Ten Plaintiff's Tips for Handling Dog Bite Cases

Tackle your next dog bite case with confidence with these 10 tips, excerpted from the Personal Injury Handbook*:

Case Investigation

1. Conduct a detailed analysis of the scene.

Issues usually arise as to exactly what transpired, especially if the dog was in the owner’s backyard or house. Even if the dog was out on the street when the incident occurred, other dogs may have been involved, which will make liability fuzzy. At first, even the exact location of the event may be an unknown. Therefore, it is important to visit the scene and take pictures to cover all possible situations. Bring a notepad, so you can draw diagrams and take notes. Take the plaintiff around the area where the attack may have occurred. Especially with a child victim, videotape the whole area and try to retrace the event. If the attack occurred on the defendant’s premises, attempt, as soon as possible to have an investigator photograph the scene and even take statements from the owner or any witnesses. Most dog owners will cooperate, either because they have coverage or because they think they can talk the investigator out of the case.

2.  Talk to the neighbors.

Dogs that bark a lot may have threatened or even bitten other persons, especially children, in the neighborhood. These dogs become notorious. It will not be difficult to find many people with stories about any dog that actually causes serious injuries. The more evidence of this kind that can be gathered, the more likely the insurance carrier will look at the claims of the dog owner with suspicion, and encourage settlement. Two notes of caution: First, many of these stories may be exaggerated; check them out thoroughly.  Second, don’t provide these statements to the insurance company. You may choose to furnish the carrier with names, but a skillful adjuster can use statements to produce contradictory statements and neutralize the witnesses. For example, there might be differences between the statements in timing; whether the witnesses was looking in the right direction at the time of the attack; and so forth.

3.  Check with local authorities.

The local dog pound or humane society may have records of prior bites or attacks by the dog. If the police came to the scene, they may have documented this kind of information in their report. There may also be a history of violations of leash laws that are a matter of public record.

Experts

4.  You may need an expert if . . .

The only experts at trial may be doctors and psychologists or psychiatrists, if liability is not contested and the only issues relate to damages. However, other experts may be necessary when liability or punitive damages is at issue.

The defense may claim that some other dog did it. In that case, an expert in dog dentition may be needed to match the dog’s jaw and teeth to the bite, or an animal behaviorist may be needed to address whether the dog in question was capable of inflicting the injuries. Could it, for example, have escaped its confinement or jumped or stood high enough to reach the plaintiff? If the defense claims the dog was provoked, a veterinarian may be needed to examine the dog (a motion will probably be required) or the dog’s medical records for evidence of injury from provocation. An animal trainer or behaviorist may be needed to address the dog’s temperament and training and the likelihood that it would have attacked absent provocation.

As the plaintiff, you may seek punitive damages on the theory that the dog was a guard dog, or the defendant knew the dog was vicious and failed to train it properly or abused it. Punitive damages under most statutes require malice or conscious disregard of the consequences of some act. In rare cases, the failure to train a particularly vicious dog or, conversely, the affirmative act of training a guard dog to be vicious might qualify. A dog trainer may be needed to explain what training or treatment should have been provided and to testify that proper training would have prevented the attack.

Resolution Without Trial

5. Always prepare a settlement brochure.

Elaborate settlement brochures may, or may not, be strategically helpful in many cases, but in a dog bite case they are essential. These brochures usually consist of:

• Color photographs of the injuries taken right after the attack;
• Medical drawings of the injuries;
• Medical drawings, pictures, or photographs of each plastic surgery that has taken place or is expected;
• A detailed list of past and future medical expenses; and
• A description of the attack.

Although commercial companies can be hired to produce these brochures, the better practice is to prepare them yourself, because an outside company will not understand the high points of the case nearly as well as you do.

6. Send multiple copies.

Send to the defense attorney and/or the insurance adjuster multiple copies of the settlement brochure (the more, the better), well in advance of the mediation. The reason for the multiple copies is that insurance companies work in layers, and you want to encourage the defense attorney and/or the adjuster to pass original copies up the chain of command to get the attention of the people who make the decisions.

7.  Carefully consider arbitration.

Many jurisdictions use mandatory arbitration or encourage voluntary arbitration to dispose of cases and lighten the jury calendar. Usually either side can have a second trial in front of a jury with certain potential penalties imposed on the party demanding the trial, such as paying the cost of the other party’s experts. Arbitration generally does not work to the plaintiff’s advantage in a dog bite case. Arbitration as a settlement tool diminishes the threat of a jury trial and reduces the potential recovery. The insurance carrier will be concerned over what a jury might do, especially if the plaintiff is a child who has been disfigured. That concern will translate to a much larger settlement if arbitration is taken off the table. Conversely, arbitration may work in the plaintiff’s favor if the parties know each other or are related to each other, as is often the case with dog bites. If the plaintiff and defendant are close, jurors may think they may have conspired about the facts to reach the real target, an insurance company. However, in most jurisdictions, evidence of the defendant’s coverage is not admissible, and mistakenly revealing this information will result in a mistrial.

Trial

8.  Make effective use of voir dire.

It is important, of course, to avoid dog lovers. Since many people have or have had dogs, the best you can do is to avoid people who seem to be among the most avid of dog lovers. One way to identify them is to look for people who own more than one dog. Likewise, anyone who has ever been a defendant in a dog bite case would be a sure challenge. However, this potential juror gives you a great opportunity to discuss what the insurance company did with the case and, thereby, inform the rest of the panel that homeowner’s insurance covered the loss (something that ordinarily would not be admissible in most states).

9.  Limit the victim’s presence at trial.

The victim should not be in court every day, especially if he or she is a child. Child victims will do what children do and will look too happy. It is much better for the victim to be shown in before-and-after color photographs, blown up for the benefit of the jurors. Some attorneys elect never to bring the victim to court, particularly if the victim is very young. The young victim’s absence can be explained as an effort to avoid adding trauma to trauma.

10.  Overcome sympathy for the defendant.

The biggest obstacle in winning a jury trial in a dog bite case is sympathy for the defendant. It cannot be automatically assumed that the jury will know that every homeowner probably has a policy of insurance that covers dog bites.  This problem may be acute in cases where the plaintiff and defendant are relatives or friends or next-door neighbors. To overcome this obstacle, it is important not to personalize the defendant. Do not make individual reference to the defendant at all. Instead, refer to the “defense claims” or the “defense position,” or make other similar references. Anything that will draw the jury’s attention to the idea that there is insurance coverage, without directly saying so, will help enormously.

*About the Authors

Larry Booth graduated first in his class from the University of Southern California Law Center in 1959, where he was Editor in Chief of the Law Review.  Over the course of his career, he has tried hundreds of civil and criminal cases, including personal injury and wrongful death cases involving auto defects, construction accidents, products liability, drugs, malpractice, and governmental liability.  Mr. Booth is a member of the Inner Circle of Advocates.

Roger Booth earned his law degree from Boalt Hall School of Law at the University of California Berkeley in 1991. Since 1997, he has focused his practice on representing people who have suffered catastrophic injuries or the loss of a loved one. Mr. Booth has handled more than 20 cases that have resulted in verdicts or settlement in excess of $1,000,000.

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