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Welcome to Jersey Justice, a civil law podcast that shares

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practical tips and stories about personal and workplace injuries.

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

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and Mark Morris of Clark Law Firm.

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As they take you behind the scenes of.

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Justice and civil law.

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But first, a quick disclaimer.

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

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

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individual case or situation.

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This information is not intended to create and does not constitute

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an attorney-client relationship.

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Hello everyone.

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Welcome back.

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

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evidence gathering process in New Jersey.

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

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

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really needs to happen today.

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

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

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

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injury cases, workplace setting cases.

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

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your case, you can't win your case.

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

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that's when the evidence is fresh.

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The surveillance video hasn't been recorded over yet.

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Witnesses are still around.

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The memory is still fresh.

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That's what that's about.

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

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

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Yeah, and I think that's really important.

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

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plays in workplace injury investigations.

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

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

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But those are just, you know, some overviews.

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

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

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

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

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

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

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

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

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

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

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I believe in New Jersey.

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

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OSHA office in South Jersey.

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Marton and OSHA has investigators.

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I think they are called occupational health and safety officers.

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

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

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

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So OSHA's the most important.

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

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often depends on the funding levels.

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

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

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

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

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

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

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

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The investigator will take pictures and they will interview witnesses and

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determine if there's been a violation.

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

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

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

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

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

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

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to OSHA as I understand it.

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

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

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

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

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Improving a case.

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So that's important.

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

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investigating it, Jerry said it.

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

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

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

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And gave this thorough report on every job site.

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

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

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

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

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Yeah.

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

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

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

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

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

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

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have to worry about this stuff too much.

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

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to get their investigation materials.

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

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out an investigator depending on the facts of the case and

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depending on the timing and everyth.

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

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gather evidence, and that sort of thing.

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

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

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

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

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

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

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

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the circumstances and who's involved.

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

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

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Because when these insurance companies and defense attorneys get involved,

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

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and determine, Hey, is this a fraud?

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Is someone you know baking that an incident happened?

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

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

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and for the authorities to be contact.

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

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and report a safety violation.

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I believe they have an 800 number for that.

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

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

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fired or something for doing this.

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So it is anonymous and anyone can report a.

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

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

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I believe they can do that.

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

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there's an imminent hazard to a worker.

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Thank you for that.

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

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

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Thank you.

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

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

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in a lot of these construction cases.

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

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

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town file available for inspection.

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

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

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Whichever municipality was where this happened, and spread out everything

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

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

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

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

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

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

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noted to be potential collapse issue.

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

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

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Great point, mark.

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Thank you for sharing that.

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Yeah.

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

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

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

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that that job is done in a safe manner.

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

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

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sure the safety rules are followed.

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Yeah, so that's important too.

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Yeah.

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Thanks for, thanks for sharing that as well.

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

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

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

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investigation, because I think that.

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

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

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

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

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have gathered right on the spot.

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So what are some pointers for that and the process?

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This is discipline's kind of a hybrid.

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

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Some might be helpful to attorneys discipline's.

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

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

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

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in an unsafe way and down the road.

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

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

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

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

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

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

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

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

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that safe, unsafe way when they got.

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

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

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the general contractors standing right there watching the worker work in

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the unsafe way that they became hurt.

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

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

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

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

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I think he was 10 feet up.

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

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

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

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

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above the company our guy was working for.

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

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

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

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when he fell down and got hurt.

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

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And it was a fun de.

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We're working on a case.

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

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approved to lift workers on the job site.

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

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

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

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

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

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

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rules when they're trying to maximize.

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

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

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

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

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And it showed the people from the general contractor actually looking

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

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

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So this is the kind of investigation documents that super

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important to get in these cases.

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You know, they.

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

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workers were in boxes before.

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

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

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

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

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can get that stuff, the better it.

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

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

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take to really make some leeway?

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That's a great question.

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

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

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

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because of covid and a lot of stuff.

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This case is still going on.

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It happened in 2014.

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

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we're getting towards the end.

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

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

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to, to get that kind of thing.

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

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

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

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It happens all the time.

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

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

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

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

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on scaffolding, installing the siding.

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The scaffolding had no fall protection.

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

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

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

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and turn over any documents you have.

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And they're sworn under oath the.

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These answers sworn under oath.

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

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

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

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you would have in a construction file.

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And they answered these sworn discovery responses saying

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they didn't have any of that.

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

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

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In fact, we had no interest in it.

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

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suspected those answers were fraudulent.

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

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I we're not dismissing the case.

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

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had nothing to do with anything.

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

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

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review them, and he never did that.

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We took the deposition two days ago.

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Lo and behold, the answers were absolutely fraudulent.

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

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deposition in response to questions because one of the questions.

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Please produce any progress photos you have related to the

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job, and the answer was none.

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No progress photos.

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

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

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

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I suspect the lawyer did that and provided those answers because

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most lawyers would just, oh, okay.

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That must be it.

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

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But we don't.

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We don't do that.

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We've done a lot of these generally.

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We've done a lot of these cases.

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We know what we're looking.

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

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the important materials right away.

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

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

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

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

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

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

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

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

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

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out the least amount of settlement.

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

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

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

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And they're just uninformed, right?

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

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

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

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

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

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

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

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

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

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

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

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

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So that's, that's my opinion.

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

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

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And Jerry's absolutely right too.

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

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And you get these non-responsive answers.

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

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

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

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

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to answer these basic questions.

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

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Job site photos are a project file.

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

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or We don't have a project file.

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

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

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to the project that we've been at.

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

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You see it too.

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

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

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

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

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a rope above an alligator.

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

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People will either give up hope and.

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

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valuable because they're dead.

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There's no more pain and suffering.

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

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

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good hands or something like that.

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

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pay out as few claims as possible.

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

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And first, with these construction cases pushed through, Nonresponsive

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

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

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

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it's important to be patient.

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

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

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

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

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

Speaker: 00:22:13

based on your injuries and the evidence.

Speaker: 00:22:15

So I think it's about educat.

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Clients too can imagine that clients will get impatient and,

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and it's understandable, right?

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

Speaker: 00:22:25

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

Speaker: 00:22:29

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

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

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

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

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And dimple.

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

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

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

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chain versus steak restaurant.

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Our clients know that.

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

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

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we prepare cases, you know, to try.

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

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

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

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

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will kind of give their best offer.

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

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

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It's who's gonna fold?

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

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

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that's just not how we operate.

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

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Hey, it's a limited insurance policy.

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

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

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

Speaker: 00:24:01

Yeah.

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

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Which would you pick?

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Would you pick McDonald's or the steakhouse?

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The steakhouse.

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I would steak.

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

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

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

Speaker: 00:24:21

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

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

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

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And ask for more money.

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You can't do that.

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

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they understand all that Good answer.

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Yeah.

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Thank you for sharing that.

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

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you're painting a picture for them.

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

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

Speaker: 00:24:51

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

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

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

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

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

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

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Right.

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So great example.

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Thank you for sharing that.

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

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investigation and process?

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I think that's it.

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

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Wonderful.

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Alright, you guys heard that.

Speaker: 00:25:26

We'll see you guys on the next episode.

Speaker: 00:25:28

Thanks for tuning in.

Speaker: 00:25:28

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