EP 26: The Physical Investigation Following a Catastrophic Injury Claims

Welcome to the catastrophic comeback podcast with American Injury Lawyer Clark speaks, helping you find hope, purpose and joy after a catastrophic injury.

So now we're going to move away from talking about your electronic investigations and

talk more about your physical investigation, evidence would be a good way. Yeah, physical investigators. Can

you talk to me about that, and it doesn't matter if you start now or six months from now. Now,

if there's going to be a case, if somebody wanted to open a case, it's now when I first got into law enforcement and 1991, it felt like evidence kind of preserved itself for a while. Now it does not just speaking in terms of electronic evidence, if there's a crash, fall at a business, there could possibly be video, what I have found over the last 10 years is that storage ability that these businesses or traffic camps store is shortening and shortening, because they're collecting a lot of data, but nowhere to put it. So I can, I can remember 10 years ago, I might have had six months, I could go back and pull video somewhere. Now we're getting into that 45 days, with some places only store for 45 days, or maybe even less, then there's you already mentioned changing tire tracks, tire, skid marks, things like that. weather effects, that weather washes out away. imperfections in parking, lots, stores, doors, roadways, there's a risk that could be fixed, we need to document that as soon as possible. We want to see that condition, what was that condition at the time of this injury, and we need to document that soon. And those conditions change. They change sometimes sooner than later,

when especially in very serious accidents, where you have insurance companies, insurance investigators, people from corporations who recognize the liability, that rent liability that they have in a certain situation, and they go and they start the process of pulling that video, and then they can't find it later, they start the process of cleaning up job sites where they have been negligent, they start the process. And people I think are surprised to learn that this employer who they may have worked for or with for a long period of time, and they thought they had a really good relationship and maybe the employer came by and visits them or their family in the hospital and just brings them food tells them hey, I'm so sorry, this happened, we're going to take care of you don't worry. And then they're surprised later to learn that while that conversation is going on job sites are being cleaned up and and my experience is it's not necessarily the guy you're talking to that person may genuinely care about you and be a good person and be concerned. It's a whole another team of individuals that you have never heard of never had any contact with that are that are that are responsible for doing these investigations. But they changed. For example, in a in a crime scene, let's go back to your law enforcement days. In a crime scene. When you after something happens, how important is it to to preserve that scene that cite that area, so that that evidence is not changed? Or contaminated or lead to a different and false conclusion? I'll

sum that up in one word immediately. There's no other alternative. But immediately this has to if there's concern an area has events to preserve it's now it's not it's not we don't think about it. We don't have a discussion. We have to preserve this now. And that's from a prediction we and that's maybe not even knowing for sure evidence could be there. It's from a prediction standpoint, is there likely evidence could be in this geographical area this room? Let's Let's secure it right now. There's there's no time to wait on that. It goes away quick. Contamination is a huge problem. When we walk in a building and a street sidewalk, we we leave stuff behind, we pick things up. So evidence goes away. Super quickly. There's just no time to wait.

So yeah, I mean, so my mom lives with me. And so she loves to watch Perry Mason She loves to watch Murder, She Wrote, she loves to watch Matlock and some of those some of those shows and and when you say that it brings to my mind those shows when there's a there's a crime and immediately there's always somebody who doesn't appreciate the the importance of maintaining that scene and they go in and they do something that would really change the way that somebody would analyze this information and lead the people who see who who have to reconstruct what happened and And whose fault it was to an erroneous conclusion. And so I can understand what you mean when you say how important it is to protect that site, preserve that site. And so the way that people can, can do that is to contact their their, you know, if you know, their law firm or their lawyers and making sure their lawyers have an adequate investigation component of their firm to be able to go and find Find these find that preserve that scene, collect that evidence and, and preserve the evidence that will support their claims.

Yeah, time sensitivity is extremely important. For example, if one of our team members sends me sends me a case for an investigation, one of the first things I do is I look at the data loss instantaneously, when I'm given to clients information, is I'll look at the data loss and see where I'm at from an evidence preserving, especially in car crashes. Somebody may fall in a business, I need to get a layout of this or put eyes on it. Now, like before something's changed. cars go to tow yards to get stored because they're not drivable. Oftentimes, those tow yards are looking to get rid of those vehicles quick. Because it's cost money to get there and find those cars. Because

sometimes the data recordings and evidence the electronic recordings of so the data leads to the wreck.

Yeah. And as soon as the insurance company authorizes the tow company to release the vehicle, or get rid of it, they don't they don't have an interest in preserving that. So I may miss an opportunity to collect some data, get some good photos, something that can particularly be used later, and maybe in a reconstruction if we don't get to these disadvantages really quickly.

Well, one of the things that comes to mind, from my point of view is is it you mentioned falls and slip and falls and those kinds of things. Were some of those a small local store, I've seen them record over videos, when as little as 72 hours.

It depends. Yeah, so that window of opportunity for recordings is it's very short, and there's nothing, you know, we hope a somebody that has some sort of that fall, you know, in their business or home or something and there's video, you know, there's a hope they do the right thing to preserve that. But until they're put on notice, there's nothing to stop them, there's nothing stopped them from preserving that.

And so one of the things that we do in those situations is to send a spoliation letter immediately. So the sooner they call, at least we can send that spoliation letter saying, you know, hey, preserve this evidence. And truthfully, in my experience, they're not necessarily bad guys trying to destroy evidence, they that those videos on it forget, probably 15 years ago, I did a trial a big maybe 20 years ago, I did a a jury trial with a, in a big box store that sold like lots and lots of stuff. And they were charging a guy with shoplifting. And the guy had, he would go and they used to have these tickets that you would pull off the item. And then you take it up front, you'd pay for it, and then you go load it on your stuff? Well, he would, the allegation was that he would pay for item A, which was small and inexpensive. And he would collect item b That was big and very expensive. And then he would walk out of the store with it. Well, what they found what they used the evidence that they use to, to tell that story or to try to show that this person had done these things was they had these videos that they had, and this was a long time ago. And they had very high resolution videos of what was going on in this in this particular instance. So as you mentioned, the higher the resolution, the larger the bigger space, the bigger the space is required to store these things. So even if they're not necessarily intentionally trying to destroy evidence, the fact is, nobody has the capacity to deal to to collect high resolution data, high resolution video for longer and longer and longer periods of time. Just from from a practicalities presume sake, they've got to free that that storage space up to record more of a data.

Yeah, and I think a lot of people with security systems installed their, their agenda is I want to record the here. And now if something happened here now in here now can be interpreted to five minutes ago to five days ago. Beyond that people don't have an interest in or need to preserve that. Whereas we do video and photographic evidence has a huge impact, particularly if something did go to trial to show a juror or a judge. Here's a picture of it. Here's a video watch this. And we'll show you what these words on a paper saying it's has a huge impact. Well,

one of the other things that I think is comes up and is a problem if you don't, if people don't act quickly as witnesses are sometimes readily available right after something happens. You know, maybe a co worker who's there a co worker who's, you know, yeah, I know I saw exactly what happened, man, give me a call and I'll and I'll tell I'll have your people give me a call. And then three months later, maybe they've changed their position. Maybe they have a new job, maybe they've moved maybe they've changed their phone number, and then that evidence is lost forever. When instead, if we'd have been contacted more quickly, what we could do is we can we could go and we could have you get a video or audio Recording of that person's testimony or do something to preserve that test a person's testimony.

Yeah, I witness testimony is very valuable. And like you mentioned, it has a time date stamp on it. One. It seems to be nowadays, a lot of travel work is very popular, you will travel for work, whether it's traveling medical providers, traveling contractors. So that means they're moving around a lot. And we may not find him in three months, I can think of a few cases that we've had, where I've had to talk to a witness rather soon after the loss. And the witness go, oh, by the way, can I show you a picture of that? No, they knew that. Now Had that been 368 months down the road. Two things could happen. One, we may not find that witness, or two, they could have deleted that picture thinking, Well, you know, nobody's asked me about this. So I can just get rid of it. Now, nobody's asked me. Whereas if we're there quickly, and they can relate that relevance, witnesses may be able to offer something by the way I have this or I know this, which is super, super helpful.

Well, even if it's later in time, when we have been contacted you bring up some interesting points that were made me recall some incidences, lots of incidents actually, where, even though it was significantly late later in time, we were able to go back and find evidence of I can think of one example where we found evidence, a year later that showed that a person was working, at the time of the collision switch opened up a commercial policy for a catastrophic case that otherwise wouldn't have been there. I can think of another example where much later in time, we were able to find the video evidence of a person who was traveling behind a motorcycle accident, it was a that evidence was able to show. So even later in time, a year later, two years later, we can still we can still sometimes if we do a thorough investigation, or proper investigation and use the skills you've developed, developed over a long career, we can find a lot of times we can find evidence that will help people prove their cases is that had been your experience.

Absolutely. One of the things I specialized in during my law enforcement career was the victim witness interview, actually co developed a model used nationally to interview children. So in that's revolved on how, how to help somebody retrieve and report memory. So I have some strategies and techniques to help somebody to be able to search memory to find these events, and then be able to report those memories in different strategies that can go over there with them, not hoping they create information, but just recall moments recall things that they may not think is important, but to you, and they're going to be very important, the slightest little detail, I want to help them remember that because it's likely going to have value to it. So

what are those techniques? How does that process work?

It's basically the short version is, is dependent on a person's free recall memory of me setting up an event, this is what we want to talk about, give them an instruction, how to narrate that event. And then I get out of the way I step out of the way uninterrupted, listen to that, and then go back over that account in detail. But also chronologically in order. That's a critical compart component to having a witness recall a statement is going over their statement in the chronological timeline, because that's how memory works, sometimes may even go backwards in chronological timeline to see if we can trigger thoughts and memories. So

so really, your it sounds like to me that you're you're finding points of data points that will sort of anchor that person's recollection. And then given them the space, the time and the encouragement to try to fill in those gaps.

Yeah, and it also involves a proper instruction on the proper instruction to how I would like them to report that memory to me, and involves a lot of use of very extended open ended questions. Let me ask you

this. Are there other things that affect evidence, physical evidence in terms of besides time, besides just time? One thing that comes to my mind is whether whether

I was gonna say the same thing, weather has a significant impact. Some of our injuries may involve weather. Sometimes those weather conditions repeat themselves, such as heavy downpours and rains. Sometimes they don't sometimes that could have been a isolated type of weather event. And maybe we need to respond to that now, to get video evidence, look at the scene of where it happened, because that weather event may not repeat itself, such as you know, summertime storms and things like that they often pop up unexpected. Some events, injuries may happen in places where weather can repeat itself, with such as a low lying area that floods we can probably repeat that again in the next weather cycle. But there could be something involving high winds, hurricanes, which we know about that and tornadoes that don't repeat themselves and may cause injury. We need to see that now.

I'm thinking about tire impressions and those kinds of things. I'm thinking about any anything that you know, you know, they talked about football being a game of inches, you know, Know where a person is line of sight can be a huge thing. And you can't really go back and recreate that line of sight without, you know, sometimes without having a very firm evidence

that shows where a person was relative to other things, something else or other things. Yeah,

thinking about that related to construction sites. We know that's changing data. We know that changing hourly, those are even more time sensitive. If that injuries involving a construct something that's actually being constructed, remodel, renovating. We already know alligators changing by the hour. So the time that time window for evidence is really shorten that because we know it's changing.

Yeah, and they're not gonna they're not going to slow down because somebody's injured. They have a whole team and they have projects and they have deadlines, and they have banks and money and everything else that are out there. Scott, thank you so much for being here. I appreciate you joining us and I think people benefit from the thanks if you told them today. Thank you.

Thank you very much.

Thank you for joining us, and we'll see you next time.

Welcome to the catastrophic comeback podcast with American Injury Lawyer Clark speaks, helping you find hope, purpose and joy after a catastrophic injury.

So now we're going to move away from talking about your electronic investigations and

talk more about your physical investigation, evidence would be a good way. Yeah, physical investigators. Can

you talk to me about that, and it doesn't matter if you start now or six months from now. Now,

if there's going to be a case, if somebody wanted to open a case, it's now when I first got into law enforcement and 1991, it felt like evidence kind of preserved itself for a while. Now it does not just speaking in terms of electronic evidence, if there's a crash, fall at a business, there could possibly be video, what I have found over the last 10 years is that storage ability that these businesses or traffic camps store is shortening and shortening, because they're collecting a lot of data, but nowhere to put it. So I can, I can remember 10 years ago, I might have had six months, I could go back and pull video somewhere. Now we're getting into that 45 days, with some places only store for 45 days, or maybe even less, then there's you already mentioned changing tire tracks, tire, skid marks, things like that. weather effects, that weather washes out away. imperfections in parking, lots, stores, doors, roadways, there's a risk that could be fixed, we need to document that as soon as possible. We want to see that condition, what was that condition at the time of this injury, and we need to document that soon. And those conditions change. They change sometimes sooner than later,

when especially in very serious accidents, where you have insurance companies, insurance investigators, people from corporations who recognize the liability, that rent liability that they have in a certain situation, and they go and they start the process of pulling that video, and then they can't find it later, they start the process of cleaning up job sites where they have been negligent, they start the process. And people I think are surprised to learn that this employer who they may have worked for or with for a long period of time, and they thought they had a really good relationship and maybe the employer came by and visits them or their family in the hospital and just brings them food tells them hey, I'm so sorry, this happened, we're going to take care of you don't worry. And then they're surprised later to learn that while that conversation is going on job sites are being cleaned up and and my experience is it's not necessarily the guy you're talking to that person may genuinely care about you and be a good person and be concerned. It's a whole another team of individuals that you have never heard of never had any contact with that are that are that are responsible for doing these investigations. But they changed. For example, in a in a crime scene, let's go back to your law enforcement days. In a crime scene. When you after something happens, how important is it to to preserve that scene that cite that area, so that that evidence is not changed? Or contaminated or lead to a different and false conclusion? I'll

sum that up in one word immediately. There's no other alternative. But immediately this has to if there's concern an area has events to preserve it's now it's not it's not we don't think about it. We don't have a discussion. We have to preserve this now. And that's from a prediction we and that's maybe not even knowing for sure evidence could be there. It's from a prediction standpoint, is there likely evidence could be in this geographical area this room? Let's Let's secure it right now. There's there's no time to wait on that. It goes away quick. Contamination is a huge problem. When we walk in a building and a street sidewalk, we we leave stuff behind, we pick things up. So evidence goes away. Super quickly. There's just no time to wait.

So yeah, I mean, so my mom lives with me. And so she loves to watch Perry Mason She loves to watch Murder, She Wrote, she loves to watch Matlock and some of those some of those shows and and when you say that it brings to my mind those shows when there's a there's a crime and immediately there's always somebody who doesn't appreciate the the importance of maintaining that scene and they go in and they do something that would really change the way that somebody would analyze this information and lead the people who see who who have to reconstruct what happened and And whose fault it was to an erroneous conclusion. And so I can understand what you mean when you say how important it is to protect that site, preserve that site. And so the way that people can, can do that is to contact their their, you know, if you know, their law firm or their lawyers and making sure their lawyers have an adequate investigation component of their firm to be able to go and find Find these find that preserve that scene, collect that evidence and, and preserve the evidence that will support their claims.

Yeah, time sensitivity is extremely important. For example, if one of our team members sends me sends me a case for an investigation, one of the first things I do is I look at the data loss instantaneously, when I'm given to clients information, is I'll look at the data loss and see where I'm at from an evidence preserving, especially in car crashes. Somebody may fall in a business, I need to get a layout of this or put eyes on it. Now, like before something's changed. cars go to tow yards to get stored because they're not drivable. Oftentimes, those tow yards are looking to get rid of those vehicles quick. Because it's cost money to get there and find those cars. Because

sometimes the data recordings and evidence the electronic recordings of so the data leads to the wreck.

Yeah. And as soon as the insurance company authorizes the tow company to release the vehicle, or get rid of it, they don't they don't have an interest in preserving that. So I may miss an opportunity to collect some data, get some good photos, something that can particularly be used later, and maybe in a reconstruction if we don't get to these disadvantages really quickly.

Well, one of the things that comes to mind, from my point of view is is it you mentioned falls and slip and falls and those kinds of things. Were some of those a small local store, I've seen them record over videos, when as little as 72 hours.

It depends. Yeah, so that window of opportunity for recordings is it's very short, and there's nothing, you know, we hope a somebody that has some sort of that fall, you know, in their business or home or something and there's video, you know, there's a hope they do the right thing to preserve that. But until they're put on notice, there's nothing to stop them, there's nothing stopped them from preserving that.

And so one of the things that we do in those situations is to send a spoliation letter immediately. So the sooner they call, at least we can send that spoliation letter saying, you know, hey, preserve this evidence. And truthfully, in my experience, they're not necessarily bad guys trying to destroy evidence, they that those videos on it forget, probably 15 years ago, I did a trial a big maybe 20 years ago, I did a a jury trial with a, in a big box store that sold like lots and lots of stuff. And they were charging a guy with shoplifting. And the guy had, he would go and they used to have these tickets that you would pull off the item. And then you take it up front, you'd pay for it, and then you go load it on your stuff? Well, he would, the allegation was that he would pay for item A, which was small and inexpensive. And he would collect item b That was big and very expensive. And then he would walk out of the store with it. Well, what they found what they used the evidence that they use to, to tell that story or to try to show that this person had done these things was they had these videos that they had, and this was a long time ago. And they had very high resolution videos of what was going on in this in this particular instance. So as you mentioned, the higher the resolution, the larger the bigger space, the bigger the space is required to store these things. So even if they're not necessarily intentionally trying to destroy evidence, the fact is, nobody has the capacity to deal to to collect high resolution data, high resolution video for longer and longer and longer periods of time. Just from from a practicalities presume sake, they've got to free that that storage space up to record more of a data.

Yeah, and I think a lot of people with security systems installed their, their agenda is I want to record the here. And now if something happened here now in here now can be interpreted to five minutes ago to five days ago. Beyond that people don't have an interest in or need to preserve that. Whereas we do video and photographic evidence has a huge impact, particularly if something did go to trial to show a juror or a judge. Here's a picture of it. Here's a video watch this. And we'll show you what these words on a paper saying it's has a huge impact. Well,

one of the other things that I think is comes up and is a problem if you don't, if people don't act quickly as witnesses are sometimes readily available right after something happens. You know, maybe a co worker who's there a co worker who's, you know, yeah, I know I saw exactly what happened, man, give me a call and I'll and I'll tell I'll have your people give me a call. And then three months later, maybe they've changed their position. Maybe they have a new job, maybe they've moved maybe they've changed their phone number, and then that evidence is lost forever. When instead, if we'd have been contacted more quickly, what we could do is we can we could go and we could have you get a video or audio Recording of that person's testimony or do something to preserve that test a person's testimony.

Yeah, I witness testimony is very valuable. And like you mentioned, it has a time date stamp on it. One. It seems to be nowadays, a lot of travel work is very popular, you will travel for work, whether it's traveling medical providers, traveling contractors. So that means they're moving around a lot. And we may not find him in three months, I can think of a few cases that we've had, where I've had to talk to a witness rather soon after the loss. And the witness go, oh, by the way, can I show you a picture of that? No, they knew that. Now Had that been 368 months down the road. Two things could happen. One, we may not find that witness, or two, they could have deleted that picture thinking, Well, you know, nobody's asked me about this. So I can just get rid of it. Now, nobody's asked me. Whereas if we're there quickly, and they can relate that relevance, witnesses may be able to offer something by the way I have this or I know this, which is super, super helpful.

Well, even if it's later in time, when we have been contacted you bring up some interesting points that were made me recall some incidences, lots of incidents actually, where, even though it was significantly late later in time, we were able to go back and find evidence of I can think of one example where we found evidence, a year later that showed that a person was working, at the time of the collision switch opened up a commercial policy for a catastrophic case that otherwise wouldn't have been there. I can think of another example where much later in time, we were able to find the video evidence of a person who was traveling behind a motorcycle accident, it was a that evidence was able to show. So even later in time, a year later, two years later, we can still we can still sometimes if we do a thorough investigation, or proper investigation and use the skills you've developed, developed over a long career, we can find a lot of times we can find evidence that will help people prove their cases is that had been your experience.

Absolutely. One of the things I specialized in during my law enforcement career was the victim witness interview, actually co developed a model used nationally to interview children. So in that's revolved on how, how to help somebody retrieve and report memory. So I have some strategies and techniques to help somebody to be able to search memory to find these events, and then be able to report those memories in different strategies that can go over there with them, not hoping they create information, but just recall moments recall things that they may not think is important, but to you, and they're going to be very important, the slightest little detail, I want to help them remember that because it's likely going to have value to it. So

what are those techniques? How does that process work?

It's basically the short version is, is dependent on a person's free recall memory of me setting up an event, this is what we want to talk about, give them an instruction, how to narrate that event. And then I get out of the way I step out of the way uninterrupted, listen to that, and then go back over that account in detail. But also chronologically in order. That's a critical compart component to having a witness recall a statement is going over their statement in the chronological timeline, because that's how memory works, sometimes may even go backwards in chronological timeline to see if we can trigger thoughts and memories. So

so really, your it sounds like to me that you're you're finding points of data points that will sort of anchor that person's recollection. And then given them the space, the time and the encouragement to try to fill in those gaps.

Yeah, and it also involves a proper instruction on the proper instruction to how I would like them to report that memory to me, and involves a lot of use of very extended open ended questions. Let me ask you

this. Are there other things that affect evidence, physical evidence in terms of besides time, besides just time? One thing that comes to my mind is whether whether

I was gonna say the same thing, weather has a significant impact. Some of our injuries may involve weather. Sometimes those weather conditions repeat themselves, such as heavy downpours and rains. Sometimes they don't sometimes that could have been a isolated type of weather event. And maybe we need to respond to that now, to get video evidence, look at the scene of where it happened, because that weather event may not repeat itself, such as you know, summertime storms and things like that they often pop up unexpected. Some events, injuries may happen in places where weather can repeat itself, with such as a low lying area that floods we can probably repeat that again in the next weather cycle. But there could be something involving high winds, hurricanes, which we know about that and tornadoes that don't repeat themselves and may cause injury. We need to see that now.

I'm thinking about tire impressions and those kinds of things. I'm thinking about any anything that you know, you know, they talked about football being a game of inches, you know, Know where a person is line of sight can be a huge thing. And you can't really go back and recreate that line of sight without, you know, sometimes without having a very firm evidence

that shows where a person was relative to other things, something else or other things. Yeah,

thinking about that related to construction sites. We know that's changing data. We know that changing hourly, those are even more time sensitive. If that injuries involving a construct something that's actually being constructed, remodel, renovating. We already know alligators changing by the hour. So the time that time window for evidence is really shorten that because we know it's changing.

Yeah, and they're not gonna they're not going to slow down because somebody's injured. They have a whole team and they have projects and they have deadlines, and they have banks and money and everything else that are out there. Scott, thank you so much for being here. I appreciate you joining us and I think people benefit from the thanks if you told them today. Thank you.

Thank you very much.

Thank you for joining us, and we'll see you next time.