Episode 3 of Jersey Justice Podcast: New Jersey Workplace Injury Lawyers Share How to Effectively Use Evidence and Testimony in an NJ Workplace Injury Case

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Welcome to Jersey Justice, a civil law podcast that shares

practical tips and stories about personal and workplace injuries.

Joined two of the brightest New Jersey injury attorneys, Gerald Clark

and Mark Morris of Clark Law Firm.

As they take you behind the scenes of.

Justice and civil law.

But first, a quick disclaimer.

The information shared on this podcast is for general information purposes only.

Nothing on this site should be taken as legal advice for any

individual case or situation.

This information is not intended to create and does not constitute

an attorney-client relationship.

Hello everyone.

Welcome back.

On today's episode, we're gonna be talking about the pursuit, investigation, and

evidence gathering process in New Jersey.

This is really important because this is going to give you guys a

lot of information on what goes on behind the scenes of what

really needs to happen today.

I am here with Gerald Clark and Mark Morris, and I'm gonna start off the

conversation by going to Jerry give us a summary of what we're gonna cover.

When you have a case like this, we're talking like about construction

injury cases, workplace setting cases.

It's really important to gather the evidence because if you can't prove

your case, you can't win your case.

And it's super important to gather evidence early on because

that's when the evidence is fresh.

The surveillance video hasn't been recorded over yet.

Witnesses are still around.

The memory is still fresh.

That's what that's about.

It's about jumping on it right away, gathering the information

that will be critical to help the case get one in court.

Yeah, and I think that's really important.

And you know, some of the things we are gonna even talk about the role that OSHA

plays in workplace injury investigations.

We're gonna be talking about the importance of giving notice of a

claim and also sending an evidence preservation letter and many other things.

But those are just, you know, some overviews.

So Jerry, maybe you can talk to us a little bit about, you know, the role

of osha, because that plays a huge role when it comes to workplace injuries and.

Also I, I'm just curious to know if there's other organizations

that, you know, injured workers need to be aware of when it comes

to injuries, let's say if they were injured on a construction job site.

So, in terms of osha, OSHA is the federal agency.

It's part of the United States Department of Labor.

The head of the Department of Labor is a cabinet level position in the president's

cabinet, and the Department of Labor enforces the OSHA rules and regulat.

And all throughout the United States and its territories, there are OSHA offices.

I believe in New Jersey.

There is an OSHA office in North Jersey and there is an

OSHA office in South Jersey.

Marton and OSHA has investigators.

I think they are called occupational health and safety officers.

And their job is to investigate hazardous workplace conditions, to educate employers

and if necessary, to find employers that don't follow the OSHA safety rules, both

in construction sites, in factories and industry, and other workplace settings.

So OSHA's the most important.

Now, whether or not OSHA comes out to a construction site or responds to an injury

often depends on the funding levels.

So like Congress will fund OSHA and depending on the budgets each year,

Some administrations will give more money to protecting workers, and some

administrations will give less money and whoever's in power, and if they have

less money, they hire less investigators, and then they can investigate the sites.

So basically what happens is if there's an injury and someone calls osha, if

it's a very bad injury or a fatal injury or something that's very obviously went

awry, often the police will call the local OSHA office and the investigator will.

The investigator will take pictures and they will interview witnesses and

determine if there's been a violation.

Now, if there's been a violation that doesn't do much for the

worker itself, what happens is the employer will get fined.

It's usually maybe a thousand bucks or few thousand dollars.

Seven or $10,000 would be a lot in my experience, which is nothing

compared to the injuries that the employee sustains in many cases.

And that money doesn't go to the employee, it goes to back

to OSHA as I understand it.

But what is very helpful with that investigation is as part of

this, as an attorney experience in doing workplace injury cases, is

we can get that information from osha, we can get their invest.

We can get the photos, the statements and all of that can be very, very helpful.

Improving a case.

So that's important.

In terms of the role of OSHA coming into the, to the work site and

investigating it, Jerry said it.

Obviously OSHA applies on all construction sites, but OSHA can't

be everywhere once it's a limited government agency, so you're not

gonna have that perfect scenario where OSHA came out and investigat.

And gave this thorough report on every job site.

So even though there may have been OSHA violations and an incident that

should have been reported to OSHA and investigated by osha, you're

just not gonna have that in a lot of these construction injury cases.

But you definitely want someone that do us to look for it.

Yeah.

And can you guys talk a little bit also about the, you know,

the giving notice of a claim and sending an evidence preservation?

This podcast, it's good for people that want to know behind the

scenes and stuff, but it's also good for attorneys, I would say.

And a lot of this is more, I would say for attorneys because once the client

picked a good lawyer that knows what they're doing, they shouldn't really

have to worry about this stuff too much.

Whether or not OSHA comes out and does an investigation, it can take a long time

to get their investigation materials.

So really, it's a good idea for the attorney or law firm to send

out an investigator depending on the facts of the case and

depending on the timing and everyth.

And then that investigator can do what else she would do, which is take pictures,

gather evidence, and that sort of thing.

Also, like kind of legally speaking for other attorneys, you have to jump

on cases right away because there could be notice of claim issues.

So for example, if a claim is brought against a public entity, which would

be like a government agency or any kind of a government related thing, in New

Jersey, a notice of claim probably has to be filed, and that's usually within 90.

So that's important legally for notice of claim, just to satisfy legal requirements.

If that's not done, the case could be thrown out, ending on the facts and

the circumstances and who's involved.

But it's also a good idea just to give notice that it even happened to fill out

a report to say, Hey, this happened to me.

Because when these insurance companies and defense attorneys get involved,

the first thing they're going to do is question whether or not it even happened

and determine, Hey, is this a fraud?

Is someone you know baking that an incident happened?

Man, a lot of times that can get bungled early on, and so it's

important for that notice of claim form for a report to be filled out

and for the authorities to be contact.

And also in terms of contacting osha, anyone can call a local office

and report a safety violation.

I believe they have an 800 number for that.

And it can be done anonymously because the whole point behind it is

that workers don't feel like they'll be intimidated or will have get

fired or something for doing this.

So it is anonymous and anyone can report a.

Even if someone hasn't been hurt, I think there's things called an imminent safety

hazard where OSHA could come out and and stop issue, a stop work order on the job.

I believe they can do that.

Don't quote me on a hundred percent, but there's things they can do when

there's an imminent hazard to a worker.

Thank you for that.

And actually, we will provide all of that information and the

resources for our audience so they can refer to that if they need it.

Thank you.

Yeah, and then we'll just kind of, I guess, jumping off from that.

OSHA isn't the only, I guess, public resource that we would try and track down

in a lot of these construction cases.

Oftentimes, if at the big job there's gonna be a town file, so

we will send out a letter to the town requesting that they make the

town file available for inspection.

We usually, it's an Oprah request and sometimes they'll just produce the

documents, or if it's a big job, we'll literally get in the car and drive down.

Whichever municipality was where this happened, and spread out everything

from architectural plans to permits for sewer opening to make sure that,

number one, we're identifying all of the right parties in the case, like all the

people that should be sued, you know, that claim should be brought against.

And then also just to see if there's any helpful nuggets in there.

Like, Hey, you were, you know, told on this day that there's too many workers.

On the roost without fall protection or that, you know, hey, this trench was

noted to be potential collapse issue.

You know, it's rare that you find those things, but in the event that they're

there, it's, it's definitely something you'd want to try and track down.

Great point, mark.

Thank you for sharing that.

Yeah.

The other thing too, on that dimple is under like, not to get too legally easy

here about, but under New Jersey law, there's an administrative code and there's

a regulation that says the contractor on the building, Is required to make sure

that that job is done in a safe manner.

So it's critical to identify who the contractor is on the building permit.

It is usually a general contractor, and they have a responsibility to make

sure the safety rules are followed.

Yeah, so that's important too.

Yeah.

Thanks for, thanks for sharing that as well.

And Jerry and, and Mark, whoever wants to take this one first, if you

can shed a little bit of light in terms of the process of witnesses,

taking the right type of photos and videos and conducting the onsite

investigation, because I think that.

That's so critical to get the right evidence at that time.

And a lot of times because people don't know what evidence to gather or they

missed certain steps of this process, it can really, you know, impact their

claim negatively because they don't have all the proof that they should

have gathered right on the spot.

So what are some pointers for that and the process?

This is discipline's kind of a hybrid.

I think some of what we've said has been helpful to people who get hurt.

Some might be helpful to attorneys discipline's.

Right in the middle, but, so in terms of, I guess, early investigation, what

you want to gather in these cases, what we're supposed to show, and I think we've

touched on it, is that the defendants knew that the workers will work a

in an unsafe way and down the road.

The low hanging fruit in these cases is for the defense to blame the worker.

But that's not how these cases are supposed to.

So what we're trying to find early on is that the defendants knew that

the work was being done unsafely and didn't do anything about that.

So the way we can show that is by showing that they had something called

construct notice, where people were working in a dangerous way on this job

site in a general sense, and therefore it's more likely than not that they

knew or should have known that first knew it's injured, was also working in

that safe, unsafe way when they got.

The best case scenario with, I think we actually have had the specific case

or scenario isn't coming to mind, but would be essentially the defendants,

the general contractors standing right there watching the worker work in

the unsafe way that they became hurt.

And that would be, that would, that would just be actual note

that they knew that the worker was working in a safe way when they.

Jerry, I can remember we had a case, it was a guy was installing, I think like

floor joists and he was up on the second story and he didn't have fault protection.

I think he was 10 feet up.

He was on, you know, the top of that, about to do the joy for the, the

second story, which are like the, the main beams for the floor, Eddie F.

And he got really hurt and we were doing some of our early invest.

And we found a promotional video for the general contractor or the contractor

above the company our guy was working for.

And in the promotional video they have their guys with their like shirts to

the logos on standing there pointing at the work as workers are working

with no fault protection, doing the exact same payment our guy was doing

when he fell down and got hurt.

So in that case, that was, we had a perfect smoking gun right there.

And it was a fun de.

We're working on a case.

This is a case where they were building a hotel in North Jersey forklift that was

approved to lift workers on the job site.

The case alleges that the workers were put in these job made boxes, and it's also

alleged that the general contractor on the site knew about that, allowed it to.

It's very important in these cases to prove that the general contractor

knew about the hazard or took a blind eye to the, the hazard, or let

hazards generally exist, meaning OSHA violations on the job often because as

we've said before, it costs money and it to follow the rules and enforce the

rules when they're trying to maximize.

So we had one particular case where the contractor was denying that they

knew that they ever saw, and I don't know if I can share my screen, I might

be able to, in our investigation, we were able to find this photo, which

was taken 10 days before the worker, in our case, where the, the job made box.

And it showed the people from the general contractor actually looking

at workers in a job made box on that very job site 10 days before.

So that was very helpful in showing that they knew that they had knowledge.

So this is the kind of investigation documents that super

important to get in these cases.

You know, they.

Workers were ever in boxes before and then, then they denied knowing

workers were in boxes before.

And because of investigation that we did and being very aggressive supporting

our clients' rights, we were able to dig up that and many similar photos,

which on that very job, which showed the very thing that they denied took place.

That stuff's very important, the investigation, and the earlier you

can get that stuff, the better it.

So with that whole investigation process, I mean for this particular

scenario that you just presented, how long did that whole process

take to really make some leeway?

That's a great question.

Di, generally speaking, you know, this was before covid.

We would generally tell people that once a case is put in suit,

it can take anywhere from like one year to three years to be over or

because of covid and a lot of stuff.

This case is still going on.

It happened in 2014.

The case was filed in 2016, but we have a trial coming up, so hopefully

we're getting towards the end.

So it takes long and they don't turn these pictures up easily.

It takes a lot of fighting and a lot of zealous legal advocacy

to, to get that kind of thing.

So on that note, do you think that some, you know, lawyers give up too easily

because they just are moving on to the next thing and it's too difficult to

get all of that evidence or, you know, get permission to have access to those?

It happens all the time.

I took a deposition two days ago on a case, and we do a lot of these

construction injury cases and on this particular job site, the developer, they

were building one of those box stores where they sell stuff really cheap.

This was a large national chain that was building this store, and a worker was up

on scaffolding, installing the siding.

The scaffolding had no fall protection.

The worker fell, was severely injured, and we got their initial discovery responses.

Discovery responses is, is written questions that they answer in the

case about basic questions about, Hey, what happened and who's who,

and turn over any documents you have.

And they're sworn under oath the.

These answers sworn under oath.

You know, we asked for basic things like your project file, which is the

file for the construction job with the contracts and the bids, and the

checks and the letters and the photos and the building plans, kind of things

you would have in a construction file.

And they answered these sworn discovery responses saying

they didn't have any of that.

They had no file, and then they provided in the affidavit, Principal

from the company saying we had no involvement with the construction job.

In fact, we had no interest in it.

And I looked at these and having done so many of these cases, I highly

suspected those answers were fraudulent.

And I told the lawyer that I wrote him a letter.

I we're not dismissing the case.

They asked us to dismiss the case based on the affidavit that they

had nothing to do with anything.

And I said, I highly suspect your answers are largely fraudulent, and

I suggest you talk to your client every and, and change 'em and

review them, and he never did that.

We took the deposition two days ago.

Lo and behold, the answers were absolutely fraudulent.

So much so that the attorney pled the Fifth Amendment in a, in a civil

deposition in response to questions because one of the questions.

Please produce any progress photos you have related to the

job, and the answer was none.

No progress photos.

And I said, why did you answer none to that?

And he ended up taking the Fifth Amendment direct, which means directing the witness

not to answer the question because his answer might tend to incriminate him.

I suspect the lawyer did that and provided those answers because

most lawyers would just, oh, okay.

That must be it.

Let me sign the dismissal and move on to the next one.

But we don't.

We don't do that.

We've done a lot of these generally.

We've done a lot of these cases.

We know what we're looking.

And in just about every case I've had like this, they never turn over

the important materials right away.

It requires motions and court borders and a lot of work.

Basically what happens is these insurance companies are often funded to the tune

of billions of dollars, and they're just looking to wear ordinary people down.

They're looking to wear down the lawyers, they're looking to outspend

them and slog 'em down in court so that they can avoid paying.

The results of their conduct, which is workers getting injured really bad.

I just wanna add one thing, mark, and then you got the mic.

I think that's really important because with insurance companies,

their goal is to, you know, spend the least amount of money and give

out the least amount of settlement.

And for an injured party who's not knowledgeable about this stuff, you

know, the insurance company might say, oh, we're gonna give you $50,000,

and they don't realize that their injury may be worth $2 million.

And they're just uninformed, right?

And I think it's so important that these workers and their families are informed

because if they know what their rights are, they know what they may be entitled

to based on the type of injury, based on the type of suffering and loss of wages.

All of those things, I think they can get a better outcome.

But it's that lack of knowledge that really the insurance

companies, in my opinion, take advantage of these four people.

You know, their job is not to give out money, like it's free.

And that's why lawyers have to fight for that really hard and even

to get different things like the evidence and the photos and all that.

But that to me, that's a difference between a good lawyer and imed lawyer is

one that's gonna go above and beyond to get all the, the pictures, the evidence,

the things that are locked up in vaults to actually fight for their client.

So that's, that's my opinion.

And Mark, I'd love to hear what you have to.

No, it's, you're absolutely right.

And Jerry's absolutely right too.

It's pretty much every single one of these construction cases, it's the same thing.

And you get these non-responsive answers.

And we do something called a morman request for more specific answers

to the interrogatories, a question, the answers that were sent out.

And then sometimes we get a response back, but more often than not, we

have to make an application with the court to get the defendants

to answer these basic questions.

And then to Jerry's point, talking about something.

Job site photos are a project file.

We've had cases where they say, you know, not applicable objection

or We don't have a project file.

And then after rounds and rounds of motion applications of court, they give us the

project file, which is an entire room and a warehouse filled with documents relating

to the project that we've been at.

So it's in, you see, in every case, it's just a matter of on a what.

You see it too.

And just kind of jumping off, one of the last thing that Jerry said, talking

about the insurance companies, I, I don't remember which one it was, but essentially

there, there was like a PowerPoint presentation put out to adjusters.

And I think it's a picture of a person like hanging from

a rope above an alligator.

And the caption is delay claims, delay, delay, delay.

People will either give up hope and.

Dismiss the case or they'll die and the case will be less

valuable because they're dead.

There's no more pain and suffering.

So there's, you know, every commercial you, you see when you're watching

sports or, or whatever, it's some cute little mascot or you're in

good hands or something like that.

But the, the game is to pay out the least amount on the claims and to

pay out as few claims as possible.

So you absolutely need the right attorney that's going to keep fighting.

And first, with these construction cases pushed through, Nonresponsive

answer, nonresponsive answer to get the things you need to prove your case.

And also I would say, I think, you know, for the injured client, it's

important for them also to realize like, These things take time and

it's important to be patient.

You know, if your case is valid, there's evidence there in your favor.

You have a good legal team on your side, you can get a favorable outcome.

But it, it doesn't happen overnight and you do have to be patient with it.

You know, you can take what the insurance company offers you, or you

can wait and you can get the proper settlement that you're entitled to

based on your injuries and the evidence.

So I think it's about educat.

Clients too can imagine that clients will get impatient and,

and it's understandable, right?

Because they're suffering, they don't have income coming in, things like that.

Or they're not compensated for the type of injury that they receive.

So what I wanna know is how do you guys have those difficult conversations

with your clients to educate them and say, Hey, this is the course of

action we're gonna take and this is why we're doing things the way we are.

This is why it takes long this time period to get this.

And dimple.

I, we kind of try and set that up from the client.

Intake is our first, some of our first interactions with the client

and the example we've talked about being a McDonald's or a fast food

chain versus steak restaurant.

Our clients know that.

We tell them, you know, we're selective about the cases we take and

it's not all a smoke screen or, or beating our chest when we say that

we prepare cases, you know, to try.

Because we often find that by working the case up, which takes time, certainly takes

more time than just taking the first offer that the insurance company gives you.

But we find by working the case up for trial, preparing for trial of being

ready for trial, that that often is the stage at which the insurance company

will kind of give their best offer.

Because I always tell clients that it's not a game because it's their lives,

but it a little bit is a game where you're playing poker or, or chicken.

It's who's gonna fold?

And a lot of firms early on will push their cards.

Then they want to take the low hanging fruit, the money that's there, and

that's just not how we operate.

Look, there's some cases, it'll just be so cut and dry that, you know,

Hey, it's a limited insurance policy.

The person's really badly injured, here's the money.

But that's rare, you know, when one of those cases comes through the door,

it's, it's the exception, not the norm.

Yeah.

So, mark, I have a pop quiz for you, so let's up.

Which would you pick?

Would you pick McDonald's or the steakhouse?

The steakhouse.

I would steak.

I would go medium rare and I would choose the steakhouse.

And if the order takes a little bit longer to come out, that's okay

cuz I'm not gonna feel as bad cause they'll get to go back and do it again.

That's the thing, these cl they don't get, that client doesn't get to

say, you know what, that settlement I took, that was a little light.

I'm gonna go back in in five years from now cuz I'm still in a lot of.

And ask for more money.

You can't do that.

So that's why we kind of try and make sure that they're positioned and

they understand all that Good answer.

Yeah.

Thank you for sharing that.

I think when you bring it up that way, it helps the audience understand, cuz

you're painting a picture for them.

Like what's really the difference between, you know, when you go

to McDonald's, when you go to a steakhouse, then there is a difference.

Wait, you go to McDonald's, your food's probably sitting there cold and you get

it really quickly, but then you're at the steakhouse and you're gonna sit there,

you're gonna wait, you're gonna enjoy the experience and maybe you're hungry.

And maybe you'll get a little bit of bread.

So maybe it's a little bit of help coming in, but then it's not

the full settlement because that has to be, you know, worked on.

Right.

So great example.

Thank you for sharing that.

And Jerry, what else do you wanna share about this whole

investigation and process?

I think that's it.

I think we covered it and I think we're pretty good for now for this.

Wonderful.

Alright, you guys heard that.

We'll see you guys on the next episode.

Thanks for tuning in.

Make sure that you'll share this out to your friends and you subscribe

to the show because we're gonna be putting out a lot of great content.

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