What paralegals should
know about documenting accidents, crime scenes and interviewing
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
Before you trudge out to the scene of a
three-month-old car wreck, you need to know the basic skills of how to
Going to the
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?
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
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.”
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
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:
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
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.
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
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
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.
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
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
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.
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,”
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.
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.:
Peace of Mind Investigators:
Accident scene photos:
25 things to note about accident scenes:
Accident scene virtual tour:
Identifying and interviewing witnesses:
Psychological aspects to interviewing
Basic interviewing techniques: