August 22, 2018

Go to the Scene—Part 2: Go the Extra Mile

By Hon. Mark A. Drummond

In the last issue, I promised to tell the story of how I learned the hard way the value of going to the scene. I was defending an insurance company in a fire loss claim. We had some strong evidence that the husband had torched the house. It was also clear that the wife had nothing to do with it. The couple was estranged. She had lived out of state for quite some time. Under the “innocent co-insured rule,” she could recover her 50 percent.

iStockphoto by Getty Images

The adjuster sent me the investigation with an appraisal, along with an expert’s report. Most of the photos were of the interior of the home, with just one or two pictures of the outside. The adjuster asked me if it was “OK” to cut a check to the wife, and relying on the appraisal, I said, “Sure.” That was a mistake.

A couple months later, I went to the scene with our expert. I was there for causation. I soon realized I should have been assessing damages before we cut a check to the wife.

The house was the only one on the block that had been occupied. The other houses had been abandoned. A train track was within 100 feet of the backyard to all of these houses; there should have been a second appraisal.

My view of this house, while sitting in my overstuffed chair in front of my oversized desk in my comfortable office, was myopic. I needed to go to the scene to get the real story. I needed a broader view.

So, how do we do that? If your case involves a location, go to that location. Try to go to that location around the time the incident occurred, and if it was on a Sunday, go on a Sunday. The scene could be much different on a Sunday at noon than, say, perhaps early evening on a Wednesday. If you can’t get there, go on Google Maps and check out the street view.

If the scene is crucial, how do you get the jury or the judge there? In both criminal and civil cases, you can ask the judge or the jury to view the scene.

Short of an “in-person” view, you can take the judge or the jury to the scene with videos, pictures, or diagrams. I had an attorney the other day in court rearrange my courtroom to illustrate a point. The issue was whether a certain parcel of land was contiguous to a school district. The plaintiff was a schoolteacher in that district who wanted her children to attend in that district. Her house needed to be included within the boundary. The attorney used one of the tables as the outline of the district and then cut a thin piece of cardboard to scale and stretched it almost all the way across the well of the court until it rested underneath a very small toy house that he had set on the jury rail. It was a compelling physical demonstration.

As I have written in past columns, you have the ability, by the phrasing of your questions, to take the jury to the scene. On direct examination, you take them to the scene by framing questions such as these:

  • So, Mr. Jones, as you’re standing at the corner of 12th and Broadway at around six o’clock that Friday evening looking north. Tell us what you’re seeing.
  • Dr. Jones, as you’re standing there in the radiology department looking at the x-ray we have here in front of the jury, what does this x-ray tell you about Mr. Edward’s condition?

Setting the scene may also be crucial in cross-examination. Let’s say you’re taking the deposition of an administrative assistant who says that he received an order over the telephone for parts to be shipped “per our usual agreement.” You claim that he failed to check the specific terms of “the usual agreement.”

He claims he didn’t have an “opportunity” to check the prior agreement. In the deposition have him describe the scene with questions such as these:

  • Describe your office.
  • How many square feet is your office?
  • Where do you keep your files?
  • How far is that file cabinet away from your chair?
  • Is the prior agreement on your computer?
  • Do you have a phone at your desk?

You get the idea.

This will set up a line of questioning at trial when he claims he did not have an “opportunity” to check the prior agreement, with questions such as these:

  • Mr. Smith, let’s go through your office.
  • You keep all agreements in your file cabinet, correct?
  • That file cabinet sits in your office?
  • That file cabinet is within arm’s reach of your desk, true?
  • You also have that agreement on your computer, correct?

Taking the jurors through your questions to the scene makes it much more compelling, much more interesting.

In closing, I’ll never forget the first time I saw Mount Rushmore in person. I had seen pictures of it, but rounding that corner and looking up at it for the first time took my breath away. There simply is no substitute for being there.

 

Hon. Mark A. Drummond is an associate editor for Litigation News.


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