Evidence Handling

Getting Your Hands on the Evidence, By Ronald S. Beitman, American Law Institute-American Bar Association Continuing Professional Education, Philadelphia, PA 2005. 223 pages, $89.00

Reviewed by Heidi Boghosian for The Federal Lawyer

Swabs, electrostatic dust print lifters, and casting kits-along with a cadre of cadavers-are the new attention gabbers on the slick crime scene investigation dramas on television today. Because of recent technological advances in forensics, audiences for these shows demand a more sophisticated lineup of techniques than they did in the days of Perry Mason and his sidekick, investigator Paul Drake. —But the tricks of the old-fashioned gumshoe still remain the hallmark of good legal practice when it comes to obtaining and preserving evidence. Ronald S. Beitman’s Getting Your Hands on the Evidence is a gem of a handbook; the “do’s and don’ts” it presents for dealing with physical evidence are sometimes surprisingly simple but sometimes are counterintuitive. Obtaining and preserving physical evidence demands a nitty-gritty protocol, and this book delivers a protocol for being the first to actually get the evidence, to preserving the chain of custody, to avoiding inadvertent destruction of the evidence by the office cleaning crew. Beitman imparts hands-on, street smarts for lawyers who aren’t trained in the real-life skills so necessary for prevailing in the courtroom.

Beitman explains that it is essential to have a plan of action in place before a client calls. This means assembling and educating a team that includes an investigator, experts such as an engineer to inspect motor vehicles and other products, and temporary custodians of the evidence. The lawyer in charge should be the team leader and prepared to get down and dirty--to literally, as the books’ title says, get his or her hands on the evidence. The process makes being a lawyer sound like fun:

You might think that wading through mud and tall grass at accident scenes and broken glass and oil-soaked ground at salvage yards dressed in dungarees and track shoes isn’t the reason you went to law school. However, there simply is no better preparation than having used your own senses at a crash scene and personally viewed the physical evidence at a salvage yard. Witnesses and parties will be surprised by the specificity of the questions you pose based upon your personal observations of the evidence.

Time is of the essence when examining evidence. Beitman says that, if a temporary restraining order is requested and granted, it is important to schedule the appointment to inspect the evidence as soon as possible after obtaining the restraining order. He instructs readers that they should accompany their expert on inspections of evidence in a nonparty’s custody in order to minimize the chances of prejudicing their case: “Never put your expert in the position of having to communicate wit the employer, the manufacturer’s counsel, and his expert in your absence.” By not attending the inspection, the lawyer risks having his or her expert speaking directly with the other side’s lawyer or manufacturer. This, Beitman cautions, can greatly prejudice the case, and the lawyer might never even know that the conversation took place. Once in possession of the product that caused the client’s injury the lawyer has the option to ask the expert to conduct an ex parte inspection if the defect is not obvious. In ex parte inspections, precautions can be taken to counter claims that the attorney spoiled the evidence or denied the manufacturer the chance to make the same inspection. As a safeguard, in case the evidence later should become unavailable for inspection by the opponent, lawyers should document ex parte inspections with a videotape that shows elapsed time. Manufacturers who were not present at the inspection may allege that the ex parte inspection altered the evidence in order to prejudice the defense. If they do, then case law calls for them to present articulate and concrete arguments about what an earlier inspection might have yielded that would aid in establishing causation.

Beitman is an expert in dramshop liability and is the editor of The Dram Shop and Alcohol Reporter. He knows well that creativity at the crime scene can be pivotal to success in court. He explains that when visiting a bar or restaurant in a dramshop case, for example, lawyers should go on the same night of the week and during the same time frame that the drinking driver was there in order to learn about the establishment and to obtain evidence. Clues to look for are the size of the glassware and whether the menu advertises the potency of the drinks that are served. Some venues allow customers to purchase glassware for promotional purposes and one can usually take a menu. Beitman writes that his toxicologist and investigator go to the bar as a team and order several of the kinds of drinks the driver had. The toxicologist pours them into sterilized containers and tests the amount of alcohol at his lab. Such evidence can rebut a bartender’s testimony that he or she puts only one ounce of alcohol in each drink if the sample shows that the alcohol level is higher. Creativity also comes into play when trying to locate amateur videotapes made by bystanders. Beitman writes that he has offered rewards and advertised for bystanders’ footage. But he has obtained more success from asking the investigator to talk to neighborhood witnesses who might know of other neighbors at the scene with recording devices. Beitman advises lawyers to contact the newsrooms of local television stations to find out about stringers who sell videotapes to the press and to attorneys. They listen to police and fire scanners and are sometimes the first to arrive at the scene.

Although Getting Your Hands on the Evidence is aimed primarily at plaintiffs’ lawyers, it is strengthened by inclusion of a chapter on the defense’s perspective, written by Daniel P. Gibson, Scott R. Behman, and Christopher P. Cifra. Getting a glimpse of defense tactics, which are similar to those Beitman advocates, adds a sense of urgency to the need to approach the gathering of evidence strategically. Like Beitman’s instructions to plaintiffs’ lawyers, the defense plan covers timing and calls for managing the media and the experts (including accident reconstructionists), while counsel serves as team leader in accident investigations.

Beitman coaxes the reader through the processes of speaking to clients, family members, the press, employers, and witnesses in order to obtain and preserve evidence in the best way possible. Lawyers must fill multiple roles--investigator, team leader, psychologist--in their quest for the all-important evidence, just as old-fashioned detectives did. The book’s appendices contains useful sample motions, complaints, affidavits, restraining orders, and other documents essential to the process of preserving physical evidence.

All in all, Getting Your Hands on the Evidence is a wonderfully complete and practical resource for personal injury lawyers or for any attorneys who want to add to the set of skills—and maybe even have a bit of fun while they’re at it.