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Mentor Corner

WHAT I WISH I KNEW THEN
Review Client Records Before Taking the Case

Contributor   Michael L. Pitt
Pitt McGehee Palmer Rivers & Golden PC
Royal Oak

Michael L. Pitt practices in the area of employment law. A founding partner of the firm, he has successfully prosecuted complex employment and civil rights matters on behalf of individuals, groups of individuals, and class members.

Experienced employment lawyers all have anecdotes about what they discovered about a claimant/plaintiff by subpoenaing medical, psychiatric, school, and former employer records. These records may contain damaging admissions attributable to your client-to-be, such as that he or she is in over his or her head in the new position, has lied to the employer on an important topic, has made a false claim of harassment to set up the employer for a lawsuit, or has been hallucinating at work or become psychotic. Admissions like these can quickly kill a client's claim for damages against a current or former employer.

I once filed a lawsuit for a client and didn't find out about harmful secrets buried in her medical and psychiatric records until admissions in the discovery and trial phase of the case. I will never forget how stupid I felt not knowing all of these nasty things about my own client until late in the game. Ouch! I vowed never to let myself be set up for a similar embarrassing situation in future.

Before filing a case for a plaintiff in an employment dispute, I now always secure the available medical, psychiatric, school, and former employer records by having my client sign an authorization for them. If possible, I require my client-to-be to secure the records or pay for them because they can be expensive. When these records arrive, I read them thoroughly and promptly. I don't file them away without first reading them because I know I will forget about them and will later find myself in a litigation position no better than if I hadn't even bothered to order them at all. Follow-through is important.

If troubling entries emerge and my client cannot adequately explain the issue away, I take a pass on that case. The bottom line is that you are always in control of the case selection part of your practice. Taking on a reasonable amount of due diligence before you say yes to filing a suit is part of your professional duty to your client, your firm/partners, and, most important, to yourself.
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