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The Importance of Early Investigation Regarding Witnesses and Evidence

WHO IS THE WITNESS?  WHO IS HE NOT?

Find out what the witness knows but also what he doesn’t know.  Qualifications of a witness are important but equally important are lack or limitation of qualifications. 

In a lay witness, this usually means ascertaining in some detail the witness’s ability to see, hear, smell or perceive the events or facts the testimony will be based upon.  Where was the witness at the time of the occurrence?  Where were the events occurring relative to the witness’s position?  Were there any obstructions or distractions interfering with the witness’s ability to perceive the events clearly and for an adequate time in order to develop a sense of actions, times, speeds and distances?  Does the witness have any biases that would color the perceptions, such as the relationships of claimants or parties?

Witnesses almost always want you to know what they saw and what they believe they know.  But often it is more important to establish those facts that they don’t know.  For example, if they don’t know how much or what the claimant and the defendant had to drink prior to the altercation, or if they didn’t hear the conversation that preceded it, or don’t know if the claimant had waved a knife beforehand, etc., all of that is important in neutralizing him as an adverse witness.

Experts are often more sophisticated and experienced as witnesses and sometimes take on an adversarial role.  So it is all the more important to find out who they are and who they aren’t.

If the expert is, for example, a neuro-radiologist, have him acknowledge that he is not a neurologist, a neurosurgeon, a vascular surgeon, etc.  He is not a treating “clinician” but only a “picture taker”, etc. and also have him explain the scope of his knowledge, training, duties and experience.

If the expert is a geologist, make certain to ask her to acknowledge that she is not a soils engineer and have her define their different roles and limitations.  You may even get her to admit that some other field is better qualified to address the issues in the case.

PRESERVING EVIDENCE

Preserve evidence.  It’s easy to say but not always easy to do, for both practical and economic reasons.  I can understand from the insurance industry’s viewpoint not wanting to undertake a full blown field investigation on every case, no matter how trivial.  But, when I was taking a certification course in accident reconstruction, it was repeatedly pointed out how vital timely site inspection is and just how rapidly the evidence fades from view.

In construction cases, for example, preserving the warning sign or a piece of the drywall claimed to be defective for later analysis and testing can make the difference between winning and losing.

Often photos showing no damage or showing a correct installation, with proper foundation laid, will go far towards persuading a jury that no injury could have resulted as claimed.

Whether it’s an auto case, a products case, a construction site injury, a slip and fall or anything else, try insofar as possible to preserve and protect any evidence of the mechanism of claimed injury.

It is equally important to “preserve” potential witnesses, as their testimony is evidence, too.  It is a perhaps obvious point but unfortunately too often missed, that one should always ask for information about how, where and through whom the witness may be re-contacted in the future.  In addition to the usual name and address information, a witness should be asked for the name of a relative or friend through whom he could be reached in the future, in the event the witness moves.

Donald D. Wilson

dwilson@carnaclaw.com