You can't file a dram shop case without a defendant.
In most personal injury cases, like a car accident case or a medical malpractice case, it's not at all mysterious who the defendant is. But in Texas liquor liability cases -- wherein the victims of a drunken driving accident can sue the bar or restaurant who over-served the drunken driver -- identifying who the bar is can be a daunting task.
Since you can't just file a lawsuit and hope the bar you're suing comes forward and turns themselves in, this can be a difficult problem for victims of negligent alcohol service. Further, bars will go out of their way to hide the fact that the patron who they over-served (who went out and injured someone) was drinking at their bar. They aren't going to just come out and admit that they failed to follow Texas Dram Shop Act guidelines.
Quite simply, without the bar, there is no one to file suit against. If you can't file suit, there is really no way to make a case and recover compensation for the victims. However, this does not stop our attorneys, it merely presents an obstacle. But in most cases, it's an obstacle that can be overcome. There are a variety of legal and investigative tools available to an experienced dram shop attorney to identify which bar over-served someone.
In this article, one of Texas' leading dram shop attorneys, Michael Grossman, explains how to track down the correct bar in a dram shop case.
If you'd like to know more about Texas Dram Shop Law, make sure you check out our Easy-To-Follow Dram Shop Guide as well.
Questions answered on this page:
- How does experienced dram shop attorney track down the bar who served an obviously intoxicated person?
- What challenges are there when searching for the bar who over-served the driver?
- What legal steps can we take before the suit to identify the establishment that served a drunk person?
WhWhy is it sometimes challenging to find the bar in a dram shop case?
After some drunk driving accidents, the driver will admit to a police officer that he was drinking at XYZ bar located in Main Street. That's obviously very advantageous for our client, assuming the intoxicated driver was being honest. But here's why it's usually a lot more difficult than that:
- It is not uncommon for a drunk driver to die in the accident. Accidents involving thoroughly intoxicated people can kill the drunk drivers as well as others. Once that happens, obviously the deceased won't be able to tell us.
- Alcohol greatly impacts memory. Even when the driver doesn't pass away, we've seen plenty of cases where the driver simply cannot remember where he or she was drinking. While many might question the veracity of the alleged lack of memory, there is plenty of science to back up the claim that truly excessive amounts of alcohol lead to memory loss. In many dram shop cases the intoxicated driver was served to the point that they were black-out drunk, meaning they literally have no memory of hours of their lives.
- The 5th Amendment. Many drunk drivers are charged with intoxication assault or intoxicated manslaughter. While the criminal charges are pending, the driver has the right to keep silent. Unless he's incredibly contrite and wants to tell you where he was drinking or he has a terrible defense lawyer, he's probably not going to tell you where he was drinking.
- The drivers sometimes lie. We've seen cases over the years where drunk drivers are trying to protect a buddy who works at the bar they were drinking at, or even that they were drinking at an alcohol establishment where they work and don't want to "rat out" their boss and coworkers. In those cases, they'll claim they were drinking at home or at some other bar.
The fact of the matter is that after a drunk driving accident, there are a lot of different problems that make tracking down the bar that over-served someone a difficult proposition. For those without an experienced dram shop attorney, the task of finding the offending bar could be nearly impossible in many instances.
How do we find the bar responsible for improper service of alcohol?
Many lawyers simply give up when they can't immediately find a bar, or refuse to take Texas dram shop cases in the first place because of the difficulties of tracking down bars. Not us. We've learned many techniques over the years to correctly identify where the person who caused the accident was consuming alcohol prior to hurting you or taking away your family member. These techniques include:
- Informally talking to witnesses. In police reports, folks who were with the drinker in the car might be listed. We track them down and call them. Occasionally, these people will open up to us and admit where they were all drinking the night of the incident. Our approach is never to scare people or make them feel intimidated when a lawyer calls, but just to let them know that they're not in trouble, we just need some info. In our experience, this soft touch is far more persuasive than if our firm were to act like a lot of other lawyers and go in guns blazing threatening to ruin someone's life. It also helps in these cases that we have no intention of pursuing anyone who wasn't the bar or the driver. It just doesn't make any sense to do so, since passengers of drunk drivers are only liable if they sold the drunk driver their last drink.
- Rule 202 depositions. Under the Texas Rule of Civil Procedure, we can request a court to grant us a "pre-suit deposition." Then, we're allowed to subpoena the people who were with the drinker but who won't talk to us and place them under oath. Then, we ask where they were all drinking before the accident and they have to answer. This may sound like what lawyers do in any other case, but the key distinction with Rule 202 depositions is that they take place before a lawsuit is filed. Without a alcohol provider to sue, there is no case. Recognizing that it is not fair to allow otherwise guilty bars to escape the consequences of their actions, just because folks won't say which bar was at fault, Rule 202 provides a tool that helps locate a defendant.
- Social media research. We always look into whether someone had posted on Facebook, Twitter, Instagram, or other social media about where they were drinking. We've found Twitter especially useful because it's usually public. It shouldn't be too surprising that many people when drinking love to use social media to post photos of where they were and who they were with. Even if they don't specifically name the bar, often there are enough clues that our investigators can figure out which bar is in the pictures with a reasonable degree of certainty.
- Financial Records. One aspect of modern society that makes tracking down bars much easier is that the majority of the time people aren't paying with cash. This means that in many cases there is a bank record that shows who an intoxicated driver purchased their alcohol from. Since the intoxicated driver is also liable for the damages they caused, subpoenaing their credit card records for the night in question quite often identifies which establishment over-served them.
We have also reached out to family members of the driver. This can be awkward, naturally, but a lot of people feel as though justice needs to be done and volunteer where their loved one had been drinking just before the accident occurred. Most people aren't monsters and when they realize that their is another family, suffering just like they are, there is a tendency to want to do what they can to make the situation right.
Most importantly, we always contact the Texas Alcoholic Beverage Commission (TABC)--the state agency in charge of regulating alcohol providers--to see if they've launched their own investigation into the accident. The TABC has tremendous leverage with alcohol providers, because they can fine establishments or revoke their liquor licenses. Additionally, since their mandate is to oversee the safe service and sale of alcohol in Texas, they are just as interested in tracking down those who unlawfully serve the intoxicated as we are. Sometimes, they have access to information we don't have and they'll pass it along once their process is over.
No matter what, Grossman Law Offices uses every avenue to track down bars that over-serve obviously intoxicate patrons. We believe that bars don't get a free pass for the damage they cause in the community just because they can be difficult to find. We feel we owe a duty not just to our clients, but to our community to hold bad actors responsible. We're not anti-alcohol service, we're against unlawful alcohol service, because there is no way you can look the victim of one of these accidents in the eye and see someone who was just in the wrong place at the wrong time. Instead what you see is someone whose life was ended or turned upside down through no fault of their own, while somewhere off in the distance a bar is counting the extra money it made by breaking the law. That is why we put in the effort to hold bars, restaurants, and liquor stores who break the law accountable.
Our Dram Shop attorneys will sniff out the bar responsible for over-service.
At Grossman Law Offices, we've been assisting victims of alcohol-related accidents for over 25 years. If you're not sure if the driver who caused your accident was drinking at a bar, restaurant, or at home, let us find out. Bars aren't eager to volunteer information if they already know that they are at fault. Receipts get lost, camera footage erased, and witnesses are hard to find after the fact, but if you need an advocate who will thoroughly investigate and litigate your case, give us a call today at (855) 326-0000. If we don't win your case, you don't owe us a cent.
Related Articles for Further Reading: