I would like to hear your thoughts on this one:

A party in a personal injury case holds onto evidence, that may be damaging to their case, of their own free will. They store this at their own expense and at some minor inconvenience to themselves.

Later, it is discovered that due to poor storage conditions the evidence is substantially destroyed.

Here's the question: If a party stores evidence that may be damaging to their case, willingly and not under court order, are they obligated to store it in a manner that retains the integrety of the evidence?

Wayne

Reply to post by Wayne Cahilly, on December 23, 1999 at 11:38:54:

Of course this one for the ruling class (lawyers) but I vote yes.
Very treely,
lew

Reply to post by lewbloch, on December 23, 1999 at 11:38:54:

And to extend the scenario a bit- What about when a lawyer collects a piece of evidence of his own accord, and not understanding much about trees, stores the evidence improperly?

It usually ends up "Oh, well it wasn't important anyway."

Reply to post by Wayne Cahilly, on December 23, 1999 at 11:38:54:

Wayne,

The decission on that will vary from place to place and who the party is.

If it is an Atourney or an expert witness they have certain duties of disclosure.
If on the other hand it is the owner of a tree that has failed and they store the
broken section of a tree that has injured somone then they may have no duty to store
or retain it unless so ordered by a statute or the courts.

The role then of the system is to uncover as much of the truth as possible. Good attouneys
need to ask lots of questions, then some more often to just get a hint of which way they need
to go.

Mark.

Reply to post by Wayne Cahilly, on December 23, 1999 at 11:38:54:

I have followed this with interest.

In the UK the situation would be that if you are going to store evidence it has to be correctly stored. I have not had personal experience of the situation Wayne describes but we do things a lot differently over here.

Recently, the whol of the Civil Procedures have been revised and Part 35 of the Civil Procedures Rules, (CPR) to us, deals with experts etc. You might want to check it out
by accessing the Lord Chancellor's Web Site.
I think its at
http://www.lord-chancellor.org.gov.co.uk
or some variation of that. You can down load the part 35 at no charge.

You could try the UK.gov.org.co.uk
and follow promptds to the Lord Chancellor's page. The Lord Chancellor is our equivalent of the Chief Justice of the Supreme Court.

I think you will find the apprach very different

Reply to post by Dealga OCallaghan, on December 23, 1999 at 11:38:54:

Dealga, the link is http://www.open.gov.uk/lcd/

BTW, the form of addresses for internet resources can indeed be confusing. I think that the domain indicators - .gov for government agencies; .com or .co for commercial ventures; .org for organizations; .net for networks; and .edu for educational institutions - are mutually exclusive and you won't find them combined in any single address. Can anyone clarify that?

I've taken a brief look at 35 CPR Experts and Assessors as well as the Practice Direction for Part 35. The principal difference I see from US practice is that the experts report is to be addressed to the court rather than the client. The overriding duty to the court is explicit but I don't think varies in effect from the overriding duty in the US to objective fact. I'll take a look at our Federal Rules of Civil Procedure and Federal Rules of Evidence when I have some time. Are there specific and significant differences in the perofrmance or role of experts that you are aware of and can explain?

One fact that probably differs significantly between UK and US practice is that the Federal Rules apply to the Federal courts. The various Federal Districts all have variations. The various states may or may not adopt the Federal Rules of the district in which the state lies. There is probably much more uniformity throughout the UK than is found by experts throughout the US. In addition there is probably a great deal of variation from court to court because of judicial discretion. Local experience is really necessary to know the exact rules which will apply.

I did not find any reference, on a brief read of 32 CPR Evidence concerning the care of evidentiary material. Is there a specific citation?

Reply to post by Dealga OCallaghan, on December 23, 1999 at 11:38:54:

Now that is kind of what I thought! Assuming (man am I stupid or what?) that if the basic rule is "if you're going to do something, then you have to do it correctly" applies in more then making nirtoglycerin, I figured that on arriving at the location of the stored evidence that I would find something useful. To my surprise, the only physical evidence in this instance was kept out of doors in the back of a dumptruck, uncovered for several years, and was then removed from the truck with timbertongs resulting in the "evidence" being substantially destroyed.

I think what really floored me, was I seemed to be the only one present (5 city arborists, 4 lawyers, and the opposing expert)who thought that maybe just maybe there is a better way to keep stuff! This is in contrast to a situation where I handled evidence and had two sheriffs officers attending me the entire time, and one taking notes on everything done and noting the time!!

So, does this serve as evidence that there are differing standards in civil and criminal cases?

Reply to post by Wayne Cahilly, on December 23, 1999 at 11:38:54:

I'd like to diverge on the topic a bit. What are the rules in various jurisdictions about examining evidence and performing various tests? How far can an expert go?

Example: Pressler (increment) core samples have been collected by Anne Expert. Can she then proceed to clean, shave and smooth, and stain those cores, without the opposing side's knowledge or permission? What if Anne Expert obtains cores that the opponent's expert had collected? What documentation is necessary? Should representatives for the opponent (their expert) be present during the treatment processes?

Reply to post by Russ Carlson, on December 23, 1999 at 11:38:54:

Good questions Russ. I'll go to the Federal Rules of Evidence later, but off the top of my head here are a few observations.

One would guess Anne Expert would need permission to properly collect the samples... if the samples come from property belonging to anyone but her client - including the opponent - she'd need permission from that property owner or an order from the court. So, is it up to counsel to structure the permission? The request and the grant? Blanket permission, "conduct your investigation" (with no stated conditions); or "conduct interviews;" or "collect samples;" or "collect and analyze samples?"

Is it just understood that samples are collected for the purpose of testing? And if testing is destructive it would seem that should be a known also. What seems a bigger issue in terms of expert behavior is destructive collection.... going around the site scraping bark off the fallen logs or raking up all the duff looking for earthworms or whatever and in the process destroying evidence or disturbing conditions that the other expert should have had an opportunity to see.

One would also guess Anne conducts her investigation with the freedom or the constraint of the permission. So conversely, what the opponent knows depends on whether his/her permission was required and how detailed the permission was. Whether one side knows what the other is doing during investigation probably varies with conditions such as permission, but in the US they should be learning of the results during the discovery phase.... it should not wind up a complete suprise.

I think we all learned some things from the OJ spectacle. Staining a few increment cores is no big deal, but your client probably wants to know the court will actually admit the $10,000 multi-lab DNA analysis before authoizing you to spend the money or before building a case on it. So upfront discussion and disclosure are not such bad things.

And maybe Anne Expert wants to allow Justin Thyme, the opposing expert, present to observe her testing or sample collection and vice versa. That way if there are errors or questions they are made up front, not left to trial.... "how do we know your expert properly collected this sample... was it contaminated by her own DNA?"

Maybe the most basic questions for experts are: how much do you do on your own (so you need an understanding of what is proper) and how much do you do only with specific authority from counsel or court?

Reply to post by Russ Carlson, on December 23, 1999 at 11:38:54:

I have often provided half of the sample to the opposing expert(if he or she was at the scene when the sample was collected, or if the attorney for whom they are working was there). I have been in situations when the other side has samples that we could have taken but did not for whatever reason and watched the attornies with whom I was working make hay out of the situation in court. I can't actually say that there was any grounds for objection, but I have observed that indignation with sincerity and fervor can lead to a judge saying "oh, ok," and disallowing the evidence.

I was asked once by the judge why I did not collect the same samples that the other expert had collected and I said "because they have no bearing on my final opinion" and the judge actually said "there you have it, they are not important or both sides would certainly have collected them or requested the results of testing during discovery" and disallowed the report!! Now that was enough to make me wonder...........

Reply to post by Scott Cullen, on January 04, 2000 at 20:52:24:

good discussions, but mostly up to the attornies and/or judges. I have done research on sites without the other side present, AND have actually been video-taped doing my schtick on the scene one time.
Very treely,
Lew

Reply to post by lewbloch, on January 05, 2000 at 05:17:06:

Which side paid for the makeup artist? Got to keep up appearances.

Reply to post by Scott, on January 05, 2000 at 18:07:10:

Scotttttt, Babe! I'm offended!!! You know I don't need makeup artists. I can look this way naturally.
very trooly,lew

Reply to post by lewbloch, on January 06, 2000 at 06:20:33:

Hmmm, that is frightening...

Reply to post by Wayne, on January 04, 2000 at 20:52:24:

This brings up an interesting point. At what time in the investigation do you decide what is pertinent or relavent?

Obviously, soil nutrient testing is not needed when a tree is a structural hazard. What if you collect a soil sample while on site, then later decide it isn't necessary? Are you obligated to analyze it? Do you have to maintain it as evidence?

The followup question to this is what about replaceable evidence? A soil sample can be collected again (for normal situations- chemical tresspass may be different). A core sampe from a standing tree can be replaced. But a piece of fallen limb may be the only evidence in a case, and not replaceable.

Reply to post by Russ Carlson, on January 05, 2000 at 13:01:43:

From a common sense standpoint I think there is no single answer. It will be driven by the nature and significance (I guess that means the value or potential penalty or loss) of the case. If it's a $5,000 tree appraisal you won't spend $1,000 in field data collection and $2,000 in lab fees to be absoultely sure of everything. If it's a multi-million $ liability case maybe you collect everything that could conceivably be of use while you absolutely know it's available. You don't risk that it wil be replaceable or obtainable later on.

There's also a procedural issue. There is a great danger in telling yourself up-front that x,y or z is not or will not be significant. (OK, I suppose that in the failure of a big oak tree you can pretty safely say that determination of the precise forma specialis of the Acer Palmatum underneath it is not significant.) But part of a scientific or forensic investigation is letting the facts lead you to conclusions, not letting conclusions limit your consideration of facts.

Reply to post by Russ Carlson, on January 06, 2000 at 18:01:37:

Hmmmm, What is frightening??? Russ in his bunny slippers???

Reply to post by Scott, on January 06, 2000 at 21:32:32:

I agree, Scott. In most cases of tree failure, soils or tissue analysis are not necessary. However, in one recent case, I found them to be not only helpful, but necessary to show deficiency-induced brashness in the wood. They provided evidence for the causation of the condition that led to failure. The facts- brash wood and extremely slow incremental growth- dictated the need for testing.

Reply to post by Russ Carlson, on January 07, 2000 at 12:13:57:

I'm sorry Russ, I know we expanded this discussion once before, but can't recall all the details. Did we come to the conclusion that "brash wood" and small growth increments are not necessarily both indicators of weakness? In many instances small growth increments - as in old first growth - result in very strong timbers. Woodworkers seem to prize old growth vertical grain timbers for strength, stability and character.

Reply to post by Scott, on January 10, 2000 at 10:01:49:

Annual increment width is not in itself an indicator of brashness. It is more dependent on the causes. It can suggest that brashness may be present. In the case I mentioned, poor moisture and nutrient availability led to both very slow growth and the brashness. With some woods, especially the ring porous woods, large vessel cells form early in the season. If growth is extremely slow, there is a great abundance of thes cells compared to the late wood cells. As a result, there is much less cell wall material compared to open space, resulting in a low specific gravity (weight/volume) and brashness.

A reduction of cellulose, such as in some compression wood in some softwoods, can also result in brashness. Degradation of cellulose by decay results in brashness- we've all seen this often enough.

Reply to post by Russ Carlson, on January 10, 2000 at 14:08:40:

10-4. Thanks for the refresher. Is "brashness" a qualitative description only based on the visual observations you describe or are there also quantitative measures.... specific gravity tests, Fractometer (TM), whatever? As with Shigometer (TM) readings or starch staining, would any such quantitative measures be absolute or relative to an established base line for site, species, etc.?

Reply to post by Scott, on January 12, 2000 at 00:07:16:

And of course wood characteristics must be distinguished from the brahness of some of us characters who show up here on the Knothole!

Reply to post by Scott, on January 12, 2000 at 00:07:16:

Brashness is a physical characteristic, marked by soft, weak wood, and very low specific gravity. The wood tends to fracture readily across the 'grain'. There is not usually any splintering or tearing of the fibers, but a blocky breaking across the annual rings.

I don't know of any particular measurements, except that the breaking angle and breaking force (Fractometer) will be very low. Specific gravity (density, or grams per cubic centimeter) will be unusually low for the species. Accurate measurement of specific gravity is not easy. The Fractometer will give readings far below normal, but then you still have to interpret them as to the cause. Fungal decay will give similar readings. Brashness may be due to the decay or to other factors. Poor growth or nutrient deficiency is often NOT localized, but widespread in the tree, including recent growth rings.