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On the Scene
What paralegals should know about documenting accidents, crime scenes and interviewing witnesses.
By Neal R. Bevans
November/December 2004 Issue

It was a hot August day, and Charles Chumley was driving home. His wife, Julia, was in the seat next to him as they came up to the last intersection before turning into their driveway. It was a train crossing, and Charles had crossed this track a thousand times before. Just as he started across, he heard the horrifying blare of the train whistle and then the locomotive struck the driver’s side of his car full force. Charles was knocked unconscious. When he woke up three months later, his wife was dead, huge portions of his memory were gone and his body was broken. He faced a long road of rehabilitation, pain medication and surgery. Charles wanted to know what happened on the day that changed his life forever. And he wanted to sue.

Where do you, as the paralegal in this case, come into the picture? Before you worry about creating a client file, scheduling the case for follow-up meetings and setting depositions, you should think about the accident scene. The biggest mistake law firms make, on both sides of a civil case, is they don’t document the scene as soon as possible. They wait. Months go by, things change, and suddenly neither side can recreate the most important aspect of the case: what actually happened.

The duty for recording this information often falls to you, as the paralegal, by default. The attorney might not have the time to go to the scene right away, and in some instances, the attorney should not be the one to actually do the documentation. For example, if the attorney does go to the scene and learns something about the case, he or she can’t testify about it. Attorneys can’t be both witnesses and advocates in the same case. This is the same reason an attorney should not interview witnesses. If he or she gives a statement and then later contradicts it, the attorney can’t take the stand and dispute it.

Before you trudge out to the scene of a three-month-old car wreck, you need to know the basic skills of how to gather evidence.

Going to the Scene
Where the event happened often is just as important as what happened. This is as true for civil cases as it is for criminal cases. In personal injury cases, for example, the topography often plays a major role in the accident. Do bushes or trees obscure street signs? Was the traffic particularly heavy that day? Was it raining? Were the traffic lights working properly?

Paralegal Private Eye
Although private detectives can do a great job of locating witnesses, taking photographs and interviewing witnesses, they might not enter the picture for months, even years, after the event. Attorneys often hesitate to involve private investigators in cases because they never know which case will settle in two weeks and which ones will last two years. Also, attorneys know 90 percent of their cases will settle before trial and are willing to gamble on not using a private investigator primarily because of the added expense. Attorneys often figure they can play catch up later with the 10 percent of their cases that actually do go to trial.

It’s extremely difficult to put the pieces back together when so much time has passed, said David Sigmon, a licensed private detective, based in Charlotte, N.C. Sigmon often is brought into personal injury cases months after the accident. “A road could be paved over by the time I get to it. The skid marks are gone. Sometimes they have widened the road and changed the whole scene.”

By the time the firm decides to bring in a private detective, it could be too late. But you can go to the scene within days of the initial client meeting. Your photographs, videos and witness contacts could be the difference between losing a case and being awarded a big settlement.

Deborah Reuscher is a paralegal investigator for the Missouri Public Defender in Kansas City, Mo. “We work on a case from the beginning, doing the pre-work for the trial and then help out through the trial. We touch on all phases of a case,” she said.

Her work involves going to the crime scenes, taking photos, video and interviewing witnesses. According to Reuscher, investigation is all about people. “To be a good investigator, bottom line, you need good people skills,” she said. “You really have to know how to read people. You have to know what kind of situations to walk into [alone] and when to take a buddy with you.”

Your Investigative Toolkit
Before you can carry out some basic investigative work, you need the right tools to help you.

Tape Recorder. Always carry a tape recorder with you, even when you don’t plan on talking to any witnesses. You would be surprised to learn how many times a little trip to the accident scene for a couple of photos will turn up additional witnesses with whom no one has spoken to yet.

Sigmon said he once drove out to the scene of a traffic accident to get some basic pictures and found a witness who had seen the whole thing. “No one had spoken to him,” Sigmon said. “The police were saying the lady who got killed was at fault. This witness, who had no reason to lie, said the other driver was at fault.” That case turned into a $1.1 million settlement for the woman’s family.

Not all witnesses like to be recorded, and you should not record them without their permission. However, tape recorders can be used for more than just interviewing witnesses. For example, when you go to the scene, you might not have the time to write down your impressions. Instead, it might be handy to dictate what you see to your tape recorder and take the time to transcribe it later.

Still Camera. Jane Huffman has been a paralegal at the firm of Crowe & Davis in Conover, N.C., for two years. She routinely goes to accident scenes to take photographs. “The attorney I work with likes still shots,” she said. “You get more detail in them.”

Huffman said she always takes a lot of photographs. “You are not only taking photographs from corner to corner, you also are trying to get a sense of the traffic patterns.” She said she routinely takes photographs of the basic features of the accident scene, as well as the number of cars at a given spot, and in parking lots and at traffic lights. “I try to get the traffic from all directions because it’s always an issue in the case.”

Reuscher agreed paralegals should take a lot of photographs. “When you are taking photographs, you can never shoot enough. Too much is better. You will see me snap 50 pictures more than we need, but you can’t go back and recreate, so it’s always better to take too many,” she said.

Although 35 mm cameras still will give you great shots, many paralegals and private investigators now use digital cameras to record the scene. By using a digital camera, you have instant access to the photo and can determine if it needs to be retaken. You also can import the digital images directly into documents and reports, which is simple and efficient.

Video Recorder. Videotaping a scene can be a huge help to a case, but many people have developed bad video habits. Avoid the following bad habits:

  1. When you take a video camera to an accident scene, avoid the temptation to whip the camera around to record all the important details and then leave. Neal Pruitt, an independent video producer in Atlanta, calls this action spraying. “You see it all the time in amateur videos,” he said. Take the time to separate your shots like in still photography. Each shot should only be enough to show the viewer what he or she needs to see and then move on. “Start with a wide shot of the area. This is called an establishing shot. Let the camera record it for about 10 or 15 seconds. Then stop recording. Move to another angle and show closeups of important evidence at the scene. When you start recording, make sure you have something close up in the new shot that also was in the establishing shot.”
  2. Keep your finger off the zoom button. “People love to zoom,” Pruitt said. “Don’t do it. Start with a wide shot. Stop recording, and then move closer and then hit record again.” In the end, the finished product will look much better.
  3. Your video should do the talking for you. Avoid the temptation to speak into the camera’s microphone as you film an accident. Such comments could have a negative impact on the case.

Hammer and Nails. Even a hammer and nails can come in handy in your toolkit. Sigmon has an innovative use for the low-tech tools. “Hammer a ten penny nail at the beginning of a skid mark, and put the other one at the end of the skid mark. Even if they pave over the road later, you can use a metal detector to find your skid marks,” he said.

A hammer also is a useful tool for brushing away debris and other items you don’t necessarily want to put your hands in.

Pen and Paper. Rounding out your investigative toolbox are some of the more obvious items, such as pen and paper, used for notes and sketches.

Although you should capture the accident scene in still photos and video, it also might be beneficial to draw a diagram of the scene. A diagram gives you a different perspective on the scene and you want as many different perspectives as possible. Be sure to draw your diagram while you still are at the scene, but don’t worry about drawing it to scale. It’s important to capture important features, especially landmarks already on film or videotape. For example, if you have photos taken from different angles of the intersection where the train struck Charles Chumley’s car, the diagram can be used with the photos to give viewers a better reference point and an overall understanding of the scene layout. (See the example diagram on Page 68.)

Measuring Instruments. A 100-foot tape measure comes in handy, and a 12-inch ruler can be used to show scale in close-up photographs. For example, if you want to show the size and indentation of a gouge in the roadway or the size of bloodstains on the front of the car, the ruler will do the trick. By placing a ruler in the picture, you give the viewer a frame of reference and necessary perspective.

Finally, you always need extra film, tapes, batteries and chargers in your toolkit. Remember Murphy’s law of recording equipment: if something can go wrong, it will, and usually right when you are about to get something that will win the case.

Dealing With Witnesses
While basic investigative techniques for recording the details of the scene are important, another important job for the paralegal investigating a scene is to find witnesses. Bickel Lund, a private investigator and owner of Peace of Mind Investigations in Eudora, Kan., said she tries to get a copy of the police report before she meets with witnesses, not only to locate them, but also so she has the background on what each individual witness saw and said.

Reuscher agreed it’s important to do your homework before you go out looking for witnesses. “You don’t go into the field without being prepared,” she said. “You go through the discovery and make sure you know who all the players in the case are.”

Once you have the police report, the more difficult part often is getting witnesses to tell you their stories. According to Huffman, the best tactic is to be friendly and honest. “Don’t be overly aggressive,” she said. “Try to avoid being ‘all business.’ You always should be approachable and nice.”

Reuscher said you must have good people skills and be able to communicate with people with varied backgrounds. “When I talk to witnesses, I treat folks the same, but I might talk to them differently,” she said. “You have to be versatile in your personal skills.”

After you find a witness, you must record his or her version of the facts on paper as soon as possible. Lund said she often uses a tape recorder, but sometimes witnesses freeze up when a tape recorder comes out. In that type of situation, Lund said she takes notes instead. “During the initial interview, I like to get a good read on the person, develop a rapport,” she said.

Lund said her notes include not only what the person said, but other information about how reliable he or she appears to be and potential follow-up issues, such as criminal history and corroboration of the witness’ statement. Keep in mind, you can’t always believe everything a witness says. Witnesses often shade facts and sometimes deliberately lie about critical information.

In some instances, witnesses might refuse to speak with you. That is when you should turn to the police officers at the scene. Police officers fall into a special category of witnesses. Paralegals speak with law enforcement officers all the time and it’s important to know how to deal with them. “Honesty is the best approach with police officers,” Reuscher said. “It often helps to build a rapport.”

Huffman said she often finds police officers are easy to talk to. “The attorney I work for has a good reputation in the community and that helps,” she said. “However, police officers get turned off if you are too aggressive with your questions.”

One of the best approaches to use with police officers is the world-weary, “I’ve been lied to by everyone” approach. Police officers are used to being lied to almost everyday. When you speak with a police officer, try this: “My guy is saying X. It’s probably not the truth. What have you got?” This lets the officer know you have seen the real world. Unfortunately, a lot of clients really do lie to you, so it isn’t far off the mark. What you should absolutely not do is to come across as if you naively believe everything a witness says.

Protecting Your Evidence
When you do get photographs, videotape and witness statements, you must save them for future use. Put them in a clearly marked box in the firm’s basement, or in a storage unit that belongs to the office. Never store it in a box in your office. Somehow, when you need it, the box mysteriously will disappear. Worse, the cleaning crew might think it’s trash and throw it out for you. Of course you should store all of this information in the case file, but you also might want to consider making back-up copies of everything. You can never be too careful with evidence.

When you want to preserve evidence, take a cue from the TV show “CSI.” The reason they store evidence in plastic bags is to keep people from messing with it. Plastic bags are see-through, so you don’t have to keep taking your evidence out of the bag to see what it is. A few other good tips from the show are: label the bag with who collected it, when it was collected and where it was collected from. Two years from now, when you need it, you will be glad that information is there.

It’s just as important to remind clients to keep and preserve evidence they might have in their possession until they can turn it over to you. If they don’t, they might not have a case. For example, a woman was getting ready to feed her cat, and when she picked up a can of cat food, it exploded, causing severe injuries. After numerous trips to the doctor, she sought out a lawyer to sue the cat food company. The attorney was eager to take on the case, seeing the real possibility of a huge settlement against a multinational corporation. “So, where is the can?” the attorney asked. The woman looked at him blankly. “The can? Oh, I threw that away a long time ago,” she said.

Because she didn’t preserve the only physical evidence, there was no huge settlement or lawsuit. The paralegal involved in that case could have interceded early in the process and reminded the client the importance of keeping the can.

The Winning Touch
Learning basic investigative techniques will make you better at your job and increase your marketability to other firms. It’s also a lot of fun. Your next accident photo or witness interview might be the factor that wins the case.

Investigation Web Sites

  • Security Services of America Inc.: www.forprotection.com
  • Peace of Mind Investigators: www.findinvestigator.com
  • Accident scene photos: www.sunposition.com/samples/accscene.html
  • 25 things to note about accident scenes: http://wa.essortment.com/trafficaccident_rhzr.htm
  • Accident scene virtual tour: www.csus.edu/asi/saferides/tour.htm
  • Interviewing techniques: www.tali.org/texasinv/intervie.htm
  • Identifying and interviewing witnesses: www.safetyline.wa.gov.au/institute/level1/course11/lecture104/index.asp
  • Psychological aspects to interviewing witnesses: www.cogsci.ecs.soton.ac.uk/cgi/psyc/newpsy?7.06
  • Basic interviewing techniques: www.bowmac.com/basic_int.htm

Neal R. Bevans is a paralegal instructor at Western Piedmont Community College in North Carolina. He has been an attorney since 1988. A former Assistant District Attorney and private attorney, his cases included a televised trial on Court TV. His textbook, "Criminal Law and Procedure for the Paralegal" (West) was published in August 2002.

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