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What Steps Must Be Taken Before Filing a Dram Shop Lawsuit Against a Texas Bar?

  • Last Updated: March 3rd, 2023
  • By: Mike Grossman
  • Dram Shop

Steps Taken Prior to Filing a Dram Shop Lawsuit Against a Bar

If you or a family member were injured or killed due to a licensed provider's over-service of alcohol, you may have a claim against that provider, in addition to any claims available against the intoxicated person who caused you harm. A case brought against the licensed establishment that over-served such a person is called a dram shop claim.

When dealing with dram shop claims, it is important to have assistance from an experienced attorney because there are pre-litigation steps that need to be completed before your claim is even filed with the court. Our lawyers can walk you through each phase of the pre-litigation period, so that you understand each aspect of your case and the possibility of success at trial.

In this article, we will discuss the first step in the proven litigation strategy used by Grossman Law Offices and how helps to get your case off to a strong start.

Questions answered on this page:

  • What is a pre-litigation investigation?
  • When should I file a pre-litigation insurance claim?
  • Is there an evaluation stage before my claim will go to court?
  • How can attorney help me before my claim going to trial?

The Pre-Litigation Investigation

The first step in any civil litigation strategy is a thorough independent investigation. A thorough investigation must take place in order for you to have a successful dram shop case, because it is the foundation on which your attorney will build your case. For example, the drunk driver and the licensed establishment that over-served them must both be investigated. The importance of this initial investigation cannot be under estimated, because what is discovered at this point goes a long way towards helping us determine whether the case is strong enough to move forward and possibly go to trial.

In conducting the pre-litigation investigation, information about the drunk driver and the bar that served them must be obtained through a formal legal process called discovery. Essentially, this means the drunk driver and the bar must be put on notice regarding their obligation to preserve evidence that will be requested in the case. They will be notified that you are now represented by counsel and a document called a letter of spoliation will be sent as well.

A letter of spoliation is a letter advising the opposing parties that, starting from the date of the notice, there are documents and information that must be preserved and maintained for discovery and evidence in the case. The spoliation notice also demonstrates that the opposing parties had knowledge of the information that needed to be preserved, which means that if that data is destroyed, or becomes unavailable for any reason after the notice has been provided, sanctions can be imposed on them by the judge in the case. This step is necessary to ensure that the party seeking preservation has some recourse if the information is lost or destroyed. The types of documents and evidence that need to be preserved will include credit card or other receipts documenting how many drinks the bar sold to the drunk driver over what span of time, any video surveillance of their actions inside or outside the bar, any information that could shed light on when the drunk driver entered the bar and how long they were served, etc.

Spoliation of evidence notice - dram shop case
This is a sample letter of spoliation.

The police report from the accident will also need to be obtained. The information regarding the timing of the accident, the conditions under which the accident occurred, and any citation information will be considered as well.

It's also important to obtain the drunk driver's driving record. Obtaining a driving record requires more than just the person's name and driver's license number, so additional research must be conducted to get this information.

Research tools that can discover the drunk driver's net worth and expenses will be used along with any information related to their insurance coverage that may be useful for the investigation.

The same investigative techniques will also be performed on the bar. Further interviews with bar employees and patrons of the bar that witnessed the intoxicated person being served will be conducted as well. Calls to the TABC will also be made to determine if there have been any complaints against the bar or if the bar has been cited for any TABC violations in the past.

As you can see, the pre-litigation investigation has a lot of moving parts and actions that must be taken before the case can move forward. The order in which these things need to be done is important and if any of these steps are missed or overlooked, your case could be irreparably harmed. This is why it is so important that you contact us as soon as possible after the events in question, so that we can begin the process of investigating your potential Dram Shop claim as soon as possible. Our attorneys know how to conduct a thorough pre-litigation investigation in Dram Shop claims and we are happy to perform one for you. If nothing else, this will give you and your family the benefit of knowing what actually happened.

Pre-Litigation Insurance Claims

Before a Dram Shop claim can filed with the court, the claims to the insurance companies of the drunk driver and the licensed establishment that served the drunk driver need to be filed first. Filing suit in court before the investigation is conducted and the insurance claims are filed can harm your case. However, even though the insurance claim needs to be filed first, filing that claim is not always simple.

Even if both the drunk driver and the bar have insurance, getting the claims settled properly by both insurance companies is difficult for non-attorneys to accomplish. This is because the insurance companies, knowing that most plaintiffs do not have extensive knowledge of the legal system, will do their best to delay, and even outright deny, claims that should be legitimately paid.

If the claim needs to be filed with the drunk driver's car insurance carrier, the insurance carrier will often say that, because drunk driving is a criminal offense, they do not have to pay. Generally speaking, auto insurance companies will try to deny claims made based on the criminal activity of their insured driver even when that activity involved their insured driver operating the motor vehicle that is covered by the insurance carrier.

These arguments can be overcome, but only when an experienced attorney applies the appropriate case law and pressure. For example, we handled a case where a family brought a claim against a drunk driver's insurance company for the wrongful death of their loved one and they were denied (prior to hiring us). The insurance company claimed that because their insured driver broke the law by driving intoxicated, they did not have to cover the claim.

After this denial by the insurance company, the family contacted our firm, and within 30 days of our involvement, the insurance company paid on the claim and settled with the family. This is only one example of how the involvement of our attorneys changed a negative outcome to a positive outcome for a family dealing with a pre-litigation insurance claim. Just as we helped in their claim, we can help in yours as well.

While dealing with the insurance carrier of the drunk driver is challenging, dealing with the bar's insurance company is even more so. The odds of the bar's insurance carrier honoring your claim without the assistance of an experienced attorney are even more remote than the drunk driver's insurance carrier. Handling the insurance claim with either the drunk driver's carrier or the bar's carrier is a complex undertaking best left to experienced Dram Shop attorneys. The insurance companies will give you the run around, shift blame, and deny your claim, even if they know it should be paid, and they will tell you their insured is responsible for your injuries not them. Dealing with the insurance claims and doing your best to recover physically from your injuries is something you should not be doing alone, but our attorneys can help take on some of that burden on your behalf.

Moving Forward...

To learn more about the next litigation strategy steps taken by the attorneys at Grossman Law Offices for a dram shop case, check out the links below:

Grossman Law Offices Has Experience in Pre-Litigation Investigations

The pre-litigation steps that need to be conducted prior to filing your Dram Shop claim with the court are essentially an investigative period for your case. All of the information and evidence gathered during this period is used to assess the strength of your claim against the drunk driver as well as against the licensed establishment that served the alcohol to the drunk driver when they were obviously intoxicated.

Assessing your case in this manner can help paint a more realistic view of your claim and can help you determine whether settlement is the best option in your case or if moving forward and going to trial will produce the best outcome. If you are trying to handle your Dram Shop case on your own, you will not receive the benefit of this kind of assessment because you may not have been able to gather all the information necessary to make an informed determination. You need an attorney that will not only fight for your rights in court, but also one that will give you an honest assessment of your case and what taking it to trial could mean.

Our dram shop attorneys have the experience as well as the investigative skills and techniques at our disposal to gather the evidence and assess it properly, so that you can make an informed decision on whether to settle your case or take it to trial. Contact us today at (855) 326-0000 to learn more about how we can help you.

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