Here are several instances where the benefits of my conducting an early site visit bore dividends:
Americans With Disabilities Lawsuit
Federal lawsuits filed by ADA plaintiff attorneys oftentimes contain boilerplate pleadings replete with standard allegations about how public restroom facilities fail to comply with technical rules and specifications designed to aid in providing access to disabled individuals. In one federal case involving a family Italian restaurant being operated in the Arden Arcade area in a pre-building code facility, the disabled plaintiff alleged generically that he steered his wheelchair into the men’s restroom but that once inside he was prevented from using the bathroom due to inadequate toilet stall space. On a hunch, I arranged with my client (the restaurant owner) to visit the site prior to filing response in court – or even retaining an ADA premises compliance consultant. Once there, it took me all of two minutes to understand, based on the layout of the narrow hallway leading to the restroom, that it would be impossible for the plaintiff to navigate a wheelchair down the narrow hallway and into the restroom only to be stymied in his alleged effort to use the bathroom stall due to its size.
I went back to my office and called the plaintiff’s counsel to demand that the plaintiff dismiss the case due to obvious factual misrepresentations. To further convince the lawyer to dismiss the case, I threatened to request that the court compel a “reenactment” of the plaintiff’s alleged journey down the hallway and into the bathroom – an obviously impossible task. The case settled for a nominal amount much to the relief and satisfaction of the restaurant owner.
Employment Wage and Hour Litigation
In defending employers in wage and hour litigation (particularly in a class action context), it is vitally necessary to understand the layout of the company’s operations, the physical plant layout of where breaks or lunches and where employer/employee meetings occur. In one memorable case involving a commercial roofing company, my visit to the company’s premises to check out the facility and work yard provided invaluable insights that effectively rebutted the plaintiffs’ false allegations that employees were universally and habitually forced to show up and work off the clock during preparation for the day’s work. Viewing the company premises allowed a clear picture of where employees would posse up each morning and the specific locations for the various assignments for loading materials and readying the vehicles that transported the workers to the job site. A quick visit to roofing company’s facility made it clear that many of the plaintiffs’ allegations and inferences were obviously wrong or vastly overblown.
It might be possible to litigate a wage and hour lawsuit brought against a roofing company (or some other type of employer) without ever seeing the workplace at issue. But I strongly believe that seeing with your own eyes the way that the workplace is set up provides a much more accurate and nuance way of developing a compelling defense. Seeing with your own eyes an employer’s break and lunch areas, private spaces for use by lactating mothers, or work stations provides a more accurate understanding of alleged problems and an enhanced ability to ascertain whether the allegations of wrongdoing are real or overblown in a specific case. And that level of personal understanding can often help you work with the client (or expert, if needed) to create helpful graphics and tables that will aid tremendously in demonstrating your client’s story in a trial or arbitration proceeding.
Real Estate Litigation
It’s a given that conducting a personal inspection in a real estate lawsuit should be mandatory. In a graphic example of the benefits that flow from a personal site visit, I represented a client who hired CohenDurrett, LLP, to represent her in a non-disclosure lawsuit against the seller of a home. Specifically, the gist of the case was that the seller failed to disclose to her a large amount of asbestos material in the attic of the home.
While its common to rely almost exclusively on contamination and remediation experts in such cases, I did climb into the attic myself for a look. There was a lot of asbestos that certainly would be reported in an expert’s evaluation. However, that case did not settle and my client was forced to proceed with arbitration on her fraud claims. Being armed with personal knowledge regarding the extent of the contamination in the attic enabled me to vigorously and decisively expose the seller’s repeated patently false assertions under oath that the material was unknown to him at the time of sale to the client. The arbitrator awarded the client complete relief.
These are graphic examples of situations where physically viewing the site at issue permitted a stronger evaluation of the case and a vastly superior overall strategy for representing the client. A good lawyer who understands the relevant law can simply read a complaint, without leaving his or her office, and often ascertain a viable litigation strategy by doing nothing more. But I believe that there’s no substitute for personally viewing the site as part of the process of formulating superior persuasive approaches and arguments. And, like most lawyers, I enjoy getting out of the office and meeting with clients!