CBA Record July-August 2015

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Y O U N G L A W Y E R S J O U R N A L
Nielsen Career
Consulting
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For Attorneys
Strategies and support for
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• 30 Years of Experience
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Sheila Nielsen, MSW, JD
The Park Monroe
65 E. Monroe St., Ste. 4301
Chicago, IL 60603
(312) 340-4433
46 JULY/AUGUST 2015
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
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.
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-