Mistake #1: Not Evaluating the Dog

A video presentation of the defendant's dog is possibly the most powerful evidence to determine if the dog has dangerous or vicious propensities. If the dog is displays aggression during a professional evaluation, each member of the jury will get to fully experience that behavior at trial. Having this knowledge will help the adjuster in several ways. First, if the defendant claims that his or her dog is not aggressive, then it diminishes the insured's credibility and affords a more realistic evaluation of the case.

Second, the adjuster has the opportunity to experience the plaintiff's most damaging evidence against their insured which may lead to an early settlement. On the other hand, if the dog is shown to truly be non-aggressive, then a powerful piece of evidence in opposition to the plaintiff's account is available for settlement negotiations or trial. Of course, it is important that the evaluation is set up correctly and that no opportunity to view and record the dog's unprovoked behavior in various situations is missed. There are many questions that have to be answered and planned for when setting up the format for an evaluation:

• Was another dog involved?
• Did the incident happen on the defendant's property or somewhere the dog would relate to as neutral territory?
• Has the defendant made any statements that could be tested during the evaluation?
• Which testing protocol should be used?

The goal is to set up a foolproof and professional evaluation as soon as possible after the incident so that every bit of information possible is obtained, as immediacy is a prime factor. Often, the dog is given away, disappears, or dies for one of many reasons. The opportunity to evaluate the animal is gone and with it a possible turning point in the plaintiff's case. Fortunately, a solid presentation can be conducted even if the dog is no longer available, but no other evidence sums it up quite as well or intensely.

The choice not to evaluate the defendant's dog, especially if the dog is alive and available, can easily backfire. If you have retained an expert, not evaluating the dog can be used to show that not only did the expert not perform a complete investigation but that the expert's opinions are based on secondhand information. In a case where the plaintiff's expert conducts an evaluation but the defense expert does not, problems may arise. If the plaintiff's expert was able to see and evaluate the dog, his or her testimony would likely carry more weight.

Mistake #2: Scene Inspection

If a dog living at the defendant's home spends time indoors, then it is important to conduct an inspection inside the home. Chewed door or window frames, scratches on doors, the dog's bed or lack of one, photos of dogs on the wall, and more can give you a sense of how the dog was treated and how it acted in the house. A plethora of toys in every room gives a lot of information about whether the defendants were indulgent with their dog.

Inspecting leashes, collars, chains, dog houses, food bowls, kennels, yards, and toys also provide a wealth of information about the dog to someone who deeply understands the human/canine companion bond and how it influences behavior. Does the owner use a choke or prong collar? Is the dog's leash extendable to 15 or 20 feet? Is the water in the bowl dirty? Does the fence meet the standard for containing a dog of this size? Is there any evidence that the dog was aggressive at the fence and or property boundaries? Mistake #3: Using the Wrong Interviewer

Often, statements of witnesses are taken by experienced interviewers who have little familiarity with animal behavior. As a result, the evidence they discover leaves openings that can be explored by the defense. What if a witness gives a statement that the dog was aggressive and it scared him or her? That sounds like solid evidence, but what does it really say? Aggressive is a general term that can mean many things. In one case, the witness who labeled a dog aggressive meant that the dog had a lot of energy and played really hard or “aggressively.”

The fact that a dog has scared someone based only on the person's non-expert perception of the dog has little meaning unless the dog actually demonstrates threatening behaviors. A dog that barks at people passing the property may seem aggressive, but barking is not considered an aggressive behavior on its own. Even a statement from a witness that a dog barks aggressively can be challenged unless it is dissected and proven to reveal truly aggressive behavior, though it may just be the witnesses' personal observations and reactions.

Additionally, an interviewer such as a private investigator may miss important information because he or she did not realize that a number of follow-up questions were necessary to insure a valuable interview. It can be frustrating to learn that a second interview is necessary, but that the previously willing witness seen by the investigator is now not so willing to cooperate and that a opportunity has been lost.

Mistake #4: Missing Important Discovery Documents

The laundry list of important discovery documents needed in a dog bite or pet-related injury case are well-known. In terms of the dog's information, it is almost always necessary to obtain veterinarian records, animal control records, police reports, paramedic records, names of any trainers and or groomers, and names of independent witnesses that are familiar with the dog. Other related documents that may prove helpful are American Kennel Club (AKC) registration certificates, breeding documents if the dog was imported as a puppy or as a trained dog, and diplomas from any training schools.

Mistake #5: Depending on Documents Alone

Receipt of a veterinarian's records does not insure that you have all the necessary information. These days, many veterinary clinics respond to subpoenas for records with digital files or computer printouts. As most veterinarians still write out initial reports, it is important to get the handwritten notes and the computerized printout if even to help decipher the doctor's handwriting. In more than a few cases, records contained the words “reactive” or “tried to bite” written in the top corner that were not transferred to the computerized version. Additionally, it is always ideal to talk to the veterinarian, as he or she is a great source and may possess information that was not included on the charts.

Mistake #6: Not Properly Evaluating Wounds and Photos

If a plaintiff claims that a rottweiler bit his or her arm and held the arm in its mouth for over two minutes while knocking the plaintiff down and shaking its head, the wounds are considered direct physical evidence of the attack. An expert who is court-qualified in wound evaluation can give strong opinions based on photos of the wounds as well as specific information that supports the plaintiff's version. Victims of dog attacks are often unclear about every detail of the incident, though their wounds can tell a complete story in a way that is hard to challenge. If there is too much disparity between the plaintiff's version of the story and his or her actual wounds, then it can lead to a serious credibility issue. An example of this is a case in which the plaintiff—a tenant on the landlords property—filed suit against the landlord after being attacked by the landlord's 125-pound, male, unneutered pit bull/rottweiler mix. The plaintiff suffered from many wounds and the photos were disturbing. The plaintiff, an actor, gave highly emotional testimony about how he thought the dog would kill him and how the dog bit down and held each arm for minutes at a time while the plaintiff struggled trying to escape. He described the dog grabbing and tearing at his flesh.

When the photos of the wounds were examined by an expert, it was determined that the plaintiff's wounds did not support his story. There were puncture wounds but none that suggested that the dog ever “clamped down” or tore flesh. In fact, one area where the plaintiff described such an attack had no puncture wounds at all, just scratches and bruising. There was also no sign of ecchymosis, the dark bruising that appears when minor blood vessels break around a wound caused by the pressure of a bite.

Originally, the plaintiff asked for more than $1 million dollars. Just before trial, the defense offered $300,000.00. In the end, the jury did not buy the plaintiff's story, assigned him a large percentage of comparative fault, and awarded him $19,000.00.

Mistake #7: Not Consulting an Expert

It is vital to know as much about a case as possible even before accepting it. Retaining an expert can be expensive, especially if a case goes all the way through deposition and trial. Most, if not all, experts offer a free initial consultation. An attorney can give a very general set of facts and pick at the expert's brain. As no proprietary information is being exchanged, there is no risk to either party.

If the expert is worth his or her salt, it is highly likely that the case will benefit from this call. Either the expert will offer initial responses that support what the defense's case, or the expert will bring up potential weaknesses, not previously given much notice, that need to be addressed in a timely manner. Either way, the claims professional will have more information and perhaps new insights that he or she did not have before.

If retaining an expert is necessary, then it is a matter of picking the right one. A 5-10 minute phone call can be very valuable in determining if an expert is worth the expense and making the right decision. There are only a handful of competent, court-qualified experts in this field and the closest one may be in another state. However, if he or she is the right expert for your case, costs can be reduced if the expert performs necessary interviews on the telephone and even completes his or her deposition electronically, eliminating the need for travel unless the matter goes to trial. If travel is necessary, arrange for the expert to complete all review during the flight so the cost of travel also includes the cost of review for trial. Depending on the number of documents involved, this could save a good portion of the cost. Mistake #8: Picking the Wrong Expert

Picking the right expert can make your case, while picking the wrong expert can destroy it. Experienced, court-qualified canine behavior experts are few and far between. It is imperative that a thorough examination of the expert's qualifications is performed. For example, an expert who holds a doctorate in animal behavior sounds great on paper, but is not ideal if the animals that he or she studied were not dogs and were housed in a laboratory rather than in an open environment with humans.

Veterinarians who have not received special training in the behavior of companion animals can also be problematic, especially if their experience is only in veterinary clinics and the incident happened elsewhere. People whose professions deal with animals can be extremely knowledgeable, though they may not have the personality or experience to handle attacks on their professionalism and credibility in a courtroom.

The right expert should have many years of experience with a solid background specific to dogs, dog training, and dog behavior. If he or she has testified in a similar case or one involving the same breed such as a pit bull, it is important to make sure he or she has not testified in a conflicting manner in another case. It is good to directly ask this question, as it can be quite upsetting when the opposing side impeaches your expert with their own testimony.

An expert who changes their testimony based on which side of the case he or she is representing will think twice before answering this question dishonestly, but may easily offer the opinion an attorney wants to hear and let it go at that if he or she is not asked directly. An expert who has been around for a while should have solid impeachment materials in regards to other experts in case one of them is chosen by the opposition. Has he or she been qualified in every court he or she has agreed to appear in? If not, why? If attorney references are offered make sure that he or she has testified either at trial, mediation, or arbitration for that attorney. A great question to ask prospective experts is for the names of two attorneys: one who he or she has testified for and one who has cross examined him or her. That should give a very good sense of whether the expert is right for you.

Your expert should also have a great deal of experience in both the investigation and litigation of animal-related cases. Knowledge is power and you want to make sure you have all that you need to fully support your case. It is also important that your expert is court qualified in wound evaluation. This will be essential, especially if your expert's opinions regarding your clients' wounds are challenged.

The Reality of Litigation

In many cases, the only witness that will tell the whole truth is the dog. Dogs are truly independent witnesses in the sense that they have no desire to control the outcome and no ability or desire to change their behavior because they are being evaluated.

In a well-planned and well-executed evaluation, an aggressive dog will almost always act aggressively and a friendly dog will almost always act friendly. Taking advantage of each and every source of information is the most effective way of defending your case.

Ron Berman is a canine and feline behavior expert specializing in the litigation of dog bites and pet-related injuries. He may be reached at www.dogbite-expert.com.