Here’s the scenario: lawyer gets called by potential client about a crash that might involve a defective tire or vehicle. There is evidence at the scene of the crash that might be critical for the case and needs to be preserved. The vehicles involved in the crash are also evidence and need to be preserved too.
I’ve learned the hard way that the process of evidence preservation has many pitfalls for the unwary. Based on lessons we’ve learned over the years, our firm developed a list that we use for this process. Some of this stuff is obvious and very basic, but here are the basics:
1. Collect Initial Information. Gather all initial information from the client or referrring attorney including crash reports, insurance claims forms, or business cards of witnesses. If your client’s carrier has already started an investigation get everything from them that they are willing to share.
2. Check Statutes of Limitations and Repose. Know your state’s relevant statutes of limitations and repose. Determine dates for both statutes that apply and calendar any upcoming deadlines. Statutes of repose are often difficult to document, we use CARFAXto give us a preliminary idea about when an older care was initially sold or titled.
3. Locate the Vehicles. Use the crash report or other initial information to track down all vehicles involved in the crash. Initially vehicles will be at a tow yard, salvage facility or police impound. All vehicles in a crash are potential evidence, not just the vehicle in which your client was hurt or killed.
4. Send DND (Do Not Destroy) Letters. Send letters to all persons or entities who have control or possession of the crash vehicles. Send by fax or email. This will typically include insurance companies, tow yards, salvage facilities or law enforcement. DND letters should advise that the vehicle is evidence in a potential defective product case and needs to be preserved. Sample DND letters we use can be found here.
5. Verify Preservation By Phone. Call the entities who have possession and control of the crash vehicles and verify they will preserve the vehicle. Don’t just rely on the DND letter.
6. Locate the Scene. Seems simple but sometimes it’s not. There have been more than one crash in the area and the location of the subject crash isn’t always obvious. Again, having learned the hard way, if in doubt contact law enforcement and ask them to assist your investigator with verification of the scene.
7. Survey the Scene. Don’t cheap out and try to do this yourself. Hire an experienced survey team or accident reconstruction consultant who understands the importance of not only locating scene evidence but documenting the location of where pieces of evidence are found. In one case a referring attorney came to me beaming that he had found the missing piece of tire tread from a tire that failed. Great. Unfortunately, the guy had gone to the scene himself and personally picked it up — without documenting WHERE he picked it up first. Ouch. Hated telling him he had unwittingly made himself a fact witness.
8. Document the Scene. Again, have someone do this for you. Have your team find everything at the scene that might be related to the evidence: yaw marks, gouges, glass pools, debris fields and anything else. Put a marker — like a flag or an index card — next to every piece of evidence. Put a number on the flag or card. Make a written list of everything.
9. Mark and Photograph the Evidence. Take lots of pictures. They’re cheap. Have your team (again, don’t do this yourself) take pictures of every piece of evidence before before anything is moved. Make sure the photos show the flags or card markers and numbers. The photos and markers can then be put together with the survey data to make a scene map.
10. Keep an Evidence Log. After marking and photographing each piece of evidence, create a log with the date and name of the person taking custody.
11. Lock it Up. Make arrangements to take possession of the vehicle. You’ll usually have to negotiate and pay fair salvage value to an insurance company who has paid for the vehicle under a property damage policy. Vehicles should be moved carefully so they’re not further destroyed. Keep vehicles and evidence in a covered and locked storage facility. Again, don’t cheap out here… pay for a storage facility and don’t go with an unsecured facility you don’t control.
12. Maintain Chain of Custody. Document any outside experts or other persons not with your side who inspect the evidence. Don’t make the mistake of “sharing” custody of the evidence with the defendants. Huge mistake. This makes it impossible to prove chain of custody at trial.
When it comes to preserving evidence and proving chain of custody remember it’s your burden — not the defendant’s. Best practices are to implement basic procedures to follow on intake to make sure your client’s evidence and case is protected.