain information responsive to the legal stan- dards and tests. Ask questions that frame the facts in the same light as the facts in benchmark cases. As your theory begins to take shape, relentlessly ask yourself why your theory meets the demands of the law. Finally, realize that your efforts are undertaken to be victorious in two essential battles: the inevitable motion for summary judgment, and trial. Remember that your ability to beat summary judgment on the agency theory will often create settlement leverage that you did not previously have. And even if the defendant refuses to come to the table, your efforts will enable you to present a strong and cohesive theory to a jury. Either way, you can be confident that you have put your client and their family in the best possible position for success. Glennon F. Curran is a Partner and civil litigator at Alberts Curran & Eiler, P.C. in Chicago. Glennon is a Plaintiff’s attorney focusing his practice on personal injury, wrongful death, nursing home abuse and neglect, construction negligence, and a variety of other torts.

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