Estate benefits from CNO investigative work
In the popular TV series “Law and Order,” the story line is always built in two parts. First, the police investigate the case, then the various attorneys take it to trial. In real life, that first part –– the role of a creative investigator –– is often handled by an attorney. As a result, cases are often won before they get to court because a diligent lawyer has pushed well beyond the obvious to discover essential facts.
Consider the case of a fatal speedboat incident on Lake Rabun. A houseguest at a lake home was swimming in the lake on a sunny day when he was hit by a speedboat. The swimmer’s leg was cut off in the impact and he bled to death.
In the trial to determine damages, attorneys for the boat operator claimed it was reckless for anyone to swim in the middle of a lake regularly used for boating. They were assisted by law enforcement officials who compared it to “jaywalking on I-75.” Had the strategy of attributing negligence to the victim prevailed, the victim’s estate would not have been awarded much of a settlement.
In this case, however, the estate was represented by Jay Nohr, an attorney from Cauthorn Nohr & Owen.
“The defense faulted our client’s husband for swimming ‘in the middle of the lake,’ as if he shouldn’t have been there. But Lake Rabun is no more than 600 feet across at the point of the collision ,” Nohr said. “It’s a narrow lake and swimmers are common, particularly on a weekend. Plus, a lake is not an interstate. Boats do not have the right of way and the law requires operators to keep a proper lookout at all times, particularly for swimmers. Based on these factors, liability would depend upon visibility. Given prevailing conditions, could a boat operator see and avoid someone swimming in the water if they were paying attention?”
Nohr’s investigation set out to answer that critical question. He learned there was a YMCA summer camp across the lake and that counselors frequently take campers out on the lake - without incident. He also found a YMCA camp counselor who used a boat identical to the one driven by the Defendant for daily water sports on Lake Rabun every summer. Using this information, Nohr set out to answer the question of visibility. He knew experts would be critical and retained a Ph.D. visibility expert and a maritime expert with an engineering degree from the U.S. Naval Academy and 30 years of engineering experience.
“Because visibility was the central issue in the case, I believed we needed to conduct re-enactments on Lake Rabun. Finding a YMCA counsellor who drove campers on an identical boat under the same conditions as the collision was extremely valuable. He agreed to participate in our visibility testing and re-enactments, all of which were video recorded,” Nohr said. “Using the information from the testing and this witness, our experts were able to determine that any boater paying reasonable attention would have seen and been able to avoid someone swimming in that part of the lake under similar conditions.”
Most attorneys know the law, but exceptional attorneys know how to get out in the field and discover the real facts and issues behind the case. “The defense was very confident a jury would not find the boat driver at fault. That changed after our experts revealed the re-enactments and visibility testing we performed on Lake Rabun,” said Nohr.
The result of Nohr’s above-and-beyond detective work resulted in a seven figure settlement for the client’s estate.
“I learned a long time ago that you can’t sit back and go through the motions as a lawyer,” Nohr said. “To maximize a client’s financial recovery, you have to get out and work the case like a detective.”