The Nature of Evidence: It Wants To Disappear
In a perfect world, you have all the time you need to conduct your defense investigation. Bacteria won’t devour the rubber skid marks left on the roadway. Rain won’t wash away debris and smooth out shoulders of roads. Witnesses will camp out near the scene to await being interviewed and they won’t forget any of the details. Nearby merchant security video (with fully charged batteries) will be preserved and catalogued in orderly fashion for ease of review and analysis. Tables, chairs, and greasy steps will remain as they were. Design documents or contracts won’t be forever lost in the proverbial quagmire of obscurity. George Orwell’s Big Brother would solve all your investigative needs. But alas, the world is not perfect.
When the protection of assets is threatened by an arguable liability, a timely, quality investigation is the first and foremost tool for the defense. Formidable defense counsel can argue with surgical precision if they have intelligently supported original facts.
Of course, any alleged matter of fact that is submitted at trial can be established or disproved, but contextual foreknowledge gives you the advantage. When investigators understand the best evidence rule, how to establish fact that bars false testimony by estoppel and how to carefully avoid fruit of the poisonous tree rules, the defense can rest easy.
The defense will lay awake at night if investigators are diverted by hearsay leads, parol evidence miscues, and confuse the differences between res ipsa loquitur, res gestae, and the gestation period for elephants. Jurisprudence can be brutal.
You Could “Murder them with Science”
There is a place for High Tech tools in accident scene investigation. Photogrammetry uses images to measure distance and create detailed maps. These 3D laser scanners map out everything in an entire area with millimeter accuracy. When mounted to drones, they’ll provide aerial or bird’s eye views of an accident scene. This has immeasurable value in setting the stage for easy comprehension of how or the why of causational events.
There is also LIDAR technology. This is a remote sensing method that uses light in the form of a pulsed laser to measure ranges of distance. Lidar drones are preferred when space is limited. Not minimizing the value of high tech, there is always a place for deliberate, focused, human, investigative intervention.
Evidence Gathering is an Art
Evidence gathering is the first priority following a loss. The immediate measured gathering of evidence, documents, and testimony is paramount to a strong defense or a negotiable resolution. What you want are those dogged investigators who carefully examine every key detail and use their intelligence and intuition to ask the right questions (the questions that many are afraid to ask or are not invested enough in the process to think to ask). When the claim requires specific knowledge, it’s good to have an investigator on your team who has that specific knowledge as well as the focus and determination to ask the crucial questions and find the crucial evidence.
There is a point in evidence gathering when some “body” has to go knock on someone’s door to find a witness. Some “body” has to scour a neighborhood for video surveillance of a crash, a fall or a shooting. Some “body” has to go “eyeball” a scene to find clues that would otherwise have been missed. That is when great investigators make the difference; when you get the investigation you wish you had; the investigation you deserve.
This article originally appeared in the Complex Claims & Litigation Showcase section of the January/February 2023 Claims Magazine.